- Email: [email protected]
US communications policymaking
Comment US communications policymaking Returning power to the presidency Stuart N. Brotman
The present scheme for Executive Branch communications policymaking in the USA lacks a sense of mission. Communications policymaking should be brought within the realm of presidential decisionmaking through the creation of a high-level policymaking unit within the Executive Office of the President, but outside the White House staff structure. The author’s proposed Council of Communications Advisers would emphasize long-range planning, research, mediation, policy coordination and advocacy. Stuart N. Brotman, a Boston-based communications lawyer and management consultant, served as special assistant to President Carter’s principal communications policy adviser. He is a Senior Fellow of The Annenberg Washington Program, Communications Policy Studies, Northwestern University. This article is adapted from a May 1989 colloquium presentation at The Annenberg Washington Program, based on the author’s research study under Program sponsorship. The views expressed herein, however, are solely his own. The author can be contacted at 47 Baskin Road, Lexington, MA 02173, USA (Tel: 617-862 8892).
302
The restructuring of the telephone industry after the divestiture of AT&T: should local Bell operating companies be allowed to manufacture terminal, switching and transmission equipment? Should they be permitted to provide a range of information services, or to own and operate cable television systems? The development of High Definition Television (HDTV): should the USA advocate a world technical standard for HDTV? Should the government amend the antitrust laws to promote domestic HDTV development? Should it create and finance a US-only industry HDTV consortium to compete in the international marketplace? These questions suggest cuttingedge issues that are at the forefront of current communications policy formulation, indeed of national policy formulation. Others, such as the role of the US Postal Service in providing electronic mail and the establishment of competing international satellite systems, have come before. Still others will follow. These types of issues deserve presidential attention, yet under the current structure of Executive Branch communications policymaking in the USA, there is no efficient institutional mechanism to ensure that this will occur. Since Harry Truman, presidents have recognized the need to create an identity for communications policymaking within the Executive Branch.
His Executive Order 110110, issued in February 1950, created the first formal Presidential Communications Policy Board. Its mission was to present Executive Branch solutions to competitive conflicts between government and non-government users for radio frequencies. The change of administrations brought a change in outlook. President Eisenhower’s philosophy was to link communications policy with the military, which was not surprising given the new president’s background and expertise. White House communications policy functions were swiftly reassigned by Executive Order 10460 to the Director of the Office of Defense Mobilization (ODM) in the Defense Department. Because of this shift in emphasis, the primary role of the Executive Branch became the coordination of government telecommunications procurement and its utilization of telecommunications services. Under the president’s close direction, the National Security Council was delegated the responsibility for approving any policies that ODM, the coordinator, would recommend. During his second term, President Eisenhower further enmeshed Executive Branch communications policymaking with military affairs by merging ODM with the Federal Civil Defense Administration. Another box on the organization chart was drawn - for the Office of Civil and Defense Mobilization (OCDM).
TELECOMMUNICATIONS
POLICY
December
1989
Commenl
‘The Rostow Report seemed to be in the right place at the wrong time’
‘Final Report, President’s Task Force on Communications Policy, US Government
Printing Office, Washington, pp 21-2. ‘Idem, p 28.
TELECOMMUNICATIONS
DC, 1968,
POLICY
The waves of yet another administration swept in, this time the New Frontier of President Kennedy. During the transition period following his President-elect Kennedy election, commissioned a committee study headed by Dean James Landis of Harvard Law School. Among other issues of government organization, Landis examined the federal structure for telecommunications management; like his predecessors. President Kennedy responded quickly with an Executive Order. Kennedy’s pursuit of an Executive Branch mission for communications policy, like Eisenhower’s, resulted primarily from another change in the organization chart. The policy apparatus was removed from the Defense Department and restored to the Executive Office of the President, with the creation of a new agency, the Office of the Director of Telecommunications Management (ODTM) in the Office of Emergency Preparedness. From the outset, ODTM was to carry on the work of the OCDM and assume responsibility for coordinating telecommunications R&D activities. But soon after its creation, ODTM was given an important additional role - performing tasks delegated by Congress to the president under the Communications Act of 1962. With minimal staff and budget resources, the agency was given too many varied responsibilities. At best, it could respond to policy events after they had already been set in motion, and in a superficial manner at that. The good news was that the president brought Executive Branch communications policy closer to the White House. The bad news was that the organizational structure became a convenient receptacle for a number of disparate operational and policy tasks. President Kennedy’s assassination left refinements in the hands of his successor, Lyndon Johnson. President Johnson, like President Kennedy, relied on blue-ribbon advice about how his administration would deal with Executive Branch communications policymaking. The President’s Task Force on Communications Policy was headed by Undersecretary of State for Political Affairs, Eugene
December
1989
Rostow. The resulting Rostow Report, as it became known, took prior administrations to task for being too limited in their vision and too narrow in their pursuit of organizational restructuring. It also criticized the policymaking-by-committee approach employed by both Truman and Eisenhower, characterizing the state of affairs it examined as representing an ‘absence of a single focus for the coordination of national communications policy’. It found that neither the president nor individual Executive Branch agencies had access to ‘a source of coordinated and comprehensive policy advice. As a result, the Executive Branch has difficulty presenting a coherent and consistent position on policy problems.” The Rostow Report crisply articulated both a sense of mission and a way to make it operative. It called for an Executive Branch agency to pursue long-range planning, policy formulation and coordination, and to serve as an expert resource for the operational activities of numerous Executive Branch departments and agencies with communications-related responsibilities.2 The Rostow Report could be described as a good point of departure for articulating a sense of mission for communications policy. Unfortunately, the report seemed to be in the right place at the wrong time - it was released a month before the end of the Johnson Administration. President Nixon followed what now was clearly a continuing pattern namely, rearranging the organization chart. To his credit, President Nixon did not have to be persuaded that the Executive Branch. and the president in particular, could play an important role in shaping communications policy. He assigned the task of preparing recommendations in this area to Peter Flanigan, who served as the president’s liaison to the corporate community, and to Clay T. Whitehead, a special assistant with a broad portfolio of responsibilities, including space, atomic energy, maritime affairs and communications. Reviewing all that had come before, Flanigan and Whitehead concluded that the time had come to establish an
303
Comment
Office of Telecommunications (OTP) in the White House OTP’s mission was threefold: l
l
0
‘There has never been a good fit between the iision and its implementation’
3Bureau of the Budget, Executive Office of the President, Study of Federal Communications Organizations, Reorganization P/an No 1 of 1970 - Hearings Before the Subcommittee on Executive and Legislative Reorganization, House Government Operations Committee, 91st Congress, 2d Session, 1970, p 76. 4NTtA Telecom 2000, US Department of Commerce, October 1988 (NTIA Special Publication 88-21). pp 181-2.
304
Policy itself.
Providing economic, technical and systems analysis of telecommunications policies to support national policy formulation and US participation in international telecommunications activities. Developing Executive Branch policy on telecommunications issues such as spectrum management, regulation and industry organization. Advocating Executive Branch policies to the FCC and the Congress and representing the Executive Branch in FCC proceedings3
Whitehead soon became the first director of OTP. Largely because of Whitehead’s presumption that he was, in effect, the country’s communications czar. and the Nixon Administration’s overt attempts to utilize OTP as a club against political foes (by cutting public broadcasting funds, for example), the agency became entangled with the president’s personal agenda. By the time the Watergate scandal broke in 1973, this linkage was so well-known that the credibility of OTP was permanently damaged. For the first time. the negative risks of centralized communications policymaking in the Executive Branch became a part of the learning curve. The potential use of such an agency to stifle the programming decisions of the electronic mass media raised fundamental First Amendment concerns that could not be ignored. The taint of the Nixon Administration carried through the brief tenure of President Ford. who kept OTP intact but denied it any real policy influence, either inside or outside the White House. In view of OTP’s tarnished reputation. a top priority for the incoming Carter Administration was to remove communications policymaking from the White House as soon as possible. The Eisenhower model was dusted off, minus its military trappings, as form triumphed over function. When the organization chart was redrawn, OTP was combined with an existing, low-level unit of the Department of
Commerce (the Office of Telecommunications) to form a new Commerce agency, the National Telecommunications and Information Administration. Thus, the visibility and political clout of Executive Branch communications policymaking receded once again. Without either political leverage or regulatory authority. NTIA can only be a blank slate to be filled in by those appointed to run it: during the decade it has been in existence, that has been its fate. Reviewing this brief history, one might be tempted to return to the organization chart, in order to see where to reassign responsibilities. As history has shown, however, the organization chart mindset tends to beg the question. Two related concepts are at issue here. First, what should the mission of Executive Branch communications policymaking be during the next 20 years? Second, what organizational structure (whether in existence or to be created) can best promote the achievement of this mission? In the process of analysis, it is important to separate these concepts, so that priorities and implementation can be approached in their proper order. Unfortunately, hasty reorganizations are a fundamental flaw in Executive Branch communications policymaking. Historically and currently, there has never been a good fit between the vision and its implementation. The Bush Administration should follow the general advice offered by NTIA in its T&corn 2000 report: ‘[A]t a minimum, take action to centralize responsibility, authorities, and resources. This could be accomplished relatively speedily, and with minimum friction. That it could occur quickly is especially important, given the urgency of the underlying problems.” As the Telecom 2000 report makes clear, NTIA believes that the answer lies in strengthening the charter and resources of NTIA so that it can have a more prominent role in communications policymaking. The integrity and competence of NTIA are well-established and beyond question here. But what NTIA will always lack is a visible
TELECOMMUNICATIONS
POLICY
December
1989
Comment
‘There are some fears that the ghost of telecommunications policy past will rise again’
TELECOMMUNICATIONS
POLICY
position with respect to presidential decisionmaking. After 10 years of existence, NTIA has failed to develop a lasting institutional presence, even within its own department. This critique raises the spectre of OTP and fears among some that the ghost of telecommunications policy past will arise again. Although the sordid politicization of OTP. viewed 15 years later, seems to have been related more directly to personalities and the tone of the Nixon Administration than to an inherently flawed organizational structure, a revival of OTP would probably not be the best way of getting back on course. The negative symbolism of such a revival would be so strong to those with a sense of institutional memory that the agency would operate as ‘guilty-untilproven-innocent’. This burden could only hamper its effectiveness in the short term, a period that would be better utilized by focusing on substance than fighting a barrage of negative publicity. How then can Executive Branch communications policymaking be made more effective? In simple terms, there should be more direct presidential involvement in communications policymaking Before introducing a new alternative, it is helpful to review what the missions of Executive Branch communications policy should be. Three roles are necessary. First, there should be a mandate to undertake focused, long-range planning on communications policy issues that are likely to rise to the level of national interest. In other words, what are the key communications policy issues that the president should know about? How are they likely to play out over time, and with what benefits and risks? The planning function should be backed by a research orientation, an ability to review studies conducted by other government agencies within the Executive Branch (%TIA, for example) and by outside contractors. It should also be supplemented by a flexible mechanism for bringing interested parties together to express their views on the public record, unencumbered by the procedural requirements the Federal Communications
December
1989
Commission (FCC) finds necessary for eventual judicial review. The second role involves the ability to stimulate other units within the Executive Branch to resolve as many differences as possible before sending a policy decision to the president. A neutral presence would enhance the credibility of this role because no individual department loyalties would be at issue. Dispassion also will allow the Executive Branch to be proactive, as necessary, when honest brokering is needed to mediate intergovernmental disputes or to facilitate consensus within the private sector. Perhaps of greatest importance, institutional neutrality will allow for true coordination. In spite of all the complaints concerning a lack of coordination. the bottom line always seems to be that one of the agencies that is part of the coordination process also wishes to be designated as the coordinator. Coordination cannot be effective when someone puts a thumb on the scale, which is what this type of coordination seems to mean. At a higher level of communications policy coordination, the coordinator would be charged with the responsibility of reconciling as many divergent Executive Branch viewpoints on an issue as possible. Where fundamental disagreements are evident, they should be highlighted by the best justifications their proponents can offer. Finally, an analysis of options should be presented to the president for decisionmaking: what will happen if option A is implemented, option B, and so forth? The third role the Executive Branch must play involves advocacy, both on the domestic front and in the international arena. The administration should articulate its communications policy positions before the FCC and and should intervene in Congress, legislative proceedings and administrative rulemakings to advance those positions. The resulting exchange of ideas would create a more energized environment for policy decisions. The administration should also exercise advocacy internationally by advancing US telecommunications interests in a world populated by centralized communications agencies.
305
Comment
‘The success of the EOP has created opportunities for expansion’
306
If OTP represents an organizational structure potentially too close to the White House, and NTIA one that is too removed from presidential decisionmaking, is there some place in between that might strike the best balance between function and form? The answer seems to lie outside the White House itself, yet still within the Executive Office of the President (EOP). Although frequently considered as part of the White House, the EOP is separate from the personal staff to the president, which is composed of advisers on national security, legislative affairs, political affairs, policy development, law and personnel, among others. It functions as the principal substantive support organization for presidential decisionmaking. A prominent unit within the EOP is the Office of Management and Budget, which approves the budgets for all Executive Branch departments and agencies before their submission to Congress for appropriations. The EOP is a relatively recent creature of government, and its success has created opportunities for prudent expansion. International trade matters are now handled by the United States Trade Representatives (USTR). a position that has grown in scope and stature as the importance of trade policies has risen on the agenda of major national concerns. The Council on Environmental Quality, another EOP unit, advises the president on issues related to conservation and natural resources It is important to note that units such as these have established productive working relationships with other units of the Executive Branch that share common, substantive concerns. USTR, for example, helps to coordinate trade policy in collaboration with the Departments of State and Commerce, among others. It also testifies before Congress on trade policy development and shapes the public stance the administration will take on various trade issues. A comparable mix of responsibilities is found in the EOP’s Office of Science and Technology Policy, which is headed by a director who is also designated as the president’s principal science and technology adviser. This
unit has ongoing interaction with the Departments of Energy and Defense. One lesson that can be learned here is that in critical policy development areas other than communications a sense of harmony has been achieved between a small, high-level EOP office and the larger Executive Branch departments that encompass policy and operational responsibilities. There is nothing inherent in communications that would impede the achievement of a similar level of harmony under an EOPlExecutive Branch organizational model. This model works for several reasons. First, as noted, it respects Executive Branch diversity. Consensus is needed only for the most important issues, a very small number that are of direct concern to the president and the White House staff. In these situations, various EOP units have served the useful purpose of helping to sort out and prioritize policy positions within the Executive Branch so that policy debates can be translated into issues that can be decided at the White House level. Second, given the necessarily small size of the EOP, there is little pressure exerted by any unit to assume more responsibilities than can be handled by its staff and budget. In contrast to Executive Branch departments and agencies, there is little, if any, institutional momentum in the EOP to ask for more money and staff because there is a presumption against expansion: the closeness of the EOP to the White House keeps its units small but influential. Other parts of the Executive Branch. however, seem perpetually compelled to broaden their scope and expand their budgets in order to be perceived as influential. In short, there is great virtue in maintaining a small policy office, if it has a sufficiently high position on the organization chart. Closeness to the White House also permits EOP units both to achieve consistent visibility within government and to wield real political clout when necessary. These attributes are absent from Executive Branch communications policymaking today because NTIA has been designed to operate at too great a distance from the centre of
TELECOMMUNICATIONS
POLICY
December
1989
Comment
‘The CCA could call upon some of the best minds in communications policy’
TELECOMMUNICATIONS
POLICY
power. that communications Assuming policymaking is elevated to the EOP, the unit’s structure should be addressed. Incorporating communications policy into the existing Office of Science and Technology (OST) Policy may be the path of least resistance, but this solution seems unsatisfactory because it would preclude real attention to the vast concerns of communications. In terms, communications practical would have to compete with other concerns in that office, including defense technology and systems, life sciences and space sciences. As a result, OST would be assuming more responsibilities without the requisite new resources. Moreover. it is likely that communications would be the responsibility of a single staff member, an assistant director, who will not be able to handle all of the functions necessary in the communications policy field. In addition, the assistant director will be one layer removed from the leadership of OST, thus giving him or her no direct access to the president. Rather, policy would be filtered through the OST director, who will probably not have a strong background in comdemonExperience munications. strates that such indirect access is not effective. The better option, bolder but modest nevertheless, would be a new entity within EOP, to be known as the Council of Communications Advisers (CCA). The council would be composed of three members appointed by the president, with one designated as chairman. Unlike those who are members of the White House staff, these individuals would be subject to Senate confirmation. This would provide Congress with a measure of advice and consent that was, and would be, absent if an OTP-like unit were reestablished. The confirmation process would help ensure that truly qualified people are appointed to these positions. It has also been the norm for EOP units; the Council of Economic Advisers (CEA), for example, is always comprised of three leading economists, typically men and women who have achieved stature in academia or busi-
December
1989
ness. CCA appointments can and should reflect a similar high level of quality. Members could be drawn from universities, think-tanks and the private sector. Each would enter the job with well-recognized expertise in communications policy issues, which would enable them to confront complex problems as soon as they were appointed. They would also share the president’s political philosophy, which would help ensure that their advice carried influence. The stature of this organization, like that of CEA, would deter a president from making appointments more on the basis of politics than on merit. By not being a permanent bureaucracy, it could call upon some of the best minds in communications policy for a ‘tour of duty’. As with CEA, the members of CCA would be supported by senior staff, again drawn from the ranks of those in academia and the private sector. A staff of 15 people, for example, would represent a broad range of communications policy expertise. It would reflect a variety of disciplines, such as law, economics, engineering, management and international relations. Other specialists could focus on specisuch as common fic policy areas, carrier and mass media. Staff members could also be designated as fulltime liaisons to Congress, the FCC, NTIA and the State Department. The staff, in short, should be responsible, under the direction of the Council’s members, for long-range planning, research and coordination activities. Where necessary, they would be empowered to leverage their capabilities by assembling inter-agency task forces, soliciting assistance from other Executive Branch units, and contracting with private firms for research support. The relatively modest budget for CCA would thus deliver value well in excess of the resources under its immediate control. CCA staff members, like those of CEA, would also be likely candidates for later government service in other agencies that have responsibilities for communications issues. For example, it would not be surprising to have a staff member appointed as FCC Commissioner or Director of NTIA. The
307
Comment
‘CCA’s political clout would be obvious’
5Henry Geller, The Federal Structure for Telecommunications Policy, The Benton Foundation, Washington, DC, 1989, p 26.
CCA model would therefore have the additional beneficial effect of serving as a training ground for those who aspire to other communications policy positions. It would help set a higher standard of excellence for government service in communications policy as a whole. Because the council members will not themselves be given any regulatory authority, the powers and responsibilities of the FCC would remain intact. Communications policy implementation would continue to be the domain of the FCC and Congress. This bright-line distinction should be emphasized when the council is created in order to assure these policy players that the administration has no intention of shifting the established balance of power. A three-person council with a designated chairman has several advantages over a single director. First, it can reflect varied substantive emphasis and different interpersonal skills, the combination of which in a collegial body can have a positive synergistic effect. Collegiality would also force the members to debate issues vigorously among themselves. A council form of government also lessens the possibility that the negative perception of a ‘communications czar’ will arise. The chairman will be first among equals. of course, but, with two other strong individuals sitting at the table, it will be more difficult for the chairman to aggregate power merely by virtue of that designation.
The CCA as an institution. and the chairman as its representative, would be highly visible on the national and international stage. This is particularly important since foreign governments are perpetually confused as to who is authorized to speak for the administration on communications policymaking issues. Equally important. the chairman and other members would have direct access to the president. CCA’s political clout would be obvious, thus facilitating its assumption of a leading role in Executive Branch communications policy formulation. CCA members would be able to interact as peers with leadership in other EOP units. They would be able to draw on the expertise of these units and offer expertise in return: international trade p&icy in telecommunications, for example, might be discussed with USTR, satellite policy with OST and telephone industry restructuring with the CEA. The benefits of such collaborations are potentially exciting. Under the current organizational structure, this promise cannot be tapped because there is no communications policy unit within the Executive Branch that corresponds to any of the various EOP units. Henry Geller, NTIA’s first director, recently wrote, ‘The Information Age, with its global competition. demands that we put our policy house in order.” There is no better way to express the urgency of this critical challenge.
TELECOMMUNICATIONS
POLICY
December
1989
The present scheme for Executive Branch communications policymaking in the USA lacks a sense of mission. Communications policymaking should be brought within the realm of presidential decisionmaking through the creation of a high-level policymaking unit within the Executive Office of the President, but outside the White House staff structure. The author’s proposed Council of Communications Advisers would emphasize long-range planning, research, mediation, policy coordination and advocacy. Stuart N. Brotman, a Boston-based communications lawyer and management consultant, served as special assistant to President Carter’s principal communications policy adviser. He is a Senior Fellow of The Annenberg Washington Program, Communications Policy Studies, Northwestern University. This article is adapted from a May 1989 colloquium presentation at The Annenberg Washington Program, based on the author’s research study under Program sponsorship. The views expressed herein, however, are solely his own. The author can be contacted at 47 Baskin Road, Lexington, MA 02173, USA (Tel: 617-862 8892).
302
The restructuring of the telephone industry after the divestiture of AT&T: should local Bell operating companies be allowed to manufacture terminal, switching and transmission equipment? Should they be permitted to provide a range of information services, or to own and operate cable television systems? The development of High Definition Television (HDTV): should the USA advocate a world technical standard for HDTV? Should the government amend the antitrust laws to promote domestic HDTV development? Should it create and finance a US-only industry HDTV consortium to compete in the international marketplace? These questions suggest cuttingedge issues that are at the forefront of current communications policy formulation, indeed of national policy formulation. Others, such as the role of the US Postal Service in providing electronic mail and the establishment of competing international satellite systems, have come before. Still others will follow. These types of issues deserve presidential attention, yet under the current structure of Executive Branch communications policymaking in the USA, there is no efficient institutional mechanism to ensure that this will occur. Since Harry Truman, presidents have recognized the need to create an identity for communications policymaking within the Executive Branch.
His Executive Order 110110, issued in February 1950, created the first formal Presidential Communications Policy Board. Its mission was to present Executive Branch solutions to competitive conflicts between government and non-government users for radio frequencies. The change of administrations brought a change in outlook. President Eisenhower’s philosophy was to link communications policy with the military, which was not surprising given the new president’s background and expertise. White House communications policy functions were swiftly reassigned by Executive Order 10460 to the Director of the Office of Defense Mobilization (ODM) in the Defense Department. Because of this shift in emphasis, the primary role of the Executive Branch became the coordination of government telecommunications procurement and its utilization of telecommunications services. Under the president’s close direction, the National Security Council was delegated the responsibility for approving any policies that ODM, the coordinator, would recommend. During his second term, President Eisenhower further enmeshed Executive Branch communications policymaking with military affairs by merging ODM with the Federal Civil Defense Administration. Another box on the organization chart was drawn - for the Office of Civil and Defense Mobilization (OCDM).
TELECOMMUNICATIONS
POLICY
December
1989
Commenl
‘The Rostow Report seemed to be in the right place at the wrong time’
‘Final Report, President’s Task Force on Communications Policy, US Government
Printing Office, Washington, pp 21-2. ‘Idem, p 28.
TELECOMMUNICATIONS
DC, 1968,
POLICY
The waves of yet another administration swept in, this time the New Frontier of President Kennedy. During the transition period following his President-elect Kennedy election, commissioned a committee study headed by Dean James Landis of Harvard Law School. Among other issues of government organization, Landis examined the federal structure for telecommunications management; like his predecessors. President Kennedy responded quickly with an Executive Order. Kennedy’s pursuit of an Executive Branch mission for communications policy, like Eisenhower’s, resulted primarily from another change in the organization chart. The policy apparatus was removed from the Defense Department and restored to the Executive Office of the President, with the creation of a new agency, the Office of the Director of Telecommunications Management (ODTM) in the Office of Emergency Preparedness. From the outset, ODTM was to carry on the work of the OCDM and assume responsibility for coordinating telecommunications R&D activities. But soon after its creation, ODTM was given an important additional role - performing tasks delegated by Congress to the president under the Communications Act of 1962. With minimal staff and budget resources, the agency was given too many varied responsibilities. At best, it could respond to policy events after they had already been set in motion, and in a superficial manner at that. The good news was that the president brought Executive Branch communications policy closer to the White House. The bad news was that the organizational structure became a convenient receptacle for a number of disparate operational and policy tasks. President Kennedy’s assassination left refinements in the hands of his successor, Lyndon Johnson. President Johnson, like President Kennedy, relied on blue-ribbon advice about how his administration would deal with Executive Branch communications policymaking. The President’s Task Force on Communications Policy was headed by Undersecretary of State for Political Affairs, Eugene
December
1989
Rostow. The resulting Rostow Report, as it became known, took prior administrations to task for being too limited in their vision and too narrow in their pursuit of organizational restructuring. It also criticized the policymaking-by-committee approach employed by both Truman and Eisenhower, characterizing the state of affairs it examined as representing an ‘absence of a single focus for the coordination of national communications policy’. It found that neither the president nor individual Executive Branch agencies had access to ‘a source of coordinated and comprehensive policy advice. As a result, the Executive Branch has difficulty presenting a coherent and consistent position on policy problems.” The Rostow Report crisply articulated both a sense of mission and a way to make it operative. It called for an Executive Branch agency to pursue long-range planning, policy formulation and coordination, and to serve as an expert resource for the operational activities of numerous Executive Branch departments and agencies with communications-related responsibilities.2 The Rostow Report could be described as a good point of departure for articulating a sense of mission for communications policy. Unfortunately, the report seemed to be in the right place at the wrong time - it was released a month before the end of the Johnson Administration. President Nixon followed what now was clearly a continuing pattern namely, rearranging the organization chart. To his credit, President Nixon did not have to be persuaded that the Executive Branch. and the president in particular, could play an important role in shaping communications policy. He assigned the task of preparing recommendations in this area to Peter Flanigan, who served as the president’s liaison to the corporate community, and to Clay T. Whitehead, a special assistant with a broad portfolio of responsibilities, including space, atomic energy, maritime affairs and communications. Reviewing all that had come before, Flanigan and Whitehead concluded that the time had come to establish an
303
Comment
Office of Telecommunications (OTP) in the White House OTP’s mission was threefold: l
l
0
‘There has never been a good fit between the iision and its implementation’
3Bureau of the Budget, Executive Office of the President, Study of Federal Communications Organizations, Reorganization P/an No 1 of 1970 - Hearings Before the Subcommittee on Executive and Legislative Reorganization, House Government Operations Committee, 91st Congress, 2d Session, 1970, p 76. 4NTtA Telecom 2000, US Department of Commerce, October 1988 (NTIA Special Publication 88-21). pp 181-2.
304
Policy itself.
Providing economic, technical and systems analysis of telecommunications policies to support national policy formulation and US participation in international telecommunications activities. Developing Executive Branch policy on telecommunications issues such as spectrum management, regulation and industry organization. Advocating Executive Branch policies to the FCC and the Congress and representing the Executive Branch in FCC proceedings3
Whitehead soon became the first director of OTP. Largely because of Whitehead’s presumption that he was, in effect, the country’s communications czar. and the Nixon Administration’s overt attempts to utilize OTP as a club against political foes (by cutting public broadcasting funds, for example), the agency became entangled with the president’s personal agenda. By the time the Watergate scandal broke in 1973, this linkage was so well-known that the credibility of OTP was permanently damaged. For the first time. the negative risks of centralized communications policymaking in the Executive Branch became a part of the learning curve. The potential use of such an agency to stifle the programming decisions of the electronic mass media raised fundamental First Amendment concerns that could not be ignored. The taint of the Nixon Administration carried through the brief tenure of President Ford. who kept OTP intact but denied it any real policy influence, either inside or outside the White House. In view of OTP’s tarnished reputation. a top priority for the incoming Carter Administration was to remove communications policymaking from the White House as soon as possible. The Eisenhower model was dusted off, minus its military trappings, as form triumphed over function. When the organization chart was redrawn, OTP was combined with an existing, low-level unit of the Department of
Commerce (the Office of Telecommunications) to form a new Commerce agency, the National Telecommunications and Information Administration. Thus, the visibility and political clout of Executive Branch communications policymaking receded once again. Without either political leverage or regulatory authority. NTIA can only be a blank slate to be filled in by those appointed to run it: during the decade it has been in existence, that has been its fate. Reviewing this brief history, one might be tempted to return to the organization chart, in order to see where to reassign responsibilities. As history has shown, however, the organization chart mindset tends to beg the question. Two related concepts are at issue here. First, what should the mission of Executive Branch communications policymaking be during the next 20 years? Second, what organizational structure (whether in existence or to be created) can best promote the achievement of this mission? In the process of analysis, it is important to separate these concepts, so that priorities and implementation can be approached in their proper order. Unfortunately, hasty reorganizations are a fundamental flaw in Executive Branch communications policymaking. Historically and currently, there has never been a good fit between the vision and its implementation. The Bush Administration should follow the general advice offered by NTIA in its T&corn 2000 report: ‘[A]t a minimum, take action to centralize responsibility, authorities, and resources. This could be accomplished relatively speedily, and with minimum friction. That it could occur quickly is especially important, given the urgency of the underlying problems.” As the Telecom 2000 report makes clear, NTIA believes that the answer lies in strengthening the charter and resources of NTIA so that it can have a more prominent role in communications policymaking. The integrity and competence of NTIA are well-established and beyond question here. But what NTIA will always lack is a visible
TELECOMMUNICATIONS
POLICY
December
1989
Comment
‘There are some fears that the ghost of telecommunications policy past will rise again’
TELECOMMUNICATIONS
POLICY
position with respect to presidential decisionmaking. After 10 years of existence, NTIA has failed to develop a lasting institutional presence, even within its own department. This critique raises the spectre of OTP and fears among some that the ghost of telecommunications policy past will arise again. Although the sordid politicization of OTP. viewed 15 years later, seems to have been related more directly to personalities and the tone of the Nixon Administration than to an inherently flawed organizational structure, a revival of OTP would probably not be the best way of getting back on course. The negative symbolism of such a revival would be so strong to those with a sense of institutional memory that the agency would operate as ‘guilty-untilproven-innocent’. This burden could only hamper its effectiveness in the short term, a period that would be better utilized by focusing on substance than fighting a barrage of negative publicity. How then can Executive Branch communications policymaking be made more effective? In simple terms, there should be more direct presidential involvement in communications policymaking Before introducing a new alternative, it is helpful to review what the missions of Executive Branch communications policy should be. Three roles are necessary. First, there should be a mandate to undertake focused, long-range planning on communications policy issues that are likely to rise to the level of national interest. In other words, what are the key communications policy issues that the president should know about? How are they likely to play out over time, and with what benefits and risks? The planning function should be backed by a research orientation, an ability to review studies conducted by other government agencies within the Executive Branch (%TIA, for example) and by outside contractors. It should also be supplemented by a flexible mechanism for bringing interested parties together to express their views on the public record, unencumbered by the procedural requirements the Federal Communications
December
1989
Commission (FCC) finds necessary for eventual judicial review. The second role involves the ability to stimulate other units within the Executive Branch to resolve as many differences as possible before sending a policy decision to the president. A neutral presence would enhance the credibility of this role because no individual department loyalties would be at issue. Dispassion also will allow the Executive Branch to be proactive, as necessary, when honest brokering is needed to mediate intergovernmental disputes or to facilitate consensus within the private sector. Perhaps of greatest importance, institutional neutrality will allow for true coordination. In spite of all the complaints concerning a lack of coordination. the bottom line always seems to be that one of the agencies that is part of the coordination process also wishes to be designated as the coordinator. Coordination cannot be effective when someone puts a thumb on the scale, which is what this type of coordination seems to mean. At a higher level of communications policy coordination, the coordinator would be charged with the responsibility of reconciling as many divergent Executive Branch viewpoints on an issue as possible. Where fundamental disagreements are evident, they should be highlighted by the best justifications their proponents can offer. Finally, an analysis of options should be presented to the president for decisionmaking: what will happen if option A is implemented, option B, and so forth? The third role the Executive Branch must play involves advocacy, both on the domestic front and in the international arena. The administration should articulate its communications policy positions before the FCC and and should intervene in Congress, legislative proceedings and administrative rulemakings to advance those positions. The resulting exchange of ideas would create a more energized environment for policy decisions. The administration should also exercise advocacy internationally by advancing US telecommunications interests in a world populated by centralized communications agencies.
305
Comment
‘The success of the EOP has created opportunities for expansion’
306
If OTP represents an organizational structure potentially too close to the White House, and NTIA one that is too removed from presidential decisionmaking, is there some place in between that might strike the best balance between function and form? The answer seems to lie outside the White House itself, yet still within the Executive Office of the President (EOP). Although frequently considered as part of the White House, the EOP is separate from the personal staff to the president, which is composed of advisers on national security, legislative affairs, political affairs, policy development, law and personnel, among others. It functions as the principal substantive support organization for presidential decisionmaking. A prominent unit within the EOP is the Office of Management and Budget, which approves the budgets for all Executive Branch departments and agencies before their submission to Congress for appropriations. The EOP is a relatively recent creature of government, and its success has created opportunities for prudent expansion. International trade matters are now handled by the United States Trade Representatives (USTR). a position that has grown in scope and stature as the importance of trade policies has risen on the agenda of major national concerns. The Council on Environmental Quality, another EOP unit, advises the president on issues related to conservation and natural resources It is important to note that units such as these have established productive working relationships with other units of the Executive Branch that share common, substantive concerns. USTR, for example, helps to coordinate trade policy in collaboration with the Departments of State and Commerce, among others. It also testifies before Congress on trade policy development and shapes the public stance the administration will take on various trade issues. A comparable mix of responsibilities is found in the EOP’s Office of Science and Technology Policy, which is headed by a director who is also designated as the president’s principal science and technology adviser. This
unit has ongoing interaction with the Departments of Energy and Defense. One lesson that can be learned here is that in critical policy development areas other than communications a sense of harmony has been achieved between a small, high-level EOP office and the larger Executive Branch departments that encompass policy and operational responsibilities. There is nothing inherent in communications that would impede the achievement of a similar level of harmony under an EOPlExecutive Branch organizational model. This model works for several reasons. First, as noted, it respects Executive Branch diversity. Consensus is needed only for the most important issues, a very small number that are of direct concern to the president and the White House staff. In these situations, various EOP units have served the useful purpose of helping to sort out and prioritize policy positions within the Executive Branch so that policy debates can be translated into issues that can be decided at the White House level. Second, given the necessarily small size of the EOP, there is little pressure exerted by any unit to assume more responsibilities than can be handled by its staff and budget. In contrast to Executive Branch departments and agencies, there is little, if any, institutional momentum in the EOP to ask for more money and staff because there is a presumption against expansion: the closeness of the EOP to the White House keeps its units small but influential. Other parts of the Executive Branch. however, seem perpetually compelled to broaden their scope and expand their budgets in order to be perceived as influential. In short, there is great virtue in maintaining a small policy office, if it has a sufficiently high position on the organization chart. Closeness to the White House also permits EOP units both to achieve consistent visibility within government and to wield real political clout when necessary. These attributes are absent from Executive Branch communications policymaking today because NTIA has been designed to operate at too great a distance from the centre of
TELECOMMUNICATIONS
POLICY
December
1989
Comment
‘The CCA could call upon some of the best minds in communications policy’
TELECOMMUNICATIONS
POLICY
power. that communications Assuming policymaking is elevated to the EOP, the unit’s structure should be addressed. Incorporating communications policy into the existing Office of Science and Technology (OST) Policy may be the path of least resistance, but this solution seems unsatisfactory because it would preclude real attention to the vast concerns of communications. In terms, communications practical would have to compete with other concerns in that office, including defense technology and systems, life sciences and space sciences. As a result, OST would be assuming more responsibilities without the requisite new resources. Moreover. it is likely that communications would be the responsibility of a single staff member, an assistant director, who will not be able to handle all of the functions necessary in the communications policy field. In addition, the assistant director will be one layer removed from the leadership of OST, thus giving him or her no direct access to the president. Rather, policy would be filtered through the OST director, who will probably not have a strong background in comdemonExperience munications. strates that such indirect access is not effective. The better option, bolder but modest nevertheless, would be a new entity within EOP, to be known as the Council of Communications Advisers (CCA). The council would be composed of three members appointed by the president, with one designated as chairman. Unlike those who are members of the White House staff, these individuals would be subject to Senate confirmation. This would provide Congress with a measure of advice and consent that was, and would be, absent if an OTP-like unit were reestablished. The confirmation process would help ensure that truly qualified people are appointed to these positions. It has also been the norm for EOP units; the Council of Economic Advisers (CEA), for example, is always comprised of three leading economists, typically men and women who have achieved stature in academia or busi-
December
1989
ness. CCA appointments can and should reflect a similar high level of quality. Members could be drawn from universities, think-tanks and the private sector. Each would enter the job with well-recognized expertise in communications policy issues, which would enable them to confront complex problems as soon as they were appointed. They would also share the president’s political philosophy, which would help ensure that their advice carried influence. The stature of this organization, like that of CEA, would deter a president from making appointments more on the basis of politics than on merit. By not being a permanent bureaucracy, it could call upon some of the best minds in communications policy for a ‘tour of duty’. As with CEA, the members of CCA would be supported by senior staff, again drawn from the ranks of those in academia and the private sector. A staff of 15 people, for example, would represent a broad range of communications policy expertise. It would reflect a variety of disciplines, such as law, economics, engineering, management and international relations. Other specialists could focus on specisuch as common fic policy areas, carrier and mass media. Staff members could also be designated as fulltime liaisons to Congress, the FCC, NTIA and the State Department. The staff, in short, should be responsible, under the direction of the Council’s members, for long-range planning, research and coordination activities. Where necessary, they would be empowered to leverage their capabilities by assembling inter-agency task forces, soliciting assistance from other Executive Branch units, and contracting with private firms for research support. The relatively modest budget for CCA would thus deliver value well in excess of the resources under its immediate control. CCA staff members, like those of CEA, would also be likely candidates for later government service in other agencies that have responsibilities for communications issues. For example, it would not be surprising to have a staff member appointed as FCC Commissioner or Director of NTIA. The
307
Comment
‘CCA’s political clout would be obvious’
5Henry Geller, The Federal Structure for Telecommunications Policy, The Benton Foundation, Washington, DC, 1989, p 26.
CCA model would therefore have the additional beneficial effect of serving as a training ground for those who aspire to other communications policy positions. It would help set a higher standard of excellence for government service in communications policy as a whole. Because the council members will not themselves be given any regulatory authority, the powers and responsibilities of the FCC would remain intact. Communications policy implementation would continue to be the domain of the FCC and Congress. This bright-line distinction should be emphasized when the council is created in order to assure these policy players that the administration has no intention of shifting the established balance of power. A three-person council with a designated chairman has several advantages over a single director. First, it can reflect varied substantive emphasis and different interpersonal skills, the combination of which in a collegial body can have a positive synergistic effect. Collegiality would also force the members to debate issues vigorously among themselves. A council form of government also lessens the possibility that the negative perception of a ‘communications czar’ will arise. The chairman will be first among equals. of course, but, with two other strong individuals sitting at the table, it will be more difficult for the chairman to aggregate power merely by virtue of that designation.
The CCA as an institution. and the chairman as its representative, would be highly visible on the national and international stage. This is particularly important since foreign governments are perpetually confused as to who is authorized to speak for the administration on communications policymaking issues. Equally important. the chairman and other members would have direct access to the president. CCA’s political clout would be obvious, thus facilitating its assumption of a leading role in Executive Branch communications policy formulation. CCA members would be able to interact as peers with leadership in other EOP units. They would be able to draw on the expertise of these units and offer expertise in return: international trade p&icy in telecommunications, for example, might be discussed with USTR, satellite policy with OST and telephone industry restructuring with the CEA. The benefits of such collaborations are potentially exciting. Under the current organizational structure, this promise cannot be tapped because there is no communications policy unit within the Executive Branch that corresponds to any of the various EOP units. Henry Geller, NTIA’s first director, recently wrote, ‘The Information Age, with its global competition. demands that we put our policy house in order.” There is no better way to express the urgency of this critical challenge.
TELECOMMUNICATIONS
POLICY
December
1989