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Can Howard Stern now relax?

It all depends on who President Bush appoints to succeed Michael Powell at the FCC, says CNET News.com's Declan McCullagh.

You can't blame Howard Stern, Janet Jackson and other targets of official bluenosedom for toasting the departure of Michael Powell, the Federal Communications Commission chair who led a crusade against raunch and ribaldry on the air.

They may be right. For all Powell's talk about limited government, the 41-year-old Republican arguably resuscitated a vague "indecency" standard for the sake of political expediency. Other critics point to the "broadcast flag" ruling, which bans the sale of certain computer hardware starting in mid-2005, as another shameful chapter in the history of the FCC.

But Powell's legacy is more complicated than either copyright or censorship. In particular, he deserves credit for erecting a historic set of protections for network providers and voice over Internet Protocol companies. These protections have immunized those companies from the more rapacious demands of state regulators and the two Democratic FCC commissioners.

Powell presided over the FCC during the turbulence of the telecommunications crash and the sudden rise of VoIP and Wi-Fi.

Powell's legacy is more complicated than either copyright or censorship.
Powell's quasi-libertarian instincts--and his serious appreciation of technology--prevailed, and he chose not to embrace aggressive regulation or taxation. ("Technology is the most fascinating thing going on in the world," he told me in 2003. "I have a front-row seat at the revolution.")

Time after time, Powell rallied his two Republican allies in opposition to the pair of more regulatory Democrats. In November, for instance, the Republicans voted to free VoIP from the grasp of busybody state utility commissioners--a prospect that concerned Vonage, along with Internet companies worried about states regulating prices and levying onerous taxes.

The Democrats grudgingly went along with the vote, but complained bitterly about it. FCC Commissioner Jonathan Adelstein said he could not "fully endorse an approach that leaves unanswered so many important questions." Commissioner Michael Copps said he would "withhold" his approval because the decision could "erode our partnership with the states."

Another crucial VoIP decision was handed down in February. The FCC Republicans granted a request from VoIP provider Pulver.com to be immune from the ponderous stack of government rules, taxes and requirements that apply to 20th-century telephone networks. Copps opposed the decision, and Adelstein said he partially dissented.

A third telling example came a year earlier, when the FCC voted to let former Bell companies run fiber to American homes without being required to make the links available to competitors. Otherwise, the Republicans reasoned, telephone companies would have scant incentive to spend billions of dollars to rip up streets and run the conduits. Once again, the Democrats objected--even though that decision paved the way for Verizon to roll out its "Fios" fiber service last year.

To be sure, some of those votes may have been decided the same way no matter which Republican had won the top FCC job in President Bush's first term. But without a chair as unapologetic about deregulation as Powell and as willing to defend it, it's not clear that the Republicans would have maintained their slender majority. Even under Powell, Commissioner Kevin Martin, a Republican, defected and joined the Democrats on some votes.

The question now, of course, is who the president will nominate to succeed Powell. One obvious choice is Martin, who's eager for the job.

But that risks tarnishing Powell's broadband and VoIP legacy by replacing a proponent of the free market with someone with a much weaker appreciation of it.

Let's hope that Bush is up to the task. If we're lucky, Powell's successor may even appreciate the First Amendment as well.