The Youngest Of The Five Commissioners-As The Voice Of Reason

Commissioned Officer

Military Man Michael Powell, who could be the next FCC chairman, has emerged as the agency’s voice of reason

You can learn a lot about people by watching how they pick their fights.

At the hearing on the Time Warner America Online mer-ger in late July, commissioner Harold Furchtgott-Roth, the permanently dissenting member of the Federal Commu-nications Commission, is making his usual opening statement, consisting largely of, “Why are we here? Why is the FCC here at all?” Interestingly, the normally complacent chairman, Bill Kennard, chooses this day to turn tough on Furchtgott-Roth’s petulance.

Commissioner Michael Powell, sitting quietly two seats away, looks up from his notes, fascinated that Kennard would attempt to convince Harold the Unconvinceable of anything.

Time Warner’s Gerald Levin and AOL’s Steve Case explain why they think the FCC should approve their $183 billion merger. Case nakedly dangles an emotional bribe before Kennard-a promise of classroom Internet connections. As he shifts noisily in his chair, Powell’s body language practically shouts at Case. Powell is opposed to-no, make that hates-trading unrelated concessions for votes.

Up to this moment, Powell hasn’t indicated his views on the merger. Among lobbyists and GOP politicians, it’s assumed that Powell, a Republican appointee who supports the free market, will tread lightly.

But today, this is the battle he will join. When his question period arrives, Powell lowers the boom. Leaning sideways on his right hand in a dismissive, casual gesture, he rips into the companies. Whenever you’re asked to guarantee that you won’t stick it to the public or the competition on issues such as multiple platforms, open access and their content-distribution system, he says to Case and Levin, “You conclude with ‘Trust me, we won’t.'”

Opponents ask, “Why should we?” he adds, and then he explains why he too is skeptical. He trots out a litany of previous acts by both companies that he says have undermined their credibility. “The high-profile case in which Time Warner was stripping the vertical blanking interval for an Electronic Programming Guide,” he says. “Heavy-handed tactics by local franchising authorities at Time Warner in SBC’s region on DSL…” And AOL’s still-unfulfilled promises about instant messaging.

So much for their “historical background of credibility on the trust point,” he says archly.

Then he tells the companies what he wants. “It’s very, very important” that they show some “powerful economic reasons” why the merged company wouldn’t behave like a monopoly: “Tell us why as a business matter…not as a matter of trust.”

Levin begins with a vague statement about consumer choice, promptly demonstrating to Powell either that Levin has not understood the seriousness of Powell’s question-or that he can’t answer it. Powell is unimpressed.

As the sessions crawl on, Powell gets another chance to spring into action-but he demurs. The chairman of the Hispanic Coalition for Corporate Responsibi-lity tells the commissioner he’s concerned about the merger due to Time Warner’s alleged insensitivity toward Hispanics. He notes as an example that the company’s entertainment channels keep rerunning Ted Turner’s favorite Westerns, including Fort Apache. Powell, staring coldly, seems almost offended. He dislikes special-interest groups inserting narrow appeals to minority issues into straightforward business equations. The Time Warner AOL deal has enough complications already, without tethering it to an old John Wayne film.

But Powell can only lose here. Like his father, Gen. Colin Powell, he’s an adherent of The Powell Doctrine, which preaches the avoidance of unnecessary battles. So Powell stays silent as the minority advocate rails about insensitive Seinfeld episodes. It falls to Kennard-who, like Powell is African American, but is a Democratic appointee-to put the Hispanic Coalition leader in his place and to remind everyone what the hearing is about.

When the seven-hour session ends, Powell has shown his mettle, without showing which side he will take in the war. It’s not time to take a stand yet. He has learned that not only from his father but from the book that in many ways defines him. A combination of George Washington’s guide to civility and Chairman Mao’s Little Red Book, The Armed Forces Officer was compiled under Gen. George Marshall in 1950 as a manual for military leaders, but Powell sees it as a road map to a righteous and productive life. Copies of it pop up on the desks of his staffers, and aphorisms about “the love of work” find their way into Palm Pilots, position papers and press releases. It contains another important piece of advice: You have a better chance of winning if you can decide the rules of engagement.

“There is no surer portal to inner peace than the knowledge that one is participating fully in moving forward the great undertakings of the day.” -The Armed Forces Officer

There are some things you should know about Michael Powell, and some reasons why you should know them. He could become the next chairman of the FCC if George W. Bush wins the presidency. If Gore wins, and Kennard decides he’s too tired to stay, Powell’s influence will expand, despite his Republican ties. He has built up a cadre of loyal supporters among warring factions-and one of his biggest fans is Bill Kennard himself.

“He’s a star,” says Kennard. “He has brains, charisma and judgment. He’s the Tiger Woods of telecom policy.”

Michael Powell is also a political animal. But he chafes at any suggestion that he plays politics. There’s a big difference, he notes, between being political and choosing one’s battles. The former means avoiding the hard decisions. The latter means waiting for the right time to attack.

That’s one major area in which he differs from his chairman, whom he calls a man of principle. Kennard wears his heart on his sleeve, whereas Powell uses his sleeve to hide his cards. Kennard will fall on his sword for issues with “loser” stamped all over them. Powell prefers to save self-immolation for special occasions. And unlike Kennard, he won’t join the panel in postponing decisions “for further study.” When it’s time to vote, the studying is over.

“The extraordinary man is eight men in one.” -The Armed Forces Officer

These are dangerous days at the FCC. Internal factionalism, personal agendas and pressure from Congress and the White House in this election year have made working conditions somewhat unpleasant.

Kennard strives to keep a lid on the bubbling cauldron, but he spends much of his time taking hits from Republicans and Democrats alike in Congress. Furchtgott-Roth has become the Marginal Man. Because he dissents on almost every important issue, he has marginalized himself and his conservative economic philosophy. Furchtgott-Roth and Powell, both Republican appointees, often vote the same way, but the similarity ends there. You won’t see Powell starting each FCC meeting by questioning the very purpose of the agency. Instead, Powell simply says, “The FCC’s not evil. But I wouldn’t shed a tear if it left.”

Susan Ness used to be the centrist who formed coalitions. But she got on the wrong side of John McCain, chairman of the Senate Commerce Committee. Now her term has run out and she’s in limbo. While waiting for reappointment, she has tried to straddle the gap between Democrats and Republicans, an unladylike position for the prim Ness.

In recent months, she and Democrat Gloria Tristani have been taking swipes at each other. The three male commissioners sometimes find themselves caught in the crossfire of dueling divas.

That leaves Powell-at 37, the youngest of the five commissioners-as the voice of reason. Or, at least, of sanity.

“Mansions are not raised by people besieged by doubt or soured by cynicism.”-The Armed Forces Officer

When Michael Powell’s name surfaced as an FCC nominee in 1997, the buzz at the agency and on Capitol Hill was that it was a favor being done by John McCain for his good friend Colin Powell. Aware of the whispers, Michael Powell took a swing at the conventional wisdom in his statement at the confirmation hearing. “Some have suggested I got this nomination because of my famous father…I also got it because of my mother, Alma Powell,” he said, pointing to her in the audience.

Everyone laughed, including McCain. Having scored a TKO with humor and candor, Mike Powell won a real knockout with his responses to questions about the future of the telecom world. He’d spent the previous two years working for Joel Klein, the assistant attorney general in charge of the antitrust division. A techno-geek and telecom aficionado, Powell knew what the law of the land said about a very tough issue facing the FCC: mergers. He spoke eloquently about the “public interest” and apocryphally about the shadowy future of “spectrum management.”

After the hearing, the buzz was that Powell was McCain’s secret weapon- “brilliant,” “incredibly profound,” “big-picture thinker,” “completely grasps the details.”

But a few Republicans and industry lobbyists weren’t totally enthusiastic. Listening to Powell’s answers, they realized that any man who spoke in Big Picture terms actually believed in market forces and was so independent he might not go with the flow on some pro-business policies. He might want to let the market sort things out or, God forbid, encourage competition-what telecom moguls fear most. Perhaps Powell had a little too much McCain in him.

“It is fatal to enter a war without the will to win it.”-Gen. MacArthur, quoted in The Armed Forces Officer

Powell pauses on his way to a meeting, grinning at a staffer. “Keep your backs to the wall and your guns ready,” he says, sounding like John Wayne in The Alamo. It’s one way to face the fire.

Powell came to the FCC by a circuitous route. He started out in his father’s footsteps, as a military man. He loved the Army, loved the whole culture, the discipline and especially the sense of purpose, the mission. Then, in 1987, he had one of those life-changing experiences, landing under an Army jeep on the German autobahn. His spine fractured and pelvis crushed, Powell, a 24-year-old captain, spent months in painful rehab, planning what he would now do with the rest of his life.

Meantime, trapped in bed, he watched television and lots of movies. That’s how so many TV and film lines have come to punctuate his papers and speeches. He makes hilarious and endless references to Top Gun, such as “Always protect your wing man,” which he spouts cryptically at odd moments. Don’t get him started on the analogies between The Wizard of Oz and the land beyond Kansas known as the FCC.

One day, Monty Python popped up in a formal FCC statement. A frustrated Powell was objecting to low-power FM radio. Referring to the economic consequences for other small commercial FM stations, he wrote that the influx of LPFM could be their “wafer-thin mint.” In a footnote, he described the classic sketch in which a waiter offers an over-stuffed diner one “wafer-thin mint,” which causes the diner to explode.

He weaves these off-the-wall analogies into golden cloth. Talking about telecom mergers, he once delivered a parable called “Letting Go of the Bike,” in which Mr. and Mrs. Regulator learn to let their precious child, Public Good, ride on Free Market Hill all by himself. It wasn’t Rousseau, but it rocked.

“The country demands bold, persistent experimentation. Above all, try something.” Theodore Roosevelt quoted in The Armed Forces Officer

Sitting in his office a week after the Time Warner AOL hearing, Powell talks about the underlying public-interest issue. The FCC has always had a public-interest standard, he explains, “but it’s cheeky [for some commissioners] to say, ‘We’re just doing what we were doing for years.'” This merger is completely different, he says. “We’re learning on the fly.”

As always, he is nattily attired: a trendy black-and-white checked tie struts its stuff against a striped shirt. An insignia ring the size of a cocktail coaster hugs his hand. With his round face, it’s understandable that some FCC staff call him cuddly.

As a former antitrust lawyer, Powell would feel more comfortable if the FCC’s role here were more strictly defined. Anti-trust rules, he says, “are the last vestige of real common law in America.” But it’s hard to apply them when there are no economic models that a merged AOL Time Warner entity could be compared to.

That’s what he was trying to pull out of Case and Levin-hard business reasons that would prevent them from turning the company into a monopoly. Those were the kinds of factors he used to weigh when he was at DOJ, but the situation is more nebulous at the FCC under its gray guidelines.

The background noise of the AOL Time Warner merger is public interest and broadcasters. America has had the notion that the broadcasting business is “somehow different from cheese and automobiles,” Powell says, though that’s “more aspirational than demonstrated.” But that’s why the “diversity” issue is fighting for inclusion in the AOL Time Warner debate and elsewhere.

“Diversity is an overburdened word,” he says. There are three versions of it in play at the FCC: diversity of source, of voice and of programming. “And whatever it is, it’s not part of the antitrust” issue, he says.

At the FCC, diversity is a “policy, a purpose,” Powell explains. “Its proponents have tried to put it into antitrust clothing.”

This leads to his biggest complaint about the FCC: People won’t explain why certain rules should be on the books; they hide behind the stasis that the FCC ambit allows. “We owe it to ourselves to prove why diversity is so important,” he says, “or stop acting like it’s so important.”

That philosophy provoked a lengthy dissent to the FCC’s final half-hearted report in its biennial review of all broadcast-ownership rules. Unlike some commissioners, Powell doesn’t litter the place with official statements. But after thinking it over for two weeks, Powell excoriated his colleagues in a statement for refusing to make the hard decisions about several of the rules, for not going far enough in getting rid of some and then for not having the courage to defend the ones they were keeping. He stopped short of calling them gutless wonders.

Powell also has a few opinions about the proferring of feel-good concessions in return for votes at the FCC. “Broadcasters put on their ‘$8 billion to the community’ buttons when they want something,” Powell notes, as when they promise to air children’s educational TV in return for relaxing ownership limits. “It’s this whole passion-play thing,” he sighs. “They say, ‘Vote for me because I’m the good guy.’

“It’s goofy. I want to vote for something because by law and policy it’s the right thing to do.”

Kids are the poster children for America’s ills, Powell says. Broadcasters make their concessions, “then they go up to the Hill for a reception to celebrate it all, and then they go out and eat a huge steak and laugh. They got free spectrum and a separate 6 megahertz channel-for a couple hours of children’s TV. Not a bad day’s work.”

Powell’s immunity to special interests was one reason why McCain nominated him, says Big John. “He makes intellectual arguments. They reflect clarity and vision. He’s not an ideologue,” concludes McCain. “He’s a thinker.”

Carol Melton, Washington lobbyist for Viacom, says, “In an age of cynicism about public service, Michael Powell is the real thing.”

Last December, Powell took on his Democratic colleagues at the FCC, and though he was in the minority, he eventually won. On a 3-2 vote, Kennard pushed through a set of new rules for religious broadcasters that would distinguish between religious and educational content. Republicans in Congress went bananas, Democrats tried to hide, and in the end, Kennard withdrew the new guidelines. But Kennard says that Powell’s formidable arguments helped make the case for changing his mind.

“Michael was right,” Kennard says. “He said, ‘I think you’re drawing a line in an area of content.'” Powell warned Kennard that he should explain what he was doing and why, or he’d be clobbered, Kennard recalls. Powell has changed Kennard’s mind on other matters, the chairman says. “He doesn’t reach for emotional arguments or hollow rhetoric.”

“I know the withering effect of limited commitment.”

-The Armed Forces Officer Powell has been wrestling with the angel of diveristy since he was little. In the 1960s, his mother’s parents founded a Girl Scouts troop for blacks in Selma, Ala. “You don’t get closer to hell than that,” he says.

Noting that his wife is white, he says, “Until 1972, my marriage would have been illegal” in Virginia, where they live with their two young sons. “I wouldn’t have been at Georgetown Law School. My father could not do what he did.”

“I watch women cross the street when they see a black man coming,” he says. The system has problems, but it’s a “wonderful system. You change it by your example, by your strength…I try harder.”

There are standards for arguing an issue at the FCC, he believes, and everyone has to make their case or else. “If a minority group came to me and said ‘C’mon, do this for us,'” I’d hit the ceiling. I find it insulting.”

He admires Kennard for challenging the Hispanic leader during the TW-AOL hearing. “Just because we’re in power and we’re minorities doesn’t mean we can let that slide,” he says. “It damages our credibility.”

Still, last year, Powell spent political capital pushing hard, along with McCain, for a bill for tax credits for minority broadcasters. And in early August, he worked for hours with his father on the speech to be delivered to the GOP convention in Philadelphia. Gen. Powell’s draft troubled some of George W. Bush’s aides because of its support for affirmative action and a swipe at preferences for special interests and big business. Bush himself finally approved the speech. Unfortunately, it aired late, and GOP pols, while rhapsodizing about Gen. Powell, distanced themselves from his attack on double standards. Powell, pere et fils, had made what seemed a futile gesture. But as The Armed Forces Officer says, “It is not the critic who counts-but those who if they fail, fail while daring greatly.”

“In any moment of decision…the worst thing you can do is nothing.” Theodore Roosevelt as quoted in The Armed Forces Officer.

“Certainty has a higher value than the right answer,” Powell says. “In the Army you’re taught, right or wrong, do something.”

It’s late September, and Powell’s waiting for his colleagues to make up their minds about the attack ads and editorial response sections of the Fairness Doctrine. A Federal Judge has given them until Sept. 29 for a decision.

On some things, he says, this FCC is paralysed “like a deer in the headlight.” Some of his colleagues believe in the attack ad rules deeply, he explains. In that case, he wishes they’d come forward and defend them rigorously, instead of just leaving them on the books.

A week later, the FCC votes 3-2 to suspend the rules for 60 days, and Powell unloads in his dissent. “A day late and a dollar short,” he calls their decision. Broadcasters, he says, will feel they’ve been “prodded by a hot iron.” The rules, he writes, eschewing, as he puts it, “weasel words,” should be killed once and for all.

The D.C. court of appeals does just that within days, citing Powell’s weasel-free language. As The Armed Forces Officer might advise, “The extraordinary man does not gloat in public.”

Posted by on October 21, 2000