POWELL STILL HOPES FOR HILL TO CALL VoIP SHOTS THIS YEAR

“Maybe if we're really lucky it will get done this year,” Powell said, without expressing opinions on specific bills or provisions. Interested parties also should watch the FCC’s VoIP proceeding, Powell advised. Commission classification would be “second best to legislation because we would have to make it fit within the current structure” of Communications Act titles by service type, and in the interest of finality, because “someone is always going to” litigate against the FCC’s classification, Powell said.

Silicon Valley should be worried about state govts. jumping into VoIP policy, Powell said, calling the state regulatory threat the equivalent of “the Internet tax battle times 1,000.” Many state policy makers see a technology that “looks like a duck,” because it provides voice communication, so they “want to regulate it like a duck,” as an extension of the traditional regime governing phone service, he said: “I say maybe the ugly duck is a swan, and you might want to leave it alone.”

Getting big picture policy right -- in the face of an unprecedented IP challenge and opportunity -- “undergirds” whether the U.S. will be as a great nation in the 21st century as in the 20th, Powell said: “Every facet of public and private life will be affected.” Responding to a question, he expressed opposition to imposing open-access requirements on owners of Wi-Max infrastructure, even big carriers using licensed spectrum: “Everyone’s welcome to lay those pipes and build their own infrastructure… That’s really left to the market.” The FCC view “which is nothing but tentative” is that it’s “not a zero-sum game” choosing between licensed and unlicensed spectrum as the arena for digital innovation, Powell said. He said eventually spectrum licenses should entail proscriptive rather than prescriptive regulation, akin to drivers’ licenses. But “I can’t even describe how hard it is to go from the existing world to a new world,” against the weight of interwoven old networks, business models and legal and regulatory frameworks, Powell said.

Asked what he would change in the landscape defining his job -- to help promote innovation and more intelligent policy -- Powell said creating “a coherent national broadband policy.” The President has “finally” been persuaded to address the issue, and senators have joined the discussion, but there’s “still a lot to do” to achieve a policy, he said: Earlier, Powell had taken credit for “some success making national leadership understand” the question’s significance, particularly for economic prosperity. But “I wish I had jurisdiction to talk to more pieces of it,” he said, to help achieve a comprehensive and integrated program. He said he made a point of stressing to governors that no state healthcare program can pass muster without integrating information technologies, and education must address the needs of “the first generation of digital children.” “They are very, very different,” Powell said. “I have 2 of them. They are weird -- very, very weird.”

Decency, Scarcity & the First Amendment

Decency enforcement is “the most uncomfortable area in which you'd want to work,” Powell said, calling himself “a big First Amendment supporter.” The hot-button issue was raised by venture capitalist Steve Jurvetson, an on-stage questioner, and followed up by audience members. Jurvetson said that in preparing he had consulted an expert -- Howard Stern -- who had responded with this question for Powell: “Aside from Oprah, who else will you not fine?” The reference was to FCC indecency fines of radio stations for broadcasting Stern show discussions of oral sex, but not of TV stations broadcasting treatment of the same subject on Oprah Winfrey’s program that some considered more explicit and extensive. Powell said his discussing individual cases would be illegal but added “if there’s an Oprah case, it’s pending” in which case it can’t be said “we haven’t done it.”

“I respect Stern. I think Stern is a talent and believe he has a right” to be outrageous and test limits, Powell said, but he can’t be immune from the law. The Supreme Court has upheld the constitutionality of the federal criminal decency statute for over-the-air as opposed to paid broadcasting, and Congress has made it clear it expects the FCC to enforce the law, he said. Refusing to enforce broadcast decency would be a “dereliction of your duties.”

“In the way that democracy is supposed to work, it’s political,” Powell said. Congress is “almost supersensitive” to popular outcries like the huge increase in indecency complaints, especially in an election year, and “the FCC is complaint-driven too,” he said. Complaints to the Commission soared in the first quarter to 545,000 -- including against immune cable channels -- from 111 all of 2001, he said: “It’s a job we're told to do, and we do the best we can.” But the Founders “were most afraid of King George” -- meaning govt. content regulation -- so “this is an area we have to be careful in… Something like indecency has a huge amount of subjectivity to it.” Butte, Mont., and Manhattan “may have different views,” he said.

“The notion that the First Amendment changes when you change channels is odd,” Powell added. “I'm troubled that it’s more than odd. It’s dangerous.” The right case to fight the Supreme Court’s old Red Lion decision, upholding against First Amendment challenge broadcast regulation based on the dated premise of resource scarcity, has never arisen, Powell said: “We're ignoring that [modern] reality [of channel abundance] in making judgments about broadcasting. Some day that’s got to change.”

But Powell turned aside a challenge to lead an effort to overturn Red Lion, calling it still good law despite jarring with Supreme Court decisions upholding ACLU attacks against enforcement on the Internet of federal decency law. Stanford Law Prof. Lawrence Lessig -- the other on-stage questioner and a libertarian who posed the challenge -- didn’t necessarily sound persuaded: “There’s always a Supreme Court case” to support a particular position. “It just turns out they're all inconsistent.”

For a Washington bureaucrat, Powell got a warm Silicon Valley reception. AlwaysOn Editor-in-Chief Tony Perkins introduced him as an “open-source politician” for taking up Perkins’ invitation to Powell to become what the host called the first U.S. public official to run a blog. During Powell’s appearance, live Web chat commentary scrolled down a big screen across the conference hall stage from the chairman. It included a good deal of typical online flaming, creating an effect not unlike Mystery Science Theater 3000’s snide silhouetted commentators. But when the discussion ended -- after Broadband Mechanics CEO and Macromedia co- founder Marc Canter expressed hope for “the first father-son presidential ticket” -- Secy. of State Powell’s son and the other participants received strong applause. -- Louis Trager

Innovation Summit Notebook…

FCC Wireless Bureau Chief John Muleta refereed a dispute Wed. over the future of wireless broadband between a Qualcomm executive, stumping for the cellular-based 3G technology EVDO, and an Intel manager, promoting Wi-Fi successor WiMax. Speaking at an AO2004: The Innovation Summit panel on the Stanford U. campus, Muleta said: “Fundamentally, who cares?” The focus should be on the “consumer, and what people want as an experience… Don’t focus too much on people who have locks on the networks, because the networks are going to become irrelevant.” Paul Jacobs, Qualcomm group pres.- wireless & Internet group, argued the cell network is built for wide-area use, whereas Wi-Fi technology isn’t suited for it. “To me, Wi-Fi is more like a cordless phone than a cellphone,” he said. Scott Richardson, group mgr.-Intel broadband wireless division, argued for open standards to support a vast array of mobile devices, some not yet envisioned. Tropos Networks CEO Ron Sege said his company had recently set up a citywide Wi-Fi network in 3 weeks for Twin Cities suburb Chaska, during which time the city manager had won 20% share of households, against established DSL, cable modem and cellular data competitors, for a $16 monthly service. Motorola CTO Padmasree said the priority should be interoperability among various wireless broadband technologies.