Departing FCC chairman leaves behind mixed record

While departing Federal Communications Commission Chairman Julius Genachowski has talked a lot about pushing for high-speed broadband to more Americans and has championed the cause for getting more wireless spectrum on the market, critics say his record on these issues is spotty at best.

Genachowski today announced he would be stepping down from his post as FCC chairman. He has been chairman of the agency for four years. In a speech to colleagues announcing his resignation, he pointed out the FCC's many accomplishments including the drafting of the National Broadband Plan and its focus on promoting both traditional and wireless broadband.

But as he leaves office, critics, especially those in the public interest sector, are quick to point out that despite his rhetoric, the chairman's record on these issues has been mixed.

When he took office in 2009, these groups were optimistic that the former Internet entrepreneur would be a facilitator of change, ensuring an open Internet while also protecting competition both on the wireless side as well as the broadband side.

But in the end, Genachowski almost always looked for a middle ground that neither satisfied industry leaders nor public interest groups. And he often backed away from key battles that would have helped fulfill his stated agenda of getting more wireless capacity into the market or more broadband services to consumers.

"When Julius Genachowski took office, there were high hopes that he would use his powerful position to promote the public interest," Craig Aaron, CEO of public interest group Free Press, said in a statement. "But instead of acting as the people's champion, he's catered to corporate interests. He claimed to be a staunch defender of the open Internet, but his Net neutrality policies are full of loopholes and offer no guarantee that the FCC will be able to protect consumers from corporate abuse in the future."

While the FCC under Genachowski's leadership adopted Open Internet Access rules, the commission only applied the rules to landline broadband services and it excluded wireless broadband services. Consumer advocates said this made little sense given the increasing speeds of wireless broadband and its increasing penetration into the market. Meanwhile, the wireless industry has accused the agency of overstepping its authority.

Verizon Communications and MetroPCS are suing the agency. And a federal appeals court is expected to hear arguments on the case this summer. Consumer groups fear the FCC will lose the case, which they say will weaken the agency's ability to regulate issues surrounding Internet and broadband in the future. In effect, they fear the FCC will be stripped of its authority and the industry will develop without any government oversight to protect consumer interests.

Genachowski's record on mergers

But Net neutrality is only one issue where advocates say that Genachowski has cowed to industry interests. While the FCC rejected AT&T's massive $39 billion merger with T-Mobile, which would have reduced the number of national carriers from four to three, the agency under Genachowski approved two major deals that consumer advocates see as threatening competition in the broadband and media markets.

In 2011, the FCC approved the merger between Comcast and NBC Universal, which public interest groups railed against. And more recently the agency approved a deal in which cable operators sold 20MHz of wireless spectrum to Verizon. As part of the deal, Verizon and the cable companies also developed comarketing arrangements that many in the consumer advocacy world saw as a threat to competition. Public Knowledge said in a statement:

For those of us who represent the public, Chairman Genachowski's term can best be described as one of missed opportunities. He had the opportunity, but declined, to solidify the agency's authority and ability to protect consumers with regard to broadband -- the communications system of the present and future. As a result, there is a real danger that the FCC will become a powerless and irrelevant agency as the nation's communications networks change. The Chairman had the opportunity, but declined, to take several important steps that would have promoted more robust competition in the wireline and wireless broadband market. He punted on special access and permitted two major mergers, spelling the end of 'facilities-based' competition between the cable and telephone industries.

Wireless broadband

Another area where Genachowski's record is spotty is in freeing up wireless broadband. On the one hand, the chairman has brought awareness and a sense of urgency to the need for more wireless spectrum, which many in the wireless industry have applauded.

He also has overseen some policy changes that will free up additional spectrum in the future. For example, after years of testing, in 2010 the agency finally approved rules that would allow for the use of "white space" spectrum for unlicensed use.

Genachowski and the rest of the commission also voted to allow satellite provider Dish Network to use some of its wireless spectrum for terrestrial wireless services, a move that has helped free up additional spectrum. And the agency approved a compromise between satellite providers and AT&T so that it can use spectrum in the WCS band.

The agency is also now preparing for two significant wireless spectrum auctions. The H block spectrum in PCS band is expected to come to auction by the end of the year. And the agency is working on an incentive auction that will allow TV broadcasters to give up spectrum in exchange for taking some of the proceeds from the auction. The FCC has set a deadline of having the rules formalized by this summer with an auction expected next year. But people close to the situation say that even though the incentive auctions are a good idea, the process and the design of the auction are complicated. And it's very unlikely the agency will be able to hold the auction next year.

Backing down from big fights

But there also have been instances where the chairman's leadership in freeing up more wireless spectrum was sorely lacking. One example of this is the FCC's handling of Light Squared, the company that was planning to use satellite spectrum to build a nationwide terrestrial wireless broadband network to compete with major carriers like AT&T and Verizon Wireless.

The FCC had approved a waiver to Light Squared to allow the company to transmit signals using a terrestrial network, removing a requirement that it also use the spectrum for satellite. The company was set to start building its network. But its plans were derailed when the GPS industry complained of interference. Despite multiple attempts by Light Squared to rectify the interference issue with solutions, the FCC remained silent on the issue.

Instead of standing up to the GPS lobby and congressional leaders pushing the GPS agenda, Genachowski did not defend the FCC's original stance. And the agency suspended Light Squared's waiver. As a result, 40MHz of wireless spectrum that could have been used to provide wireless broadband services is now unusable.

Another fight that Genachowski backed away from was the battle over the D block of spectrum from the 700MHz spectrum auction. This sliver of spectrum went unsold in the auction because there were requirements put on the block to share it with public safety users. In the National Broadband Plan, which was drafted by Genachowski's FCC, the agency recommended trying to auction off that spectrum again and finding a way for public safety users to share it with the wireless industry.

But once again, Genachowski backed down from the fight when public safety officials insisted on having the 10MHz of wireless spectrum from the 700MHz D block to themselves. Sen. John D. Rockefeller (D-W.Va.) pushed for the D block to be given to public safety. And as part of the Middle Class Tax Relief and Job Creation Act of 2011, which also authorized the incentive spectrum auctions, Congress not only gave public safety the 10MHz of D block spectrum, but it also mandated that $7 billion raised from the future incentive auction would be used to pay for deployment and upkeep of the network.

Once again, spectrum the FCC had earmarked for use by the public was taken off the table.

What's next?

President Barack Obama has not yet said who he will nominate next for the role of chairman of the FCC. But many people in Washington, D.C., say that Tom Wheeler, a veteran telecom policy expert and former lobbyist, is a front-runner for the job. Other top candidates who have been mentioned include Karen Kornbluh, a former FCC official who is currently President Obama's ambassador to the Organization for Economic Co-operation and Development.

Larry Strickling, the current administrator of the National Telecommunications and Information Administration (NTIA), is another name that has been discussed as a possibility. NTIA is an agency that advises the president on telecom policy.

Cathy Sandoval, a law professor at Santa Clara University School of Law, also has been named as a potential candidate. Susan Crawford, a law professor at Cardozo School of Law, has been mentioned as well. Some women's groups have called on the president to nominate a woman for the position.