On Shaky Ground

Michael Powell's ambitious agenda for the rest of 2004 could be derailed by an empty seat at the FCC.

The FCC chairman and others following media policy are keeping their eyes on Democratic FCC Commissioner Jonathan Adelstein, whose term expired in June 2003. Government rules allow him to keep his post until Congress adjourns this year. Unless he's confirmed for a new term quickly, Adelstein will be forced to leave the agency as early as mid-October.

Without a full complement of commissioners, Powell may find it impossible to win a majority for a number of contentious issues, including major media proceedings he hopes to wrap up this year.

Powell wants to move quickly because he desperately longs to establish his legacy by finishing a number of important policy debates before he exits. Powell could step down as soon as late January if Sen. John Kerry (D-Mass.) wins the White House. Even if Bush wins reelection, Powell is expected to move on to another administration post or return to the private sector before 2005.

At the FCC, Powell is pushing a plan to make TV stations go all-digital by 2009, establish public interest obligations for digital broadcasters and, after several false-starts, finally settle TV stations' cable carriage rights in the digital world.

To head off a stalemate while so many big issues are unresolved, a bipartisan group of senators have asked President Bush to re-nominate Adelstein. "A significant number of issues critical to American consumers are pending before the commission," wrote 16 members of the Commerce Committee in an Aug. 5 letter to the president. Signers included committee chairman Sen. John McCain (R-Ariz.) and ranking Democrat Ernest Hollings of South Carolina.

Although Senate Democratic leader Sen. Tom Daschle (D-S.D.), an Adelstein mentor, submitted Adelstein's name to President Bush in February, the White House hasn't commented publicly on its plans for the commissioner.

Behind the scenes, the White House has negotiated with Daschle to package Adelstein's nomination with several other high-level posts, including the President's picks for the Federal Trade Commission.

Adelstein, who turns 42 this week, is a South Dakota native and former Daschle aide. He joined the FCC in December 2002 to replace Gloria Tristani, who quit to make an unsuccessful run for Congress.

Adelstein quickly made his mark by helping fellow Democrat Michael Copps fight Powell's broadcast ownership deregulation. Adelstein's brash outbursts criticizing Powell's plans nicely complemented Copps' quiet, behind-the-scenes efforts to organize activist opposition to deregulation.

It's ironic that the departure of a frequent critic could hurt Powell. But the chairman has never been able to count on his two fellow Republicans, particularly Kevin Martin, for the votes needed to push any particular proceeding. The presence of an extra body, even a Democratic one, gives Powell more opportunity to bargain for votes.

"A four-member commission is a formula for stalemate, even with a three-to-one Republican majority," says Andrew Schwartzman, president of Media Access Project. "Any one person is potentially the swing vote. It's so tempting to hold out your vote in return for something you want."

Election-year dynamics are also complicating Adelstein's future.

Most in Congress hope to adjourn for the year in mid-October and head home to campaign. Although lingering spending bills could force Congress to stay in session through December, Adelstein will likely have to vacate his post before the elections' outcome is known.

Also hurting Adelstein's chances is Daschle's tight election race. If Daschle loses, Bush has little incentive to re-nominate the commissioner. Even if Daschle retains his Senate seat, Adelstein might not be at the FCC by then.

The strangest scenario could occur if Adelstein is forced to leave and Democrat John Kerry later wins the White House. After Kerry's inauguration, Michael Copps—the other Democratic commissioner—would become chairman on an interim basis. That would set up the odd situation where Copps would be outvoted by his GOP colleagues.

FCC chairmen exercise complete control over the FCC's agenda and typically don't permit votes on issues when they are on the losing side.

Says Legg Mason analyst David Kaut: "Business would grind to a halt."