What will a Barack Obama Federal Communications Commission look like? Veteran telecom attorney Andrew Lipman's first advice: don't blink or sneeze while following the Obama transition at the FCC. "This is the fastest I've seen it," Lipman told investors at a briefing on Friday held by Barclays Capital and Bingham McCutcheon.
Lipman has seen a lot of presidential transitions. He has been practicing Telecom, Media, and Technology law for Bingham for 25 years, advocating before the FCC, state regulatory bodies, Congress, and the courts. Lipman's bottom line: With FCC Chair Kevin Martin moving on and his fellow Republican Deborah Taylor Tate termed out when Congress expires, Obama will appoint two, and maybe even three Commissioners relatively soon (Lipman didn't say who the third ship jumper might be).
"We think it's highly likely that Martin will step down if not immediately, then probably in February at the latest after the DTV transition," Lipman predicted—in other words, after the February 17 analog-to-digital switch-off for full power TV stations.
Dark horses
What will happen then? Obama might make Democrat Michael Copps interim chair, until somebody gets FBI cleared and senatorially approved around the second quarter of 2009. Would he give Copps or fellow Democrat Jonathan Adelstein the permanent top job? "I would say 'probably not'," Lipman suggested, then threw out a bunch of possible "dark horse" candidates for the main position, most "one degree away from Reed Hundt"—Clinton's FCC Chief in the mid-1990s, now on Obama's transition team.
These include co-transition team member and Obama Harvard Law Review buddy Julius Genachowski, FCC veteran and former Al Gore adviser Don Gips, former Common Carrier Bureau chief Larry Strickling, former Florida PUC Commissioner Julia Johnson, or broadcast media owner Richard Reingold.
Whoever gets the job will be working with Obama administration's new cabinet-level position: Chief Technology Officer. Lipman predicts that the duo won't "dial back" because of the recession, because Obama sees high speed Internet as a crucial means to get the country back on its economic feet.
Obama "looks at technology as holistic and as a catalyst for job creation, economic development, closing economic divides, clearly a multiplier impact on the economy," he says. "Especially with broadband. And everybody knows he's an enthusiast for the Internet. Why not with 370,000 Internet contributions?"
So the transition may slow down a few dockets, not surprisingly the intractable problem of Universal Service Fund/Intercarrier Compensation reform. But "expect the vast majority of other issues to keep moving," the attorney assured his audience.
Hot items to watch include stories we faithfully follow here at Ars: the implementation of the FCC's Order giving the go-ahead to unlicensed white space devices; the AWS-3 band, which Martin presently wants contoured for a national free and smut-free broadband service; and how to finally auction off the 700MHz public safety D Block.
But the front stage lights will shine fullest on the DTV transition. "This is an issue that is inevitably going to cause hiccups," Lipman warns. "The Hill is going to get involved."
Everyone's a winner?
Which portions of the media/telecom industry will do well during the Obama/Biden years? A big part of Lipman's talk focused on potential winners and losers in the saga. But, in fact, the telecom lawyer didn't mention a lot of losers. Those he did he called "slight losers," among them the big telcos.
The favored will include Internet portals and application providers ("Google, Yahoo! etc—big winners," Lipman declared). The reason is pretty obvious. Obama is a net neutrality supporter, and observers should expect plenty of proactivity in this area from Obama and Congress, including policies "prohibiting discrimination, prohibiting rationing of capacity," and "prohibiting prioritization of traffic charges." Plus Obama "probably would be skeptical of even bandwidth caps," Lipman speculated.
But the net neutrality fight is "toning down" somewhat, he notes—in part thanks to industry efforts to find private sector fixes for P2P network management hurdles. The war might tone back up, though, if Comcast's lawyers beat the FCC's Order sanctioning its BitTorrent throttling in a federal appeals court. "Expect Congress to move very quickly" if that happens, the attorney warns.
Obama's FCC will probably make smaller competitive telcos smile, Lipman says. Don't expect a lot more forbearance deregulatory breaks going to Verizon and Qwest. Those special access rates that the smaller carriers depend on for interconnection to the big telcos will probably get looked at, too. Rural carriers might like the Obama administration as well, among them carriers crabby about exclusive mobile device deals between electronics manufacturers and the big wireless firms.
Anticipate Obama continuing to support the fight to roll back Kevin Martin's relaxation of the FCC's limits on newspaper/TV cross ownership, Lipman predicted, and being skeptical of media consolidation in general. In fact, "I would submit that under an Obama administration some [finalized merger] deals could not have gotten done," he said—XM/Sirius and the AT&T/BellSouth mergers among them.
Expect disability rights groups to get taken seriously about making the next generation of broadband applications more accessible. And get ready for some Congressional Democrats to grumble about bringing back the Fairness Doctrine, a move that Obama and key reform group leaders say they oppose. "I'm not sure that this will be enacted, but expect more pressure here," Lipman mused.
Even the cable industry may get a better deal from Obama than it's getting from Martin—at least in some areas. The President-elect doesn't share Martin's enthusiasm for "a la carte" pricing, letting consumers pick and choose which individual channels to buy.
In any event, "I don't think that the regulatory environment for cable could be any worse than it is today," Lipman noted.
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