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While on the campaign trail, George W. Bush and John Kerry have largely left issues surrounding the communications industry untouched. Given the national security and other serious domestic issues at stake, that may not be surprising. But there are some other convincing reasons to keep quiet � so says one former Republican commissioner of the Federal Communications Commission. The Republican-led commission has suffered a series of defeats in court and rebukes by Congress over issues ranging from consolidated media ownership rules to key regulations on telephone competition. “For Bush, the FCC has been a political liability � an albatross around his neck,” says Harold Furchtgott-Roth, a Republican commissioner who left the FCC in 2001. “Whenever it was in the news, it was bad news.” A Kerry administration would still have those issues and others to deal with, as well as the ever-present controversy over enforcement of broadcast decency standards. Nevertheless, Kerry might not make dramatic changes at the FCC � and is likely to only tweak telecom policy, rather than attempt a wholesale rewrite. “The policy shift won’t be drastic, but the level of engagement in media and telecommunications issues will be,” says Blair Levin, who was chief of staff to former FCC Chairman Reed Hundt, a Clinton appointee. Alternatively, a second-term President Bush would be expected to continue to pursue a deregulation strategy � but one that would likely be tempered by the continued objections of several Republican senators and a federal appeals court over loosening rules that prevent consolidated ownership of media outlets in local markets. The United States Court of Appeals for the 3rd Circuit rejected the commission’s rules on media ownership in June, which means the agency has to revisit them or, before Dec. 2, ask the Supreme Court to hear an appeal of the 3rd Circuit’s decision. (The FCC declined comment on whether it will seek Supreme Court review.) Kerry voiced support of Senate efforts to overturn the FCC’s media ownership rules in a letter to commission Chairman Michael Powell last year, writing that the “Commission’s first responsibility is to ensure diversity, competition and localism. The Commission has no responsibility to facilitate the business plans of the major networks. . . .” But he wasn’t present for the Senate vote on the issue in September 2003. In addition, the commission must also determine final regulations governing local telephone competition. In March, the U.S. Court of Appeals for the District of Columbia held that the FCC couldn’t force local telephone companies to give rivals like AT&T or MCI use of their networks at discounted rates and couldn’t push decisions about competition in local telephone markets to the states. The original rules expired in June and the commission issued interim rules on Aug. 20. Another point of contention is regulation of telephone service via the Internet, which the commission has undertaken. Last month, FCC Chairman Powell announced at an industry conference that he wanted to push through rules before the inauguration that will protect Internet telephone services from being heavily taxed and regulated by the states. But Democrats � and some Republicans � argue that some state regulation and taxation might be necessary. The Senate Commerce Committee voted in July to preserve state authority to impose access charges and other fees for Internet telephone services, although a floor vote is not expected to happen this year. Key cable-related regulations are also back on the drawing board. The commission has requested Supreme Court review of an October 2003 decision by the U.S. Court of Appeals for the 9th Circuit that rejected the FCC’s decision that cable television operators that offer high-speed Internet access over cable systems would have to open their networks to competitors. More broadly, the commission also will be tasked with guiding the transition of television from analog broadcast technology to digital. And in the area where he perhaps has gained the most notoriety, Powell has asked Congress to increase fines the FCC can impose for radio and television broadcasts the commission deems indecent. The House approved legislation allowing the FCC to raise individual fines from a maximum of $27,500 to $500,000. The legislation is stalled in the Senate. MIDDLE OF THE ROAD Kerry’s Senate record on communications issues reveals a generally centrist approach. For example, when cable rates were revamped in 1992, Kerry was one of a handful of Democrats to vote to lift a cap on cable television rates. He was one of the original Democratic co-sponsors of the Internet Tax Freedom Act, first introduced in 1997, which temporarily banned state and local governments from imposing taxes on Internet access. Along with Bush, Kerry has championed broadband and wireless Internet access. Kerry says that he wants to give tax credits to companies that build high-speed Internet infrastructures. To that end, Kerry has one likely “kitchen cabinet” adviser on telecom issues: his brother Cameron, a telecommunications lawyer at Mintz Levin Cohn Ferris Glovsky and Popeo in Boston. According to his firm, Cameron Kerry, who declined to comment for this story, has represented the cable industry and other communications clients before the FCC on issues ranging from cable rate regulation to regulatory aspects of media company mergers and acquisitions. Kerry has received substantial contributions from telecommunications companies like Verizon, a major employer in Kerry’s home state of Massachusetts, and the law and lobbying firms that represent them, including Mintz Levin, and Skadden, Arps, Slate, Meagher & Flom. CHANGING OF THE GUARD No matter which party takes the White House Nov. 2, the composition of the five-member commission will change in the short term. Commissioner Michael Copps will most likely be left as the lone Democrat for a time, since Democrat Jonathan Adelstein’s term has expired and he must leave the agency after Congress adjourns. If confirmations of new commissioners are held up in the Senate, Copps could remain the only Democrat for months. Without Adelstein, and with possible resignations of any of the three Republican commissioners � even if Bush wins � the commission could be temporarily diminished, although members aren’t expected to depart the commission if it would leave the agency without a three-person quorum. Members of the Senate Commerce Committee signed a bipartisan letter of support to the White House in July endorsing Adelstein’s renomination, but it isn’t likely to be acted upon before Congress adjourns. If Kerry wins, Powell would resign his post according to custom, and Copps would take over as interim chairman of the commission. The FCC commissioners, three of whom are of the president’s party, are appointed by the president and confirmed by the Senate for five-year terms. They can be reappointed. If Republicans retain control of the Senate, the confirmation process could be extended and, in turn, limit what the FCC could accomplish in much of 2005, says former commission chief of staff Levin. Much of the recent partisan push-and-pull at the commission has taken place between Powell and Copps, who led a charge against Powell’s attempts to loosen media ownership rules. Among other efforts, Copps held town hall meetings � which Powell did not sanction � around the country, soliciting input on the rules. Powell’s tenure has been anything but smooth. His drive over media ownership was rebuked twice, first by the Senate last year and then by the 3rd Circuit in June. First appointed as a commissioner by President Bill Clinton in 1997, Powell could depart after the inauguration even if Bush wins, leaving the chairmanship open to Republican Commissioner Kevin Martin, who has frequently clashed with Powell. Copps’ and Powell’s offices declined to comment for this story. Jeff Chester, director of the left-leaning Center for Digital Democracy, says that Copps could use the FCC chairmanship as a “bully pulpit” to raise the profile of media ownership issues. That pleases Chester, who calls Copps “the most public-spirited commissioner that we’ve seen in decades in the United States.” And that is exactly what would make Copps a risky choice as permanent chairman in a Kerry administration, says one Washington telecom lawyer who asked not to be identified, adding that Copps would be no more likely than Powell to be able to build consensus among commissioners. “I hope that Kerry is astute enough to realize that Copps is a liability,” says the lawyer. Copps is a former chief of staff to retiring Sen. Ernest Hollings (D-S.C.), who had been chair and ranking member of the Senate Commerce Committee, which oversees the FCC. Among the senator’s other former staffers is Ivan Schlager, a Skadden, Arps telecom partner in Washington. Schlager, who raised more than $100,000 for Kerry’s presidential campaign and represented America Online in its merger with Time Warner, is considered a possible Democratic nominee for commissioner. Along with Schlager, other potential Kerry picks for chair or commissioner include: Susan Ness, former Democratic FCC commissioner; Kathleen Wallman, former FCC staff member and former deputy assistant to Clinton for economic policy; Gregg Rothschild, former Senate adviser to Kerry on economic and telecom issues and current House Energy and Commerce Committee minority counsel; and former FCC staff member Levin. A deep bench also exists outside of Washington and includes a roster of current and former state public utility commission chairs, among them Jo Anne Sanford of North Carolina, G. Nanette Thompson of Alaska, and Julia Johnson of Florida.

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