Perspective: Can Howard Stern now relax?

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.

"Take this hostage crisis of taxpayer money and combine it with Powell's insistence on playing the moral judge and jury over broadcast media, and I view his reign as a very dark time in this antiquated agency's history."
--Joe Schueller

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.

Biography
Declan McCullagh is CNET News.com's chief political correspondent. He spent more than a decade in Washington, D.C., chronicling the busy intersection between technology and politics. Previously, he was the Washington bureau chief for Wired News, and a reporter for Time.com, Time magazine and HotWired. McCullagh has taught journalism at American University and been an adjunct professor at Case Western University.

More Perspectives

Like it or not, Community Standards are the law of the land

You can ask any First Amendment attorney, and he or she will tell you that the Supreme Court ruled on Community Standards a long time ago. Like it or not, it is the law of land. The First Amendment does not allow any person to say or do anything they want at any time. You can not yell "Fire" in a crowded theater.

I am not a prude, and I happen to enjoy Mr. Sterns broadcasts. In fact I consider him relatively mild next to some other broadcasters. I also think it is hypocritical to go after him now with such vigor after his previous broadcasts have not been punished so harsely in the past.

If Chairman Powell had not have gone after out-of-control broadcasts, like the Superbowl incident, he would have been derelict in his duties. Powell has been one of the most open and pro-business FCC Chairman in the history of the FCC. It has been nice to have a Chairman who actually understands the technology that he is presiding over for a change.

What about digital TV?

While I appreciate Mr. McCullagh's balanced perspective, he did skirt over a central issue in Powell's reign - digital TV.

I believe the abomination of regulation known as the broadcast flag has slowed innovation in the DVR and HTPC space and caused a major slow-down as we approach the digital TV era. Frightening set top box manufacturers into having unreasonable content controls that go against what the consumer wants to do with their technology is far from a libertarian point of view. What's worse is that this slow down in STB innovation will certainly slow down our march towards digital TV.

Powell and the FCC are sitting on a taxpayer goldmine. The signal spectrum used to carry analog TV is worth billions, yet it remains mired in a forever-growing transition period. STB's are the key to this transition - we can't force people into new displays, but STB's are a whole other matter. STB adoption was the foothold needed for DTV, and the broadcast flag is killing the STB market. Furthermore, Powell refused to put a stake in the ground and declare a final date on which the analog TV broadcast spectrum would be put up for sale. Powell's shortsightedness in this space is costing taxpayers billions everyday we extend this unending transition period.

Take this hostage crisis of tax payer money and combine it with Powell's insistence on playing the moral judge and jury over broadcast media, and I view his reign as a very dark time in this antiquated agency's history.

[David Arbogast]

You forget

You make interesting points, but I definitely disagree with your assessment. DRM technology, broadcast flag included, is not slowing down digital TV at all. On the contrary, it is making it possible. Content providers have already stated that they will not release digital content without copyright protections in place. Like it or not, that is their right. Without the integrated DRM technology, there will be no future digital tv.

[Remo_Williams]

Third telling example is truly telling.

It tells the ordinary citizen that once again, big business controls much of your life with the gov't blessing.

There can never be more than one fiber to your house, much the same way you will never get an additional water main, gas main, or power line. The FCC continues to believe telecom is not an infrastructure component.

Taken to its logical conclusion, all providers could conceivably run their own fiber to your homes, and then we can have rat's nests of cables crisscrossing the nation, NYC circa 1909 on a national scale

Municipalities, or county/ state governments should own the lines going into homes, period. Verizon or others should be contracted to do the work, and it should be paid by tax revenue. Central offices should be gov't owned as well, with any provider offering competitive rates to all... and by charging rent, each gov't could conceivably offset the tax burden considerably.

I'm sure the above makes sense, which is why it'll never happen.

[Buzz_Friendly]

You got it

Your make complete sense which is why your also right that it won?t happen. This type of crazy regulatory authorities is a prime example of why the US is so far behind other countries in turns of mass communications. As an example I have a very good in Japan can do things on his cell phone I can only dream of.

[mikezav]

First amendment?

Freedom of Speech has nothing to do with Howard Stern's radio program or the Super Bown half time show stunt. It is the common decency of the country to protect the children from this filth. If you wish to hear/view this trash then it should be in a safe place, just like a video store with an "adult's only" or "over 21" section.

Why not just distribute Playboy magazine on playgrounds and under the same guise of freedom?

[Buzz_Friendly]

Oh please

spare us the holier than thou speech. If people with this line of thought were actually concerned about seeing Janet Jackson n*pple on TV then they should be equally as upset at all the beer commercials that ran during the Super bowl. But we never heard a peep about that did we?
As for Stern perhaps the moral majority should learn about that on/off button on your radio. Assuming it works use it assuming it doesn?t get it fixed. It really isn't difficult to use. If you monitor where your kids are who they associate with then monitoring YOUR TV and radio that are in YOUR home should be easy to handle.

Scary that people think like that

People like you scare me. You really think censoring someone like Howard Stern is going to protect children? Obviously, you have no idea what children are learning on the play grounds and on the streets these days. When I was a kid, I heard and saw more "raunchy" things than any Howard Stern program ever talked about. That's life! I guarantee that your children are learning about sex, curse words, etc... from the streets as well. Unless you home school your children, you're fooling your self into believing otherwise.

The only thing censoring broadcasters will accomplish is the start of government meddling into our First Amendment rights, which is already starting to happen. If you don't find that scary, then I don't know what would scary you.

[Remo_Williams]

Uhhh, here's why.

1) It's the Super Bowl, not a playground. They aren't the same.

2) One bared breast is not the same as distributing Playboy, either.

3) American standards of decency, believe it or not, are not reflected in the FCC rulings or even your dopey head. Breasts aren't going to scar children... but acts of violence will. Argue that standard before you attempt this one.

The so-called "safe harbor" extends wildly into the evening hours, where it doesn't belong. What nine year old should be watching television at nine PM? Yours? If so, then you're already forfeiting your parental duties. Don't make the government do what you are too lazy, or stupid, to do.

-R

[lameth]

You know what's really funny?

Am I the only one that thinks a country that spends over 10 Billion (yes that's Billion with a B) dollars a year on porn freaks when they see a nipple for less than five seconds from far away is funny? I bet half the people that complained have an x-rated tape hidden somewhere in their house.
In all seriousness, when she showed her nipple I felt the ground shake. I knew at that moment that it was the end of the world, yes, God's messenger had broken the final seal and the Four Horsemen were galloping straight for America. Thank God for the FCC and Mr. Powell cracking down on all those indecent broadcasters. why, I do believe he saved the american way of life all by hi'self.

PALEASE!!!!

Really folks this is one of those non-issues that ranks right up there with steroid use in sports, the super bowl, and same sex marriages.

If you want something to get your knickers in a twist about look up the following...

OPIC (not OPEC)
Fiat Currency and what it is.
Your bank's solvency.
And the current debate of which currency will be the world standard for exchange.

Learn about those things, and you'll lament the loss of blissful ignorance.

You talk like big business and government are 2 different things

Big Business not only controls the government but is the government. Hardly anything happens without their approval to the detriment to the citizens and our country.