Text Version


Federal Communications Commission
Before the
Douglass Policy Institute
"Lessons from the Underground Railroad"

(As prepared for delivery)

Washington, DC
February 17, 1998

Good afternoon. First off, I'd like to thank Faye Anderson and the Douglass Institute for putting this program together and strongly supporting my appointment to the FCC. Your support was not overlooked and I'm happy to be here.

For those of you who are hoping to get back to your jobs and other activities early this afternoon, you are in luck: In giving speeches I try to follow the sage advice that if you wish to be long remembered, keep it short. Thus, rather than attempt to convey a lot of details on what the FCC is doing generally, let me instead commemorate Black History month by focusing my comments on the apt theme of this forum: "From the Underground Railroad to the Information Superhighway."

To be honest, when I first heard this title I thought it a bit strained. Is there really any connection between the underground railroad and telecommunications policy? When we asked Faye for a little help with what she was getting at, she dutifully pointed out that both the underground railroad and the information superhighway are powerful metaphors for opportunity. In a time before Black History Month even existed, some of our ancestors rode the Underground Railroad, risking their lives and their families to trade slavery and degradation for freedom and at least a chance for a better life. It dawned on me that this last part -- freedom and a chance -- is what serves as the common ground for both our ancestors migrating from the South and those of us who are trying to make our way onto the information superhighway. Whether we serve as educators, business people, employees, consumers or even as regulators, we all recognize that the information age represents an opportunity to escape some of the problems and shortcomings endured by our predecessors and pull on line with the majority of Americans. Thus, we are rightly excited about the information revolution and the world it promises. Yet, as did the passengers on that earlier train, we embark on this journey with some understandable trepidation.

Congress' blueprint for the information age, the Telecommunications Act of 1996, promises a lot: the benefits of free markets and competition, technological revolution, a nurturing environment for entrepreneurs willing to work hard and compete, and a chance for all Americans to share in the bounty. It is a grand promise. The Act, in effect, promises that an unshackled deregulated market will provide to any one with the desire a chance at a better life. The Act commands regulators and industry to move away from the monopoly-oriented, over-regulatory origins of telecommunications policy and toward a promised land in which the market, rather than bureaucracy, determines how communications resources should be put to their highest and best uses.

We all can prosper in this brave new world, but we must remember that, as it has always been, freedom also brings with it new challenges -- we will have the freedom to fail. Our ancestors would not have feared these challenges. The famed riders of the Underground Railroad were not nay-sayers. They were tenacious optimists, marked by courage, determination, persistence and will. If one road was closed to them, they would find another. If their path ended at a raging river, they swam. And, if Toni Morrison and her novel "The Song of Solomon" are to be believed, I suspect that if our ancestors had to, they would have found a way to fly. They needed help along the way, but never a hand out. They just wanted a fair chance to succeed.

Many risks await in the land of deregulation: risk that the policies we adopt may sometimes lead to anti-competitive effects or may harm consumers in other ways; risk that the communications companies we work for may be acquired, downsized or driven out of business; and risk that, as individuals, we will not vie successfully for the many choice jobs that competition will create. But, as the railroad riders of old knew, the potential rewards of freedom far outweigh the risks and therefore we should not let our fears keeps us from the journey. Does their example, their spirit, hold any lessons for those of us navigating the information superhighway? Indeed it does.

How do we give minorities, women, small businesses and other potentially marginalized interests a chance to participate in the competitive arena of communications? I submit that the answers given to this question in the past are not viable today. The Courts now demand that government offer more rigorous defenses of its race-based and gender-based policies. We can no longer rely on the obvious worthiness of our objectives to validate the policies we adopt to achieve them. Yet, we must not stand paralyzed before the barriers in our path, we must instead find another road. I, for one, am willing to take the Supreme Court at its word -- rigorous judicial scrutiny need not be a death knell to our pursuit of fair opportunity for minorities and women. If we need a Croson study to justify our policies, let's get a study. Let's do what it takes, using uncharted paths, if necessary, to get where we know we need to go.

We need to manufacture a new vehicle to keep up on the information superhighway and we need to use new tools to build that vehicle. The courts aside, with the advent of a competitive free-market we cannot employ the same tools we once used to advance the interests of these groups -- to give them a fair opportunity to compete and to ensure their voices are heard and their communities not ignored. The rewards of competition are many (choice, price, innovation) but the rules of the game are strict and unforgiving of those who do not abide by them. We need policies designed to work within a competitive environment and not against it. If we fail to develop policies that complement this environment, and instead depend on the policies crafted for a regulatory world overseen by benevolent regulators, we are going against traffic and are very likely to crash head on.

I am working hard to find new creative approaches to moving us along. In doing so, I am guided by five principles:

1. Pursue Race- and Gender-Neutral Policies. Whenever possible we should pursue policies that level the playing field for all participants. Minorities and women want a fair chance, not a hand out, and policies that remove barriers and facilitate entry will give minority and women entrepreneurs and small businesses a chance to enjoy the fruits of the telecommunications revolution. Policies that are not race or gender based will have the virtue of avoiding the strict scrutinizing eye of the courts.

2. Encourage Private-Sector Initiatives. The market is inherently the domain of private actors, not public officials. Often the most creative and beneficial approaches to advancing the interests of minorities and women come from the private sector and not the government. It is simply good business to be a good citizen. What government can do is find and highlight these private initiatives and encourage the industries we regulate to follow the examples set. Players in the private sector, rather than us in government, are more likely to know the real keys to success in the industry. Again, because of the absence of a state actor, these initiatives can avoid rigorous judicial scrutiny.

3. Jettison the Self-Evident Rationales of the Past. The courts will no longer accept as valid the assertion that a female broadcast station owner will produce female-oriented programming, nor will they accept the same predictive judgment with respect to race -- no matter how obvious this rationale seems to some. Our new policies will require a much more rigorous defense in order to be sustained. It is time to rethink what it is we are trying to achieve through government policy: Is it more minority owners even if they produce common fare?; Is it more diverse programming regardless of the race or gender of the station owners?; Is it more minority participation in the ownership and operations of these businesses? Is it all of these things? We desperately need to redefine the government interest.

4. Pursue Economics-Based Initiatives. Let's recognize that markets and competition are the domain of economics, not social policy. That is not to say that we cannot pursue social good in a competitive market. It does mean, however, that we must do so in a manner that is consistent with bedrock economic principles or we will again be going against traffic. I believe strongly that policies that assist and or promote minorities and women can be very good for business. We must pursue policies that will illustrate and hammer home that fact.

5. Look for "Win-Win" Policies. Crafting policies that help minorities and women need not be a "zero sum" game. A great deal of the anxiety in our society about race-based policies comes from a perception among the majority that policies designed to help minorities will necessarily harm them. This is nonsense. There are undoubtedly any number of ways to promote the interests of all Americans. It does, however, take some work and creativity. The abandoned tax certificate policy was one such policy. While it fostered economic opportunity for minorities it also provided a tangible benefit to the majority. When a policy offers a "win" for both minority and majority interests, there is greater commitment to the policy and, consequently, a higher chance that it will succeed.

These principles are broad, but they do offer some guiding light for our journey.

My experience at the FCC suggests how we might apply these five principles most effectively. First, it is critical that, as we work to address the special concerns of minorities, women and other groups, we not lose sight of how this work fits into the larger picture. The understandable fear of free market competition can cause us, if we are not disciplined, to latch on to policies that purport to guarantee results or inclusion. In the words of singer Tracy Chapman, "Don't be tempted by the shiny apple." We must keep the overall objective of reaching a free, deregulated telecom world at the forefront of our thoughts, even when that destination seems elusive and distant.

Take, for example, the efforts now being made by schools and libraries to obtain universal service discounts on telecommunications and certain "advanced" services (the so-called "e-rate"). I am told that applications for the e-rate number in the tens of thousands, despite the fact that these applications only started to roll in a few short weeks ago. Even as we celebrate the good that may come of this and other universal service programs, I caution us not to overlook the larger economic context in which universal service implementation is situated. Specifically, I believe we should recognize that there is a trade-off between universal service subsidies and competition. Universal service programs will be funded not out of general tax revenues, as is true of other subsidy programs, but by telecommunications carriers -- the very same carriers that Congress, in passing the Act, had envisioned competing across historical market boundaries.

While I support and will enthusiastically implement the legislative mandate to promote universal service, I remind us always to keep in mind that every dollar we take out of carriers' hands is a dollar they cannot use to enter new markets, bring new innovations to market and otherwise expand and energize competition. And that opportunity cost is one borne not by the carriers alone, but by all of us, as we all stand to benefit from the new services and technologies, lower prices and robust economy that competition in communications will ultimately bring. Thus, as I have stated elsewhere, I believe we must diligently police the growth of universal service programs, lest such growth imperil carriers' efforts to bring the benefits of competition and innovation to consumers. In particular, we must limit carriers' contributions to universal service to the amounts absolutely necessary to fulfill the universal service statutory mandate. We must not be tempted by the shiny apple.

Second, my experience at the FCC suggests that, as we contemplate how to give potentially marginalized groups a chance to participate in the telecom arena, we need to work more to develop innovative, thoughtful, and well-reasoned public policy proposals and leave emotional rhetoric at the door. It is my credo to fight with ideas and not emotion. Since I took office in November, I have met with representatives of literally hundreds of organizations covering all facets of the communications industry and beyond. And I will tell you, quite frankly, that some of these lobbyists would have been more effective had they stayed home. Too often groups come in, hat in hand, asking that we impose, modify, eliminate or even retain this or that policy simply because their constituents would benefit from such action. They pay lip service to our statutory obligations, the broader policy implications and the political and economic context, and they make poor judgments about what can realistically be accomplished in the foreseeable future, or no judgments at all. The message is simply: "We want us some."

If I can speak frankly, I do not care about special interests. I am charged to serve the American people and carry out the will of Congress. If I, or my colleagues, fall into the trap of sympathetic special interests, in the end we will do no good. We may be pleased when we successfully convince others to erect our pet programs, but if these programs are not thoughtful and well-reasoned, they, like sandcastles at high tide, will crumble and wash away. And that should worry all of us. I, for example, worry about whether the previous Commission thought carefully enough before deciding to establish two non-profit corporations to administer the schools and libraries and rural health care programs. As you all know, the General Accounting Office has determined that, despite its best intentions, the Commission created these corporations without statutory authority and in violation of the Government Corporation Control Act. Now, the Commission will have to divert its resources from running these universal service programs to resolving these issues and addressing the concerns of Senator Stevens and others. Similarly, I worry that our current interpretation of the universal service provisions of the 1996 Act offers little guidance or discipline to the FCC with respect to the range of "advanced services" (beyond Internet access and internal connections) that the Commission may ultimately determine must be supported by universal service subsidies.

By pointing out these worries, I do not mean to question the sincerity of those who have pushed for and adopted these programs, which I also support, but I do wish to underscore that the issues I have identified may make these programs vulnerable to attack. Thus, as we push for laws or regulation that will benefit minorities, small businesses and other groups, I urge us all to take some extra time to "do our homework" to make sure that proposals we can push through in the short run will withstand the tides of change.

In closing, I urge you, in the context of promoting involvement in communications by potentially marginalized groups, to offer your own creative, well-reasoned solutions that take into account the larger economic and political context. In so doing, I ask that you:

  1. Pursue race- and gender-neutral policies;

  2. Encourage private-sector initiatives;

  3. Jettison the self-evident rationales of the past;

  4. Pursue economics-based initiatives; and

  5. Look for "win-win" policies.

I also urge you to always remember, as we work to influence how the information superhighway develops, to be guided by the example set by our forefathers and foremothers, who wanted no more than freedom and a fair chance to succeed. I am confident that with un-bending will and persistent effort, like that shown by those who road the underground railroad, we too will reach the promised land.

Thank you.