REMARKS OF ACTING FCC CHAIRMAN MICHAEL J. COPPS, FCBA SEMINAR: THE COMMUNICATIONS ACT AND THE FCC AT 75 WASHINGTON, DC FEBRUARY 24, 2009 Thank you for inviting me over to help launch this important dialogue. I look out over a most impressive gathering, including three distinguished former FCC Chairmen, Dick Wiley, Reed Hundt and Bill Kennard, as well as my friend and colleague at the current Commisison, Jonathan Adelstein. Thanks to them, and to each of you, for being here to share your perspectives and, I hope, your concrete suggestions for the future of FCC World. I’ll begin by saying “Happy Anniversary” to all the good citizens of that world. Diamond Jubilees don’t come around often—let alone a two-fer with both the Communications Act of 1934 and the FCC celebrating 75 years of service. It’s surely a time to celebrate, but also a time to take stock. How do we take this 75 year old agency, charged with implementing our formative communications law, and make sure it is up to the challenges of the 21st century? Born in the world of primitive radio sets, raised on plain old telephone service, now trying to manage high-speed broadband and orbiting satellites, can we make it an agency for all seasons? I’m glad you’re thinking about this. I’m also pleased that we’ve already had some other dialogues on the subject—including one convened last month by Gigi Sohn and Phil Weiser, and another that took place just last week at NARUC’s winter meeting. And some thoughtful suggestions by Members of Congress, very recently, for example, from Congressman Mike Doyle of Pennsylvania. We need all the help we can get. I look forward to receiving the collective wisdom of this assemblage. There is a lot of experience and good judgment in this room—and a lot of good intentions, too. And I want to emphasize that last part. In the last few weeks, since becoming Acting Chairman, I have tried to reopen lines of communication at the FCC, and it hasn’t just been our internal FCC team that has responded positively; it’s been many of you, too. And that’s not just because what we’re doing will help expedite FCC business; just as much, or more, I think it’s because you share my pride in the FCC and in the able public servants who work there, and that you share my confidence in their ability to contribute even more significantly to the decisions the Commission is called upon to make. Opening up clogged lines of communication is, I think, the vital first step of FCC reform. I’ve spent a lot of time on this since becoming Acting Chairman 33 days ago. A month is not time to remake many worlds, to be sure, but I know FCC World can only benefit from re-opening the arteries of communication. Communication among Commissioners, where each one has access to the data and analyses that inform decision- making, where Commissioners get that information at the outset rather than at the end of the process, and maybe one day, where we can reform the closed meeting rule to actually allow Commissioners to talk and reason together occasionally as a group. Communication between Commissioners and Bureaus, so every Commissioner can ask 2 for and get information and briefings from the Bureaus whenever they want, and wherein the Bureaus know they are free to provide it and are supposed to provide it. And communication across bureaus and offices, so that we begin again to pull in harness on cross-cutting issues—and all of the big issues are cross-cutting. If folks can’t share their varied expertise and experiences among themselves, the sum of what we do can never exceed the parts. If we do share, the sum will almost invariably be greater than the parts. You and I know how much expertise there is at the FCC. I want to see us sharing that expertise—with one another, with Congress, with the Executive Branch, with, most importantly, the public. How better to inform the public policy dialogue than by having real experts gather the facts, tee up the options and their costs and benefits, and put ideas and papers out—not something we have to vote on, but analyses and ideas that we share because we care and we want to inform the policy debate. I am totally convinced that this kind of creative input will significantly enhance the nation’s public policy outcomes, and I am trying to set this process into motion as quickly as I can. Some will surely say the next step, after reopening closed lines of communication, needs to be some vast reorganization of the Commission. That may or may not be true, and in any case would be a decision for more permanent FCC leadership to make. I would, however, offer just a word caution because I’m not so sure that such wide-ranging reorganization is always the first or best answer to the problems we confront. I’ve seen lots of government “reorgs” in my time in Washington. Some have worked, others have been real flops. My only point today is this: let’s be really sure that’s the road we need to travel before we start down it, because comprehensive reorganizations are invariably disruptive; they can all too easily damage department or agency morale; and they take precious time away from those rare moments of reform—like we have now—when our energies would be better focused on good policy outcomes rather than moving the furniture around. I do think it’s time for our agency to take a good hard look at our mission. Indeed, I think every independent agency ought to be required to do this. I have always believed that our government’s independent regulatory agencies were set up to serve the public interest. But many of them, my own included, have sometimes strayed—strayed pretty far—from that purpose. At the FCC—and I single out no specific regime or individual—our processes over time have become opaque rather than transparent. Too often we spend our days refereeing disputes between powerful interests, with consumers and other non-traditional stakeholders pretty much left outside the loop of discussion and decision. Even the public record is difficult for the public to access. That’s a reason to improve our web site, to be sure, and improving the web site would have many benefits. But it’s more than that. It’s appreciating our consumer protection mandate. It’s emphasizing the importance of enforcement. It’s also time to enhance, or at least enforce, our ex parte rules so that when consumers are lucky enough to actually find that elusive public record, they will find more than a brief ex parte letter that says, “Such and Such, Inc. met with Commissioner Copps to discuss retransmission consent.” How does that move the ball forward? I’ll grant you that it helps to know who met with whom; but what was said is usually far more important. 3 Our agency must also cultivate the virtue of predictability. Nobody says “FCC” and “predictability” in the same breath any more. Predictability starts with making policy through rules. Thunderbolts from above are not the way for an independent agency to make policy or to discharge its public interest obligations. When I was in the Commerce Department and we met with foreign governments, we were always advocating for “the rule of law.” Maybe we should start at home. Predictability also means that decisions flow from good data, hard facts and acknowledged expertise. We do too little of our own research and have come to rely too much on the data and studies of others—too often from the very parties trying to drive a particular outcome. For the sake of good policy, for the sake of our own credibility, the Commission just has to do a better job of making sure our proposed rules are better grounded and that they are sustainable—sustainable in the court of law, in the court of Congress and in the court of public opinion. We can afford to do this; we can’t afford not to. And I believe that such processes befit not just the FCC, but the other independent regulatory agencies as well. The new Administration’s Open Government Initiative is music to my ears and offers a wonderful opportunity to make this happen. At this 75th Anniversary, we should be revisiting the vows and obligations we took back at the beginning. What I’m talking about today is not rocket science. To a large degree, it’s just having our goals clear in our mind, and then creating the process and management to achieve them in an open and transparent way. Or, as my old boss, the legendary Fritz Hollings, used to say: “On the way through life make this your goal—keep your eye on the doughnut and not the hole.” So I come here today to harvest the pride you take in your work and to enlist your assistance to help make the FCC the kind of place it can be and must be if we are to bring the wonders of this great Communications Era to all our people. In this regard, the Commission has just been charged with a truly important job. With enactment of the Stimulus bill, we are called upon by Congress and our new President to develop a national strategy to get high-speed, opportunity-creating broadband out to all our citizens. This is a very big deal—the Commission has seldom if ever had a greater summons to action. It’s something I have been hoping for and working for since I came to the Commission almost eight years ago. How we do on this will have a lot to do with how we fare in future years—both the country and the Commission. We also need to engage another dialogue that should have already begun. We must start thinking more rigorously—and I mean all of us—about the profound impact of so much of our communications moving to the Internet in the years ahead. How to keep that Internet open and dynamic is an important part of this dialogue. But so is how to ensure that as the Internet becomes our primary vehicle for communicating with one another, it protects the public interest and informs the civic dialogue that America depends upon for its democracy? That’s a huge question. And there are many other questions to ask and challenges to tackle, so much to do, as we strive to promote consumer protection, innovation and competition in the years just ahead. 4 Talks like this usually end there, looking at the future and invoking the better angels of our nature to make good things happen. But as a not-entirely-reformed, one- time American History professor, permit me one quick backward glance. This diamond jubilee year is also an occasion to celebrate our country’s communications progress and our Commission’s accomplishments over the years. To help us remember and celebrate, I have asked our Managing Director’s Office to start putting together an exhibit marking the 75th anniversary of the FCC and the Communications Act. The exhibit hopefully can be gotten up in time to be seen at the FCC in months just ahead. And we may be reaching out to some of you to see what interesting things—an old-time phone or radio or television or photograph—we might be able to borrow to put on display. We probably don’t need a lot of old ex parte letters, however. I’m optimistic. This is the time to be doing these things and we need to seize it now. And we need to seize it together. Many of you know that I am a true believer about the public and private sectors working more closely together. I believe in that kind of partnering and have spent the bulk of my too-many-to-mention years in Washington (actually almost 39) working for it. I believe this is how, coursing back to the beginning of our nation’s history, we have always overcome our greatest challenges. Now we are at another great crossroads of challenge, with enormous decisions confronting us as a nation. There are different roads we can go down—and that certainly includes communications. Let’s just begin on the premise that none of us carries revealed truth in our heads. None of us knows for sure the painless road to a better future. And none of us is remotely capable of getting us from here to there by him or her self. So it is time again to dust off that partnering that has always brought us through. It can bring us through again. These are going to go down as really high-stakes years for America, and it is dialogues like you commence today that will determine how well we do. Thanks again for having me over. Thanks for all the good things you do. Happy Anniversary to all.