Powell calls for legislative rethink

Powell, making an appearance at the Innovation Summit, produced by media company AlwaysOn Network and conducted at Stanford, smartly backhanded with a nonanswer about whether the Federal Communications Commission would do anything about naughty bits uttered by Oprah Winfrey. But he kept the ball in the air on a rhetorical streak that eventually turned back to one of his favorite topics: the impossibility of enforcing ancient media rules in a drastically changed communications environment.

In this particular case, it's the enforcement of decency rules handed down in 1962, when television signals were a scarce commodity that needed to be protected for the public good. Those rules still apply to broadcast channels today, even though 80 percent of U.S. homes get their TV from cable or satellite systems that also offer hundred of channels that are relatively uncensored.

"I think this country has a bigger question it doesn't want to deal with," Powell said. "The notion that the First Amendment changes when you change channels is odd. It's more than odd--it's dangerous."

A leveling of the treatment broadcast and cable channels receive would require significant changes in the law, however, and that's unlikely to happen anytime soon, Powell said. "There really has been a dramatic rise in the American public complaining about" indecency, he said. "If Congress is sensitive to anything, it's to that kind...of heightened concern."

Taking an even broader view, Powell said whole classes of federal communications policies need to be rethought. Existing laws are largely meant to regulate single-purpose networks, such as phone lines and broadcast. With voice, video and other traffic merging on broadband, cable and other networks, that perspective doesn't work anymore, Powell said.

"Right now, we're in a terrible position where a company's regulatory treatment is more a matter of from whence they came rather than what they're really doing now," he said.

New policies will have to look more at underlying technology than applications, Powell said, because applications will continue to evolve and multiply.

Still, rushing into wholesale rewriting of communications policy could be even worse than the status quo, Powell warned. "It's a brave new world, and it's important for us to get it right," he said. "I'm extremely passionate in my belief that getting this right under-girds whether the United States is as great a country in the 21st century as it was in the 20th."

On brighter notes, Powell hailed the Wi-Fi boom as an entirely unplanned offshoot of federal decisions not to bother with certain chunks of the public airwaves, in this case the 800 band.

"The government threw out that unlicensed bandwidth because they thought it was garbage; they though it was the domain of baby monitors, microwave ovens and little remote-control cars," he said. The Wi-Fi boom "is teaching the government a lot about what you can do with a chunk of spectrum where we aren't the arbiter of what can be done."

Don't expect such an unfettered environment for the nascent Internet phone industry, however. An array of forces are likely to push various levels of regulation on voice over Internet Protocol (VoIP) traffic, Powell warned, particularly state governments worried about losing taxes from traditional phone traffic. "It's the Internet sales tax debate times a thousand," Powell warned.