FCC chairman pushes reform agenda amid congressional inquiry

Last month, in a conference room atop the Federal Communications Commission building that has become a gathering spot for journalists, Chairman Kevin Martin made what appeared to be a routine announcement. The agency, he stated matter-of-factly, would soon issue press releases outlining the tentative agenda of each monthly meeting three weeks in advance.

The pronouncement may have sounded routine, but it wasn't. For decades, the agendas have been among the most closely guarded secrets at the commission, which regulates the trillion-dollar communications industry. The FCC formerly issued meeting advisories only seven days in advance, with regulatory items often mysteriously appearing or disappearing at the last moment. The agency still issues updated advisories a week in advance, with fewer surprises at the meetings.

The announcement, and the press conference itself, were the direct result of pressure on Martin from the House Energy and Commerce Committee, which is conducting a months-long review of the FCC and its regulatory practices. Four days later, on April 28, an internal Energy and Commerce staff memo tightened the squeeze when it recommended holding oversight hearings in June, asserting, "The FCC process appears broken and most of the blame appears to rest with Chairman Martin."

In an effort to tamp down such criticism, the chairman has instituted a series of unilateral moves designed to make the FCC more transparent. "I've tried to be responsive to individual concerns that people have raised about the public not being aware enough about some of the issues that were in front of us," Martin said in an interview with National Journal.

Reviews are mixed.

"The changes that have been made are small but important," said Andrew Schwartzman, president and CEO of the Media Access Project, a public-interest law firm that often battles the FCC. "They're more than window dressing, and I don't doubt the chairman's sincerity for a moment," he said. Nevertheless, he noted, they may not mollify congressional and industry critics.

"Martin's changes are having at least a marginally positive effect on how people perceive him," said an industry source, who added that the chairman's detractors are largely holding their fire until Congress completes its investigation. The source was one of several to request anonymity, citing the sensitivity of the investigation and trepidation about angering the powerful FCC chief. Others declined to be quoted even without attribution because of concern that their words might somehow be traced back to them.

Some FCC-watchers questioned the motivation behind the new policies, however, especially because the commission implemented them after the committee inquiry began. "It just feels very much like a process of calculated damage control," said one of these observers, adding, "He wants to have an answer to any charges leveled against him." Another source questioned the depth of the adjustments: "I think they've been primarily cosmetic in nature, and I think they've been more public relations than public interest."

Jonathan Adelstein, one of two Democrats on the five-member commission, delivered unusually candid remarks at a forum on Maryland's Eastern Shore last weekend, saying that the Federal Trade Commission is the model for how the FCC should be run. "They have a wonderful collegial atmosphere; they work together on things; they have an open, transparent process," he said. Noting that FCC regulators sometimes have to "beg and plead" to obtain data within the agency, he said, "There should be no fear about sharing information or having an open dialogue."

"The processes that the commission follows are exactly the same as when I actually worked in, physically in, the same office that Commissioner Adelstein is in now," Martin told NJ, referring to his days as an adviser to another regulator.

Critics offered a laundry list of additional steps the chairman could take to make the commission more transparent: requiring more-detailed disclosures of meetings involving FCC officials and outside parties; enforcing deadlines for merger reviews and responses to congressional inquiries; and allowing the public to comment on reports before they are final.

Martin's efforts dovetail with the timing of the investigation. In December, when the House Energy and Commerce panel initially signaled its intention to investigate, the FCC announced that it would begin posting a regularly updated list of pending regulatory matters on its Web site. The chairman insisted that the FCC began planning the move last fall in response to a Government Accountability Office report.

Beginning in January, when the committee formally instructed the agency that it was under review, Martin implemented another key change: He started holding regular press briefings in the conference room near his office. In the first four months of 2008, he held six briefings, more than he had conducted in an entire year. It was a big change for a chairman whose media handlers used to shoo reporters away.

In recent months, Martin has gone to some lengths to accommodate Rep. Edward Markey, D-Mass., head of the House Energy and Commerce Subcommittee on Telecommunications and the Internet, a move that appears to have softened criticism from one of the most influential power brokers on communications matters in Congress. It has also been a boon to Markey, who has seen the FCC act on some of his top priorities -- such as preserving the openness of the Internet -- that stand little chance of being addressed through legislation this year.

Schwartzman of the Media Access Project called the detente with Markey a testament to the political shrewdness of Martin, who is "frequently underestimated." Others downplayed the apparent alliance, noting that the chairman of the full committee, Rep. John Dingell, D-Mich., is spearheading the investigation along with Oversight and Investigations Subcommittee Chairman Bart Stupak, D-Mich.

"There is three years' worth of resentment built up among various people and organizations that is not easily dissipated by modest procedural changes," the industry source said.

Rule changes that Martin championed to permit increased consolidation of media properties sparked the Energy and Commerce investigation, as did his unsuccessful effort to have the FCC declare that cable operators had reached a threshold of market dominance that warranted renewed regulation. The investigation was also fueled by allegations that Martin regularly employs hardball negotiating tactics with his fellow commissioners to pursue his mostly deregulatory agenda.

Until recently, Martin conducted 11th-hour horse-trading on the eve of public meetings that led to delays of almost 12 hours. Some meetings scheduled for morning commenced at night, and reporters would hold betting pools on when each session would begin.

In the interview with NJ, the chairman put the onus on his colleagues, whom he accused of sometimes waiting until the last minute to weigh in. "The delay in the start of our meetings is actually not something that I'm in full control over," Martin said.

Although he is conducting more internal briefings to keep the offices of other commissioners apprised of his agenda, sources say that aides still grumble that he keeps colleagues in the dark on critical policy matters.

Martin's actions are part of a complicated minuet involving congressional members who are reviewing his actions and threatening legislation to overhaul the agency. The chairman walks a tightrope between undermining his assertions that the FCC does not require a major revamping and angering Congress if he doesn't foster more transparency.

The saber-rattling began in December when Sen. Jay Rockefeller, D-W.Va., urged colleagues on the Senate Commerce, Science, and Transportation Committee to make FCC overhaul legislation a priority this year. In January, a draft House Energy and Commerce agenda indicated interest in a counterpart bill. Nevertheless, observers consider prospects for legislation slim, given the short legislative calendar.

Reorganizing the FCC, meanwhile, is a complicated matter that would involve considerable lobbying and could take years. Without a comprehensive agreement from major players for a streamlined bill, "it would be irresistible for all sorts of special-interest things to be tagged on," Schwartzman said.

The last major restructuring occurred in 1983 during the Reagan administration, when legislation cut the number of commissioners from seven to five, the configuration in place today.

Although the House investigation looms as a constant threat to Martin, FCC-watchers wonder whether it will turn up dirt or is mostly a bluff designed to keep the FCC chief in check. With the inquiry set to end this summer, it could come too late to have much impact on Martin, who is likely to be replaced as chairman in a new administration.

Democratic presidential contenders Hillary Rodham Clinton and Barack Obama, who support an openly accessible Internet and increased access to broadband, would install a replacement from their party. Martin might not fare better under presumptive Republican nominee John McCain, who has a deep bench of telecom advisers from his years at the top of the Senate Commerce Committee.

Even if congressional oversight fizzles, Martin may have another motivation to loosen the reins: his legacy. The chairman may simply be reluctant to leave the FCC under a cloud of suspicion about his leadership style.