POWELL-MARTIN DIFFERENCES SAID TO CAUSE ‘TENSION’ AT FCC

Big question is how that reported dynamic will be affected by possible arrival soon of FCC’s 5th commissioner and 2nd Democrat, expected to be Jonathan Adelstein, aide to Senate Majority Leader Daschle (D-S.D.). Martin’s independent views could turn him into all-important swing vote, possibly pitting him with 2 Democrats against Powell and his ally Comr. Abernathy. Martin already has sided with agency’s sole Democrat, Comr. Copps, on many occasions. Some say Powell would have more difficulty pushing his positions were he pitted not only against 2 Democrats but without certainty of support from 3rd Republican.

Numerous industry sources pointed in particular to strong interest that Copps and Martin have taken on several rural issues and extent to which Adelstein is expected to either match -- or in some cases exceed -- that interest. Industry sources generally stressed that Martin and Copps didn’t share same ideology but did share tendency to stick with ideology once they developed it. They said Powell and Abernathy were more pragmatically minded when it came to policy decisions. Others said Adelstein’s arrival, in combination with Martin’s independence, could force more compromises, possibly resulting in better decisions. “Maybe the arrival of another commissioner will help,” industry executive said. “Maybe it will make Powell try harder” to compromise. Several sources agreed, predicting more in way of compromises by both Powell and Martin camps rather than scenario with Martin threatening to disrupt votes by dissenting with Democrats.

Powell and his chief of staff Marsha MacBride declined to comment and Martin denied problems with Powell. Martin told us he had voted with Powell on 95% of decisions. “There are always times when differences of opinion occur on policy issue,” he said: “The chairman and I get along well.” Asked if he were involved in power struggle as a few had speculated, Martin laughed and said no.

Fact that Martin has voted with some frequency apart from Abernathy and Powell is “definitely important for anyone who watches the Commission,” industry source said. “It’s clear he’s not a lockstep Republican. The fact that he has dissented speaks very highly of him. The easy way to go would be to vote with the other 2 Republicans. I wouldn’t cast him in an anti-Republican light but in the light of a person who has his own views.” That source said Martin appeared to “carry more weight than your average co-voting commissioner.” Martin, former legal adviser to then FCC Comr. Harold Furchtgott-Roth, had been special assistant to President Bush on economic policy with focus on telecom issues and was deputy gen. counsel to Bush campaign and Bush- Cheney transition team. “When Adelstein does finally get there, he [Martin] will probably be the swing vote,” source said: “The difference between him and the guy he used to work for [Furchtgott-Roth] is that he will compromise. He [Harold] was always the outsider in that you only had 2 Republicans and 3 Democrats. There was not a clear swing vote on the Kennard commission.”

“He has a lot of influence,” that source said. “It’s a combination of things. Part of it is that the chairman, who is very political, also is aware that [Martin was] the deputy counsel to the Bush campaign. He has the bona fides from the Administration and Powell is certainly interested.” But Martin is unlikely to provide swing vote to derail particularly critical issues, such as broadband NPRM that is teed up at Commission, source said.

Another industry source joked that Copps and Martin had struck “unholy alliance,” but stressed that they hadn’t found themselves on same side of some similar issues because they shared same views in many cases. “Each always seems to have something similar to say but for different reasons,” source said, likening situation to that of feminists and Moral Majority coming together to rail against pornography. “I see sometimes Martin and Copps issuing separate statements and dissents but they're not really tied to each other,” source said. “It seems to me that sometimes Powell and Abernathy have the most common sense, which isn’t to say the other 2 don’t. The other 2 are more idealistic and to their credit aren’t afraid to step out and say what they think.”

“Kevin [Martin] has an independent voice” that probably frustrates Powell, said former FCC staffer, who subscribed to theory that differences in philosophy and style caused Martin and Powell to disagree on issues. “Kevin’s not a lock,” former aide said. “I don’t think Kevin has future designs, but he is someone with his own views.” Martin, like his former boss Furchtgott-Roth, sometimes departs from rest of Commission because of his strong concern about “following the letter of the law,” be it Telecom Act or other legislation, telecom lobbyist said.

“Martin appears to be behaving like a shadow chairman,” source said: “There can only be one chairman.” He dismissed importance of Martin’s White House ties, saying it was “totally wrong” that Martin had as strong a power base as Powell. “Powell has clout with the principals that matter” at White House and Martin’s connections are “at the staff level,” he said. Others also dismissed idea that Martin’s White House connections would somehow influence his behavior. “I don’t much accept it,” another industry source said. “He has a set of policy perceptions similar but not identical to the chairman. I think he [Martin] would act according to his own policy views, without regard to particular political connections.”

That source noted that former FCC Comr. Gloria Tristani didn’t always vote in step with then-Chmn. William Kennard and former Comr. Susan Ness didn’t always follow suit with former Chmn. Reed Hundt, even though all were Democrats. “There is a long history of commissioners -- even of the same political party -- not following the chairman in lockstep. It has very little to do with perceived political connections elsewhere.” Instead, Powell faces similar dilemma as have past chairman, source said, of “how to make fellow commissioners feel they are inside the tent rather than outside the tent.” With addition of 5th commissioner, that problem may be ironed out as it becomes more important to work out issues such as some on 8th floor feeling excluded from decision-making process in which chairman’s office sometimes is seen as controlling flow of information, source said. “All chairmen confront a similar issue of how to work with commissioners who have their own views and to bring them along to forge a common policy. Chairman Powell has not come up with a good solution yet.”

Differences Seen in Policy Areas

Differences have emerged in numerous policy areas, ranging from public safety wireless concerns to Bell company provision of Internet access. One ISP lobbyist said she had seen lot of dissidence on line-sharing issue while others pointed to broadband policies as area of disagreement. Martin’s frequent separate statements often signal strong debate that preceded vote, sources said. For example, Martin recently joined Powell in voting to apply unused e-rate funds to lower carrier contribution levels, but said in statement that he would have done it differently.

Among policy areas where differences between offices recently have bubbled over in public is in notice released earlier this month on Spectrum Policy Task Force formed by Powell. Public notice, which raised far-reaching questions for comment, provoked concerns by Copps and Martin that group had drafted public notice “without Commission guidance.” Detailed notice posed spectrum policy questions ranging from Part 15 overcrowding to whether rural spectrum should fall under different policy rubric than urban areas. But Copps and Martin said in statement that those “critically important issues” would have been better addressed in Notice of Inquiry approved by full Commission. “We also fear that without Commission input critical issues may be left out of consideration,” they said, saying rural spectrum issues were given relatively short shrift.

In unusual step in April, Copps and Martin reacted to bureau decision by issuing separate statement questioning rejection by FCC Media Bureau of EchoStar’s 2-dish plan for meeting local-into-local broadcast carriage requirements. Joint statement said plans that Bureau approved didn’t adequately protect consumers from discriminatory conduct by company. They questioned whether bureau had authority to make such decision. “We believe that the Bureau -- on its own -- cannot propose an escape hatch that would essentially permit conduct that violates our congressional directive, violates FCC rules and is inconsistent with the language adopted in a Commission decision.”

Powell and Martin also offered vastly different opinions on Northpoint decision. In joint statement with Comr. Abernathy, Powell praised Commission for regulatory restraint in allowing multichannel video distribution and data service (MVDDS) to share spectrum with satellite operators. Martin offered separate statement outlining concerns about interference to satellite operators and calling adopted technical parameters “arbitrary and capricious.” Staffer called us later to make sure we understood Martin was opposed to technical parameters.

Elsewhere at Commission, staff have been examining possibility of wireless merger guidelines when spectrum cap sunsets Jan. 1. Agency voted last fall to phase out spectrum cap, which had been 45 MHz except in rural areas where it was 55 MHz, by Jan. 1, 2003. Several sources indicated Martin and Copps were concerned that guidelines would be issued by staff rather than full Commission, although those concerns weren’t seen as affecting timing of when or if guidelines would be issued. In other cases, Martin simply has voted alone. In recent Commission decision to hold lower 700 MHz auction on June 19 and delay upper band bidding until Jan. -- move that since has been superseded by congressional action - - Martin dissented in part, saying both auctions should be delayed immediately.