The Waiting Is The Hardest Part
Liz Sachs - Partner, Lucas Nace Gutierrez & Sachs and Regulatory Counsel, EWA
All new administrations take awhile to get started, but the FCC under no longer quite so new Chairman Martin seems to be going for the record. It has been almost a year since Kevin Martin took over the Chairman’s job. Since this was a promotion from his almost four-year stint as FCC Commissioner, there was an assumption that he would hit the ground running. There was no question about his intelligence, his dedication or his familiarity with the variety of telecommunications issues with which the FCC wrestles each day. He certainly was assumed to be familiar with existing FCC staff and, having been the odds-on favorite to succeed Chairman Powell for some time, was expected to have clear ideas about his agenda and what personnel he needed to implement it.
Well, Chairman Martin may have an agenda, perhaps even one relating to wireless services, but he certainly is playing it close to the vest. Not that quantity is indicative of quality, but open FCC Meetings have been limited to only a handful of items, and the number of documents coming out of the FCC each day has dwindled to a trickle. The word is that every item of any decisional significance, almost no matter the scope, requires signoff by the Chairman’s office before adoption. Matters that used to be handled within the operating bureaus such as WTB now must be vetted by the Chairman’s office before seeing the light of day. Absolutely routine licensing activities continue apace, indeed the WTB processing time is as low as anyone can remember, but anything even a bit out of the ordinary undergoes scrutiny at the highest level of the agency. No wonder the non-licensing items on the Commission’s Daily Digest have shrunk to a shadow of their former self.
So what are we waiting for from the “new” FCC? Well, a permanent Wireless Telecommunications Bureau Chief for one thing. The current WTB leadership is seasoned and highly competent but, for reasons only he knows, the Chairman has declined to give any of them – or a staffer from some other part of the Commission – the nod for the permanent job. That’s not entirely surprising. It has become the exception rather than the rule for incoming Chairmen to leave their predecessors’ Bureau Chiefs in place, or even to replace them with other seasoned Commission employees. The more typical approach is to bring people in from the outside, often persons with whom that Chairman has worked in the past or individuals promoted by key Congressional offices. But Chairman Martin hasn’t taken any of those approaches, but has simply left a senior WTB staffer in the position of “Acting” Bureau Chief with no replacement in sight.
Which takes us to question number two. The Chairman announced months ago that he intended to create a new Homeland Security/Public Safety Bureau with job responsibilities that may have caused some raised eyebrows around town because of their breadth and depth. But there has been dead silence, at least publicly, since the announcement was made. It seems likely that there is a connection between the hold on selecting a permanent WTB Chief and the presumption that the new Bureau will be formed in some reasonable time frame.
One of the first industry reactions to the proposed Bureau was a series of questions about the impact it would have on the rest of the current WTB responsibilities. For example, how would Public Safety be defined for this purpose? Would only the traditional PS services be included or would critical infrastructure industries be part of the mix? There was some scuttlebutt that CMRS regulation would be shifted to the Wireline Competition Bureau, since the regulatory agendas for wireline and wireless systems largely have converged in recent years. In light of all these open issues, it would not be surprising if no permanent WTB Chief job offer had been extended. How could someone make a reasoned decision about whether the position was of interest without knowing the scope of the responsibilities it involved? So what the heck is happening with – or perhaps has happened to – that Homeland Security/Public Safety Bureau initiative? Just one more unsolved mystery from today’s FCC.
It is anyone’s guess whether or not some of the more important outstanding issues in WTB would have been closer to resolution with a permanent Chief. For example, is any work being done on the open 900 MHz rule making proceeding? What is the status of the 6.25 kHz rebanding issue in the lower bands? Is anyone working on a response to the various pending issues relating to 800 MHz reconfiguration? Of course, Bureaus with permanent Chiefs do not appear to be faring significantly better in terms of items produced, so the delay is more likely the process than the personnel. We all are sitting in limbo unless and until the Chairman’s office decides what the marching orders should be.
Some would argue that the less the FCC does the better. They would say that, as with Congress, we are at the greatest risk when elected officials (or in this case Commission staff) are making decisions that will affect our lives. In fact, there periodically are efforts to declare victory and close the Commission down entirely. Reasonable people may disagree as to whether that would be a good or bad thing. But sound public policy demands that such decisions be made after public debate and based on the record. An undeclared work slowdown because the leash holding the Bureaus in check is too tight does not represent that kind of public, reasoned decision making.
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