SpectrumTalk

Congress Nudges an FCC on Hold
Agency Tackles Backlog of Pending Matters After Democrats Complain

By Charles Babington
Washington Post Staff Writer
Washington Post Wednesday, April 4, 2007; D01

Rep. John D. Dingell (D-Mich.) scolded the five members of the Federal Communications Commission when he finally got them before a powerful subcommittee last month.

The FCC botched handling of cable television franchising, racked up a backlog of unanswered consumer complaints, and dallied on various disputes between industry rivals with little oversight from the previous Republican-controlled Congress in recent years, the chairman of the House Energy and Commerce Committee said in the March 14 hearing.

Within days, word spread that the FCC was accelerating efforts to complete action on about 150 pending matters -- from regulating cable television service in apartment buildings to settling quarrels over the distribution of telecommunications funds in rural areas. Some analysts saw the move as a direct response to lawmakers' complaints.

With Democrats running Congress, FCC Chairman Kevin J. Martin is "responding to the sense that Dingell doesn't like backlogs," said Andrew Jay Schwartzman, president of the nonprofit Media Access Project. "He doesn't want to be on the wrong side of Dingell."

Dingell's blast was part of the heightened scrutiny and criticism Congress has heaped on the FCC in the past three months, pressure that could help shape regulatory policies this year in the rapidly changing landscape of media and telecommunications. Controlling Congress for the first time in a dozen years, Democrats are pushing, prodding and sometimes skewering the commission on subjects they think have been sidetracked or mismanaged for years, including media-ownership rules and mega-mergers like the one between AT&T and BellSouth last year.

Lawmakers cannot dictate the independent agency's actions. But some say they believe the FCC is taking their concerns seriously.

The oversight hearing by the House Commerce subcommittee on telecommunications last month was the first of several such sessions planned for the 110th Congress. It ended a three-year drought of Capitol Hill appearances by all the commissioners, said the subcommittee's chairman, Edward J. Markey (D-Mass.). "That in and of itself is sending a message," he said.

In a recent interview, Martin said the commission tries to be responsive to Congress's concerns without relinquishing its independence. "Is the backlog something that Congress has an influence on? Sure," Martin said. "But we started to address it last fall," when Republicans still controlled both chambers.

Martin and two fellow commissioners are Republicans. The other two are Democrats.

Congress's ability to influence the FCC's decisions is limited and hard to measure, said a number of people who follow telecommunications policy. If nothing else, they said, the current Congress can prod the agency to think twice before shrugging off issues important to many Democrats, such as encouraging more diversity in media ownership and not rubber-stamping the approval of large mergers. And there's always the implicit threat of trimming the FCC's budget if the party controlling Congress is deeply displeased.

"If the FCC goes too far down a deregulatory approach on media ownership or related areas, it will face a barrage of criticism from Congress," said Gene Kimmelman, vice president of Consumers Union who tracks telecommunications issues. "And any small item that gets in the cross hairs of a majority in Congress is likely to be addressed through spending restrictions in the appropriations process. . . . The FCC needs to be extremely responsive to Congress and very balanced and even-handed as it proceeds."

In the interview, Martin said the FCC would be ignoring recent history if it dismissed Congress's concerns. In 2003, he noted, Congress overturned the commission's policy on media ownership by passing a law narrowing the proportion of U.S. households that a single owner of TV stations may reach.

"The lesson I should learn from that is, we've got to pay attention to what Congress thinks about these issues," Martin said.

He added, however, that "answering the concerns Congress may raise is not the same as doing what they ask us to do." He noted that several key lawmakers opposed an FCC decision last year to make it easier for telephone companies to enter the cable TV market in many communities. Dingell was among them.

Congress can directly influence telecom policy by passing legislation or by strongly expressing its views in hearings not involving the FCC. Earlier this year, a Senate committee was mostly hostile to a proposal by Nextel co-founder Morgan O'Brien to set aside a portion of the 700 MHz spectrum -- scheduled for auction this year -- for a public-safety broadband network to be managed by a for-profit company. Several analysts said the committee hearing was a death knell for the proposal, which would require new legislation.

On issues such as corporate mergers, lawmakers can voice their concerns and hope the FCC takes note. For example, Sen. Herb Kohl (D-Wis.) recently criticized the proposed merger of XM and Sirius satellite radio companies at a hearing of an antitrust panel he chairs. "You'd have no competition -- what a business!" Kohl told a Sirius executive.

Other lawmakers appear to favor the merger, and the FCC commissioners will conduct months of inquiry and hearings before ruling. Given the strong, divergent feelings in Congress and the private sector, the commissioners will try to preserve their prerogatives while staying aware of the political dynamics, said Jessica Zufolo, an industry analyst for Medley Global Advisors.

"That's why they move slowly and cautiously," she said. "That may be the modus operandi for the FCC for the remainder of this term."