FCC Chairman in ‘Breaking Bad’

Published January 7, 2011

Federal Communications Commission (FCC) Chairman Julius Genachowski is guilty of so many bureaucratic misdeeds over the past year, it’s hard to determine precisely when he had his “breaking bad” moment.

The phrase “breaking bad” – as in the AMC television series with the same title – refers to the point when an individual detours permanently from a virtuous path, as when the show’s high school chemistry teacher, diagnosed with cancer, starts making methamphetamine and becomes a violent crime lord.

Mr. Genachowski, a Harvard Law School classmate of President Obama’s, is no criminal, of course, but he’s a big-government guy just like his boss, and people with that attitude tend to propose more government as the answer to all life’s problems, perceived, real or invented.

If government programs result in bad ends, their simple fix is to ladle another layer of government on top. Similarly, if a business is “too big to fail,” send in the government cavalry. Take on a mortgage you can’t afford to repay? No worries: There’s a government app for that.

There’s nothing inherently wrong with being an FCC chairman or any other government bureaucrat, just as there’s nothing wrong with being a mild-mannered high school chemistry teacher. Until one or the other breaks bad, that is.

A U.S. appeals court in April ruled that the FCC had no regulatory authority to enforce network neutrality rules it had imposed on Comcast. In the grand scheme of things, this should have been Mr. Genachowski’s mug-shot moment.

Instead, it got worse. The chairman threatened reclassification of the Internet, giving the FCC enforcement status over the wires carrying the Web to laptops, smart phones and tablets around the nation by a quick name change from the Internet being a Title I information service to a Title II communications service subject to telephone regulations adopted in 1934.

Mr. Genachowski then pushed back the FCC’s monthly meeting in December to the week of Christmas, rammed through passage of net neutrality rules by a 3-2 vote along partisan lines and skedaddled.

Emboldened by his successful sneak attack on the Internet, Mr. Genachowski staged an encore of equal audacity by imposing outrageous demands on both Comcast and NBC Universal – two companies wishing to marry, who have waited for Godfather Genachowski’s blessing for more than a year.

Then, safely snuggled in his Washington safe house in the waning hours of 2010, he announced his tentative approval for the Comcast-NBC-Universal merger – if the two parties meet certain “conditions” imposed by the FCC.

As Tom Giovanetti, president of the Institute for Policy Innovation, pointed out: “This is not one of those mergers where two similar companies decide to merge to gain efficiencies – in other words, less spending and fewer jobs. No, the Comcast-NBC-Universal transaction is between two growing, creative companies in complementary businesses who have decided that the path to greater growth and more jobs lies in combining the two companies.”

Despite the obvious sense behind the merger, the FCC has dithered over this no-brainer for more than a year. Chief among the concerns of the three Democratic commissioners is whether online NBC-Universal content will be accessible to Hulu and other websites should the merger transpire.

It’s an FCC shakedown, pure and simple. Create a year of indecision and uncertainty for two companies seeking to integrate their operations vertically, and use the companies’ resultant vulnerability to force concessions before approval is granted. Never mind that the FCC doesn’t possess any antitrust regulatory authority in the matter, as that responsibility rests with the Department of Justice.
Here too, Mr. Genachowski has created a new FCC authority from whole cloth to further his big-government agenda. After all, what’s a business seeking to be allowed to make business decisions gonna do with a gun pointed at its head? Quick answer: Anything you tell it to do.

The FCC chairman broke very, very bad indeed in the past year. Let’s hope 2011 is his year of redemption. Congress should have something to say about that.

Bruce Edward Walker is managing editor of the Heartland Institute’s InfoTech & Telecom News.