Schadenfreude and the FCC

Michael Powell, the former chairman of the Federal Communications Commission (FCC), should be excused if he took some time off today from his busy schedule to listen to some music. An apt tune would be from the musical Avenue Q, called "Schadenfreude."

It's a magnificent word meaning taking delight in the troubles of others. Four years ago, it was then-Commissioner Kevin Martin who scotched a plan by fellow Republican Powell for telephone deregulation by cutting a backroom deal with the two Democratic commissioners. It was a huge issue at the time because such defeats are so rare, a big loss for Powell that put Martin in the spotlight. (Martin later retreated, but that's another story.)

Today, FCC Chairman Martin knows what it feels like when his attempts to, of all things, reregulate cable got shot down after he thought the votes were there for a win.

On one hand, the job of being the chairman of the FCC is extremely challenging. The issues before the Commission are complex, the competing industries all powerful and there is a lot of money on the table.

On the other hand, the job of being the chairman of the FCC can be seen a fairly simple. You need to be able to count to three. On a five-member commission, the chairman needs the votes of two other commissioners to get anything done. Historically, the chairman usually has the vote of at least one other commissioner in his (and it's been all "his" so far) back pocket because at least one appointee is named with the understanding that she (following recent history of women commissioners) will be the able, loyal vote.

Most of the time, the chairman, with some negotiation, gets what he wants. But when the process goes wrong, it becomes a public train wreck of grand proportions.

Under Martin, the math has been getting increasingly difficult. More than once, a Commission meeting scheduled for 9:30 a.m., the usual start time, has been delayed as the Commissioners continue to work out last-minute deals with that elusive third vote becoming difficult to get.

On Nov. 27, with some major items on cable and media regulation at stake, the Commission didn't start its meeting until about 12 hours after the original start time, and didn't conclude until almost midnight.

On the table was a Martin proposal that would give the FCC considerably more power to regulate the cable industry than it has now. The authority would be triggered by a finding that cable service is available to 70 percent of the population and that 70 percent of those homes passed subscribe to cable. Martin's goal is to force the cable industry to adopt a-la-carte pricing so consumers can buy the channels they want to see, rather than have to subscribe to large tiers with channels they don't want. The cable industry opposed that plan with all it had.

At the end of the day, or more accurately, by the middle of the night, Martin was beaten. He couldn't get the finding that he wanted and settled for requiring the cable industry to submit data so that the Commission could figure out exactly how many customers cable companies have. Apparently the data sources that had been used until now weren't good enough for this proposition for the other two Republican commissioners, Deborah Taylor Tate and Robert McDowell, and for Democrat Jonathan Adelstein, who's supposed commitments on the issue are subject to varying interpretations. Consumer groups, who worked hard to tamp down cable rates, thought Adelstein was on their side, as Martin thought Adelstein was on his. Adelstein, who has a history of being indecisive on some major issues, said no commitments had been made. In other words, vote No. 3 hadn't yet been into the box before it was counted.

In the end, Martin overreached by going much too far and much too fast in a direction foreign to him and to his political backers. While Martin is perfectly comfy giving the telephone companies and broadcasters what they want, he has been insistent on trying to force the cable industry to move away from its system of selling consumers packages of programs. He wants an a-la-carte requirement in which consumers can pick and choose among programs without buying a whole batch of them. To do that, Martin needed to re-regulate cable. Regulation is not normally a direction the Republican-dominated FCC is comfortable taking. Congressional Republicans, acting at the behest of the cable industry, responded as could be expected, peppering the Commission with letters of opposition, leaving Martin with no political cover and the other two Republican commissioners with the excuses they needed to prevent a rare consumer-friendly action from taking place.

Adelstein's reasons were more obscure. Philosophically this should have been an easy call due to his friendly relations with consumer and public-interest groups - a relationship that will now need a great deal of mending. Whether he was worried about his pending confirmation for another term, or simply angry at the way Martin has conducted business at the FCC as described in a blistering statement Adelstein issued, really doesn't matter. He wasn't vote No. 3, and as a result Martin was embarrassed and hard-working consumer groups like the Media Access Project, Consumers Union and Consumer Federation of America lost one they could have won.

Perhaps Adelstein will get together with Powell one day and they will both listen to the Avenue Q soundtrack with the lyrics that recall "football players being tackled... CEOs getting shackled!.. Watching actors never reach... The ending of their Oscar speech!.. Schadenfreude!"

And for today: Kevin Martin on his knee, because he couldn't count on three. Schadenfreude.