November 6, 2008  ·  Lessig

So a new President means (the chance of a) new Chairman of the FCC. Before he passes, it is timely to begin to reflect a bit upon the chairmanship of the current chairman, Kevin Martin.

A clue that this is an interesting and important chairman is the fact that he’s an equal opportunity anger-er — the left has loved and hated him, the right has loved and hated him. I’m an increasingly strong admirer. His contribution to sensible thinking about infrastructures was established with his taking the lead in imposing network-neutrality-like rules on Comcast. But it is the unanimous decision freeing “white space” spectrum that will, I think, ultimately be the most important. The decision is not only right. It shows a liberation from a rigid and flawed understanding of the best way to maximize the economic value of “spectrum.” This clear thinking needs to expand beyond these bands. But it is an important start.

  • Dan

    I’m willing to try to be a little bit nuanced with Martin (especially since Harold Feld tends to concur), but don’t you still think it was a bad idea for Martin to follow the Powell doctrine of classifying broadband as “information services” rather than “telecommunications services” and then equalizing telco DSL to that standard instead of vice versa?

    Maybe the real solution is to call Internet Service a new beast entirely, but it seems to me it should have been more similar to telecommunications all along, with all of those open-access type controls to protect competition in the market.

    Martin may be more of a centrist than Powell, but I think he still defines the center too much from the big-corp extremes. Freeing white space spectrum may be nothing more than a lame duck (he had to have seen the writing on the wall, that close to election day) going with the flow. Martin’s behavior seemed to me most characteristic of someone trying to stay upright on a violently swinging high-wire, as opposed to someone who really had some clear idea of where to fly.

    It took a lot of advocacy from public interest organizations to define the other side of the extremes opposite to the big corps, in order for Martin to find a center that was somewhere near the actual center. And it will take continuing effort by those same orgs (MAP, PK, EFF, CDT, KEI, Common Cause, etc., etc., etc.) to keep things on track, even under a Dem FCC Chairman (unless, perhaps Copps or Adelstein, but apparently they are not first tier considerations because they may not have close ties to Obama’s team).

    In the end, my gut sense of Martin was that he was a follower, not a leader, at best a delicate balancer of an overall balance defined by others. Just because he wasn’t as bad (i.e., ideologically dogmatic and blindered) as Powell, doesn’t necessarily mean he was “good” on the merits. Powell set such a low bar that just about anybody looks better by comparison.

  • Steven Brock

    As a student, I saw the decisions of Chairman Martin as a welcome voice in a government that often seemed anti-progressive. I cheered him on when he ‘took on’ Comcast, and I hope that he continues to work against consolidation of the industry by the few.
    While I’m sure his goals aren’t the same as mine – safety from bandwidth restrictions and p2p blockage – I think he at least recognizes that increased protection for the consumer is in fact beneficial to our economy.
    I voted for Senator Obama and Darcy Burner (WA-08) because they both seemed like they were more technical minded, though I honestly have no real clue what their intentions are for the future of the internet. I hope that informed bloggers and advocates will continue to show that consumers aren’t satisfied with the current situation of near-monopolistic ISPs and uncompetitive pricing plans.

  • http://www.dslreports.com Karl Bode

    I’m afraid Martin was nowhere remotely close to being a consumer advocate, and frankly Larry, this post kind of surprises me.

    I’d have to agree with Dan, who notes that Martin’s white space decision (alongside his plan for a nationwide smut-filtered wireless network, which he knows will never materialize) is geared more toward trying to appear more pro-consumer before potential constituents as he eyes a post-FCC political career in the Carolinas than it is having any kind of real long term vision. With the money supporting White Spaces, it would have been approved sooner or later for broader testing.

    As for the Comcast decision, no new rules were created, no fines were issued, and the biggest result was a broad bush toward caps and metered billing. I know consumer advocates really think they won a big victory there, but as someone who covers this industry ten hours a day, I can tell you things have not changed. Cox still employs the same upstream P2P throttling Comcast got in trouble for, and ISPs like Clearwire and Sprint still simply bury the invisible limits of their networks in TOS fine print.

    As for Martin’s earlier FCC history, he never met a telco merger he didn’t love, he consistently repealed consumer protections wherever possible, fought the accurate mapping of broadband in the United States, and consistently acted to simply prop up a duopoly market.

    I think the meme that “he pissed off all political stripes so he must be right” simply isn’t accurate. Pissing off the cable industry to appeal to family values voters doesn’t make you right. Picking on Comcast because it helps AT&T doesn’t make you right.

    I will say he was one of the more intelligent and politically savvy commissioners the FCC has ever had, leaking voting results early to help frame public opinion on decisions, rushing to votes without his fellow commissioners being informed, and working with telco lobbyists to frame certain anti-consumer efforts as pro-consumer. For example helping the phone companies convince the United States that gutting the existing franchise system would result in lower TV prices, when really the move was about legalizing cherry picking, stripping consumer protections, simplifying lobbying, and eroding eminent domain rights.

    If he managed to convince Larry Lessig he was pro-consumer, he certainly has some skills as a politician.

  • http://24Ahead.com/ 24AheadDotCom

    OT: why do the privacy polices of change.gov and lessig08.org share some boilerplate? Just a coincidence or something else?

  • Grace Pok

    I’m visiting your website after listening to your appearance on Brian Lehr’s show today, because what you said about using the internet to achieve a second wave of change sounded innovative and worth more research. However, I am surprised to read your praise on Kevin Martin, because the first time I heard about Kevin Martin was through Bill Moyer’s Journal aired on Nov. 2, 2007, segment titled Minority Media (SEE http://www.pbs.org/moyers/journal/11022007/watch.html)

    Karl Bode’s comment above seem to reflect the truth of what has happened with FCC under Kevin Martin. I am glad that the new administration is taking over, because people such as Kevin Martin that Bush administration has appointed have done enough to erode the public confidence.

  • Michael Couzens

    My comment is as a broadcast specialist (television and radio), that is, versed in technologies more modern than cuneiform writing but not by much. I’m interested in the common carrier issues, but must leave comment there to others more steeped in it from day to day.

    From my perspective, the DTV roll out has been largely mishandled, from Chairman Al Sikes down to the present chair. Currently the Commissioners are spending substantial time every week traipsing around the country holding DTV briefings, as though this were a way to inform the public. (Compare: What does Coca Cola or Proctor & Gamble spend to introduce a new product?) In actuality, these intimate local meetings with 200 or so interested citizens are a means of covering Commissioners’ tails for their poor planning and the government’s poor outreach.

    An experimental roll out of DTV in Wilmington, N.C. early this year was a debacle. It was not designed with proper measurement of consumer knowledge, reaction or satisfaction. Even so, what was obvious about it looked very bad. Since then the Commerce Dept. and the Chairman have been admitting some problems but basically saying the whole DTV program is succeeding. One gets tired of this kind of obvious false-note propaganda. The February 17 switch-over impends.

    There’s plenty of blame to spread around in the DTV mess, certainly to Congress and especially to Sen. Stevens when he headed Commerce. But the Commission’s technical expertise could have been deployed to (1) simplify the standard for the sake of consumer comprehension (2) give more weight to mobile TV before adopting the mobile-hostile 8VSB standard, (3) demand interoperability among broadcast-cable-satellite. The Commission put DTV in the hands of those least eager to develop it, the incumbent broadcasters, and even now they are being permitted to operate at reduced facililties, tainting the roll out on the eve of the deadline. Many of these problems were a long time festering, but Chairman Martin should have refashioned the effort. He did not. As a result, the public benefits will be hobbled and delayed.

    In radio, the Commission adopted a digital standard that was proprietary to one Company, which will license it to everybody for a fee. It again placed “HD radio” in the hands of those least likely to develop it, the incumbent radio stations. HD radio appears to be going nowhere.

    There are other issues but let me toss one more on the scales. Chairman Martin famously keeps his own counsel and ignores, even disrespects the permanent staff. In fairness, Chairman Hundt, a solid Democrat, was not attentive to the staff either. But the Commission is rapidly losing an important cohort from retirement, and many others have left as morale has hit bottom and their expert opinions were of no interest to the bosses. This is a type of damage to government that is not easily reversed, and so Chairman Martin’s departure, when it happens, leaves an Agency, as a whole, sadly less able to grapple with the incredibly complicated range of issues in its charge. To me, his departure is welcome.

  • http://www.seopowerbook.com SEO

    I do hope Chairman Martin will take a progressive approach in running the FCC………..I agree with the writer in that freeing white space will open the communications spectrum.

  • Policy Geek

    Martin’s behavior appears to have been motivated by a desire to suck up to the telephone companies than by any pro-consumer leanings. By removing the spectrum from play and turning it into a “junk band” which will quickly become polluted beyond belief (because it penetrates walls), he prevents the cable companies from getting it and thus limits the telcos’ competition. And by hammering Comcast but not touching the telephone companies, he shows that his brand of “network neutrality” isn’t a bit neutral. In fact, his network neutrality order was full of blatant falsehoods. I’m sure that Mr. Lessig is enthused with Martin, because he loves the idea of Internet regulation. But Martin’s reign was bad for the country. He politicized the FCC, drove away their last few good technical people, and made some awful and very hard-to-undo decisions. He won’t be missed.