Martin-Powell Chronicles: Dissension in FCC Ranks6/23/2002 8:00 PM Eastern
Perhaps it was the 97 footnotes that finally caused Federal Communications Commission chairman Michael Powell to blow a fuse.
A few weeks ago, Republican FCC member Kevin Martin did something his GOP colleagues at the agency are seeing more and more often. He broke ranks with the GOP majority — a majority, mind you, that had been out of power for eight years — and issued a harsh dissent.
The policy skirmish was over allowing new firms to share direct-broadcast satellite spectrum. Martin's statement ran some 17 pages and contained a staggering 97 footnotes, seemingly relying on tonnage to ensure no one misunderstood the magnitude of his displeasure.
Those who monitor the FCC closely know that Powell has found it difficult to keep his majority in line — especially Martin.
Powell needs help from both Martin and fellow Republican Kathleen Abernathy to avoid a 2-2 deadlock on the four-member FCC. Michael Copps, who sometimes sides with Powell on a key vote, is the agency's lone Democratic commissioner.
In recent months, Martin has issued dissents and disapprovals that suggest conflict with Powell's policies and leadership.
In one case, he teamed up with Copps to issue both a press release and a joint statement to scold the Media Bureau under chief Kenneth Ferree — an early Powell appointee — for going too easy on EchoStar Communications Corp., which had required some subscribers in markets where local over-the-air TV stations are available to obtain a free second dish to view all stations.
In an interview, Martin said he partnered with Copps on the two-dish statement because of concern about Ferree's ruling, which he reviewed for the first time just a few days before its April 4 release.
Martin said his policy is to draft a statement and circulate it among the commissioners, all of whom are invited to join as co-authors.
"I thought the concerns were significant, and I decided that I thought it was important that I make a statement as to why I was concerned about the fact that what the bureau's order [was doing] might not be implementing the carry-one, carry-all provisions of the law in a way that I thought was fair to DBS consumers," Martin said.
Asked whether he and Powell were struggling to build a relationship, Martin insisted the rapport among the FCC's eighth-floor offices was solid, and that disputes were all rooted in policy differences that have a traditional place at the FCC.
"I think the commission as a whole gets along very well, and I get along very well with the chairman. But I think there are always policy differences at times among the different commissioners," Martin said.
FCC spokesman David Fiske said neither he nor Powell's chief of staff, Marsha MacBride, cared to address the Powell-Martin situation.
Sources familiar with Powell's thinking tell another story. They say that both in tone and substance, Martin has not accorded the chairman the loyalty he deserves — especially after Powell took serious heat from Senate Commerce Committee chairman Fritz Hollings. The South Carolina Democrat publicly mocked Powell's free-market leanings by saying he should be leader of the Chamber of Commerce, not chairman of the FCC.
Tension between Powell's and Martin's office is palpable, with trust and goodwill starting to erode, sources said.
"I don't care what Kevin tells you, it's been bad," one source said.
With the benefit of 20-20 hindsight, it seems that Powell and Martin were probably a good bet to collide at some point.
Powell, 39, was a Clinton appointee who joined the FCC in 1997. On President Bush's first working day in office, he appointed Powell chairman and later nominated him for a second five-year term that won Senate ratification last May.
Powell — the son of Secretary of State Colin Powell, a biographical bullet point that almost no story fails to note — used his early months in office to articulate a vision for the agency and a regulatory scheme for the nation that elevated market forces over bureaucratic preferences.
After pinging around the media echo chamber for a few months, the image of Powell that emerged was that of a committed deregulator who would have the allegiance of Abernathy and Martin in driving his agenda across the finish line.
To the extent Powell's familial connection gives him a Washington power base, Martin has an equally potent source of power: the White House.
Martin, 35, has many friends stationed there, and his wife, Catherine, works for Vice President Dick Cheney. Before joining the FCC last July, Martin held down a job as an economic adviser to President Bush, an appointment that was Martin's apparent reward for being a Bush-Cheney campaign warrior.
Martin quit his job as an aide to Republican FCC member Harold Furchgott-Roth in 1999 and joined Bush's campaign office in Austin, Texas, as deputy general counsel. During the post-election furor, Martin could be seen on national television peering over the shoulder of Florida chad counters.
Former FCC officials said it's usually the chairman that has the strongest links to the White House. But because Martin probably has more friends in the White House than Powell, he has a certain liberty to carve out his own agenda without paying a political price for it, sources said.
Former FCC member James Quello said infighting at the FCC is common. Quello, a Democrat, sparred regularly with FCC chairman Reed Hundt, also a Democrat. Even though they wore the same party label, Quello was so conservative he was operationally a Republican — thus frustrating Hundt's ability to move his agenda along.
Nevertheless, Quello urged Martin to help Powell to the extent he can and not make a spectacle out their disagreements.
"He should vote his own conscience, but not be just openly hostile to a Republican chairman, who has enough people attacking him," Quello advised. "Disagree without being disagreeable."
Whether Martin has been disagreeable in Quello's sense of the word is a matter of interpretation.
On the DBS spectrum-sharing issue, it wasn't just the fact that Martin filed a dissent that raised a few eyebrows. In his statement, Martin referred to "the original version of this item" — that is, a working draft that was not adopted by the FCC.
It is inappropriate for FCC officials to disclose the substance of draft documents, sources said. A Martin aide said the reference was necessary for readers to make complete sense of his objections.
Last month, Powell decided to auction TV spectrum in two parts on two different dates, June 19 and Jan. 14. Martin bucked the chairman, saying the auctions should have been delayed indefinitely to give both the FCC and Congress additional time to sort through a nest of complicated spectrum-management issues.
President Bush last Wednesday signed a law voiding both auctions except for a small slice of spectrum to be auctioned later this summer.
On June 6, Martin issued a joint statement — again with Copps — that was critical of Powell's decision to create a Spectrum Task Force. They complained that the FCC was delegating to staff a job that was best handled at the commissioner level, or "critical issues may be left out of consideration."
A week later, Martin broke with Powell and Abernathy by disagreeing with a Wireline Competition Bureau decision that rejected a request from AT&T Corp. in connection with its contributions to the universal phone service subsidy pool.
On the same day — June 13 — Martin voted with Powell to extend cable program-access rules for an additional five years, but it was a close call. Martin indicated his decision to support Powell three weeks before the vote.
But a day before the meeting, after learning that Abernathy was about to cast her first dissent in 13 months on the job, he withdrew his commitment to support extension of the rules.
At some point during the ensuing 24 hours, Martin returned to his original position.
Aides said Martin had to re-evaluate his position because Abernathy decided to dissent fully instead of partially from the program access order. Because Martin had anticipated only a partial dissent from Abernathy, he had to work through some legal issues at the last minute before agreeing to vote with Powell.
"There is a lot of to-ing and fro-ing between offices on items. If commissioner Martin's position on this issue was misuderstood, that is unfortunate. At the end of the day, commissioner Martin stood right with the chairman," said Daniel Gonzalez, Martin's senior legal adviser.
Statistics show that Martin has consistently supported the chairman, said Catherine Crutcher Bohigian, Martin's mass media adviser. Since joining the FCC almost a year ago, Martin has agreed with the chairman on 96 percent of the 333 items voted on in private. At FCC public meetings, Martin has voted with Powell everytime, except for one partial dissent, Bohigian said.
Some FCC observers say that FCC commissioners, regardless of party, do their own thing mainly out of frustration with the fact that they are often called upon to ratify policy calls by the chairman in a largely non-collaborative process.
"This always happens at the commission," one source said. "The commissioners have too little to do [not being the chairman], so it's easy to just carp. I would be amazed if you didn't have this kind of soap opera."
Other sources indicated Martin was signaling his displeasure with the way in which Powell is running the agency.
Martin feels Powell is not giving them enough of a voice in shaping policies, and perhaps Abernathy agrees, sources said.
Powell "is getting away with stuff that Reed [Hundt] would never get away with," one source said.
But another source said the Powell-Abernathy relationship is rock-solid.