The reluctant planner: FCC Chairman Michael Powell on indecency, innovation, consolidation, and competition.

• Author: Clark, Drew

HIS DECISION TO loosen media ownership rules "insulted your intelligence and wounded democracy," one newspaper columnist declares. He's obsessed with "trying to save America's virtue" writes another. He has presided over "an end to an era of competition," a consumer advocate argues. He's Michael K. Powell, 41, arguably the most controversial chairman in the history of the Federal Communications Commission (FCC), the central planner charged with overseeing the structure and details of telecommunications in America.

As a young man, Powell joined the Army, following in the footsteps of his father, Secretary of State Colin Powell. After a back injury ended his military career, he took up law, graduating from Georgetown University Law Center in 1993. In 1997 the Senate selected him to be one of the two Republican commissioners at the FCC. (The agency has five commissioners, three traditionally picked from the governing party and two from the opposition.) When George W. Bush became president, he tapped Powell for the top job.

There are two ways to look at Powell's performance in office. One is the way Powell portrays himself: as a "Reagan-era child" eager to lighten the government's burden on the communications industries. This Powell has a vision of digital convergence--of a market where cable, telephone, cellular, and satellite companies compete to sell bundles of video, voice, and data packages across Internet-style networks--that is finally gaining traction in the market and in Washington. In this coming world, he argues, government regulation is much less necessary.

That Powell applied the same deregulatory principle to long-established limits on the number of television stations a single company can own. Powell and the other two Republican commissioners approved a modest plan to liberalize those regulations in June 2003, but it was a Pyrrhic victory. Public interest groups denounced the move, and legislators retightened some of the rules. Others were overturned by the U.S. Court of Appeals for the 3rd Circuit.

That's one perspective on Powell. Another view argues that the chairman isn't the deregulator he's reputed to be--that in fact, he's made the government more intrusive. His FCC has pushed an industrial policy-style mandate for digital television (DTV), and last year it forced TV and computer manufacturers to include anti-copying tools in their products. In August the agency took a similar step with Internet telephones, requiring them to install surveillance-friendly wiretap equipment in the name of homeland security.

And while Powell's proposed changes to the media ownership rules were deregulatory in many ways, they would have tightened the caps on how many radio stations a company may own, while grandfathering in most of the acquisitions that predated the rule change. Worse, the chairman seems more interested in letting existing broadcasters merge than in letting new broadcasters emerge: During the Clinton years, he voted against a plan to license new low-power outlets on the FM band, citing the possible "economic impacts" on incumbent stations.

Then, too, politics has forced Powell to eat some of his deregulatory words. Where he once wanted to re-evaluate rules governing "indecency" in broadcasting, he now enforces them with a vengeance. His agency has issued 21 fines--and two consent decrees--for $4.7 million within the last year.

In August--one month prior to issuing the biggest fine of all, a $550,000 slap at OBS owner Viacom for its role in the Super Bowl halftime show featuring Janet Jackson's bared breast--Powell sat down in his office to discuss these issues with reason Editor-in-Chief Nick Gillespie, reason Managing Editor Jesse Waller, and Drew Clark, senior writer for National Journal's Technology Daily.

reason: What would you say of someone who said, "There is nothing unique about the scarcity of radio frequencies.... Rather than continuing to engage in willful denial of reality, the time has come to move forward toward a single standard of First Amendment analysis that recognizes the reality of the media marketplace and respects the intelligence of American consumers."

Michael Powell: It sounds like you're reading a speech of mine.

reason: From 1998.

Powell: I thought it sounded familiar.

I completely agree. Do you think a 12-year-old knows what a broadcast channel is? Do you think that they have any idea what the differences between Channel 4 and Channel 204 are? Do you think that the First Amendment ought to change as the dial changes?

I don't. To suggest that we bend the First Amendment for one industry singularly is to do hazard to our most cherished principle.

reason: What's changed in the six years since you made the speech?

Powell: Nothing's changed, and that's part of the problem.

reason: But you're talking a lot more about indecency now.

Powell: Yeah. It's quite consistent, actually. The indecency laws, first of all, are statutes. The people of the United States, through legislation, have made indecent speech between the hours of 6 a.m. and 11 p.m. over only one medium, broadcasting, unlawful. They have invested in this commission authority to enforce that law. The commission does it in response to the complaints from the public. Many people have tried to argue that we should be like the FBI on indecency and be affirmative, that we should go out and listen to television and radio. We don't do that. We wait for the American people to complain, and then we act on complaints. What has happened in the period you've identified is indecency complaints have skyrocketed.

reason: So you can take complaints. But why do you actually need to levy fines against someone who uses, say, an expletive in a passing phrase, as Bono did at the Golden Globes?

Powell: The statute says two things. It makes indecency unlawful, and it makes profanity unlawful. How do you say it's not profane? It's in the criminal code, which means John Ashcroft could theoretically go try to slap handcuffs on you. Now, nobody expects that, but there's nothing about that statute that says otherwise. If the f-word's not profane, then I don't have any idea what profanity is in America. Presented squarely with a case like that, it became very difficult to say it's not profane, even though I think you could debate whether it's indecent.

reason: But this was the first case where you've used a profanity standard.

Powell: In the past there are some profanity cases linked to blasphemy. But I don't see anything in [the definition of] profanity that says "f-you" is OK but "f-God" is the only thing we care about.

reason: Do you think it's appropriate that radio broadcasters have to meet a different standard than, say, a filmmaker when it comes to indecency or profanity?

Powell: This goes back to, do I think that the First Amendment should be less protective of broadcasting than it should be of cable? I don't particularly.

I can make an argument that radio is free. I can make the argument the Supreme Court has made: It's the one medium that uses a public asset and resource, as opposed to being purely private. The airwaves belong to the United States government and you...