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After the election, with its butterfly-ballot debacle, Martin joined the battery of Republican lawyers dispatched to Florida to help claim the state's twenty-five electoral votes. Then, with Bush's victory secure, he spent six months helping the new administration form its technology policy.
Martin came to the FCC hoping to expand Americans' electronic access. "We have a long tradition of making sure that everyone's connected and able to take advantage of the communications network," he says. "How do we bring that network into the twenty-first century, so that we're not talking about voice-grade connections but broadband connections?"
Some of Martin's initiatives in this area have received little attention. For example, when the nation's television stations move from analog to digital broadcasting in February, they'll leave behind an empty band of airwaves called the 700-megahertz spectrum. In 2008, the FCC auctioned off chunks of the spectrum to wireless companies, bringing in almost $20 billion for the U.S. treasury. The 700-megahertz spectrum is considered prime property: Signals at those frequencies travel long distances, easily penetrating walls and tree canopies. "These airwaves are going to be the building blocks for companies to create the next generation of wireless broadband services," Martin says.
In an unprecedented move, Martin insisted that one block of the spectrum be sold with two restrictions. First, the winning bidders (the biggest of which was Verizon) must allow their customers to use the handsets of their choosing. "Right now, it's difficult for consumers to switch from one provider to another, because there's a requirement that you buy a new phone," says Leslie Marx '89, an associate professor of economics at Duke's Fuqua School of Business and the FCC's chief economist from 2005 to 2006. "The idea was that this restriction would help reduce switching costs and promote a more competitive market."
Second, clients must be allowed to use whatever software applications they want. For example, Verizon must let customers use Skype to make cheap international calls.
Martin's open-access requirement drew sharp criticism from Republican commissioner Robert McDowell '85. Though Martin and McDowell hail from the same party—and the same alma mater—the two have clashed on some key issues involving business regulation. McDowell, a former telecommunications lobbyist, often advocates for a more hands-off approach from the government.
In the case of the spectrum, McDowell says, the free market was already moving in the right direction. "For a couple of years, the industry had been sinking a lot of money into research and development of how to have more open devices," he says. "My concern was, Let's be careful of the unintended consequences of a mandate like this." McDowell feels vindicated, he says, by what happened in the auction: The smaller, less regulated parts of the spectrum became so attractive to large carriers that "a lot of smaller companies were driven out."
Nonetheless, Martin says he's pleased with the results. Since the auction, he says, companies other than Verizon have moved aggressively toward open access—in part, he believes, because of the FCC's lead. "Before we put that rule in place, the wireless industry was opposed," he says. "They actually used to say it was technologically impossible. Now they've changed course."
Martin has received considerably more attention for his campaign to rid the airwaves of what the law calls indecency. Under his leadership, the FCC has taken its toughest stance ever against suggestive images and four-letter words. A father himself, Martin says he worries not just about sex and profanity on television, but also about violence and junk-food advertising, over which the FCC has less control. His own sons, three-year-old Luke and one-and-a-half-year-old Will, watch little television. Instead, Martin and his wife, former White House aide Catherine Martin, carefully choose DVDs from the library, along with video-on-demand programming. They're partial to Disney classics and children's shows on PBS.
Characteristically, Martin discusses the indecency issue cerebrally—without the rhetorical fire of many like-minded crusaders. "The media can have a real impact on children," he says. "Now, parents certainly are the first line of defense. But I think that you've got to give them additional help in today's media environment." This position has made Martin a hero to social conservatives. "The broadcasters have declared war," says Phil Burress, an anti-pornography and anti-gay-marriage activist who heads the Ohio-based Citizens for Community Values. "Kevin Martin is the general on the side of the parents."
The commission's most famous case, initiated before Martin took the gavel, involved the "wardrobe malfunction" that exposed Janet Jackson's right breast for nine-sixteenths of a second during the 2004 Super Bowl halftime show. After Martin became chair, the FCC approved a $550,000 fine against CBS, noting that the live broadcast contained songs with erotic lyrics and a "highly sexualized performance" by Jackson and Justin Timberlake. Last July, a federal court in Philadelphia vacated the penalty, sending the matter back to the FCC. In November, the commission appealed the ruling to the U.S. Supreme Court, which has yet to grant or deny a hearing.
The Janet Jackson case was emblematic of Martin's get-tough stance—not just on sexual images but also on verbal indecency. With his encouragement, the FCC strengthened its position against fleeting, unscripted expletives, and turned its sights on acclaimed TV shows like NYPD Blue. (Though the police show went off the air in 2005, the agency takes years to resolve indecency complaints.)
Before Martin became chair, the commission acted with restraint, focusing mostly on shock radio, says a legal brief filed by seven former FCC officials, including Reagan-era chair Mark Fowler and Kennedy-era chair Newton Minow. Now, they write, the agency "has embarked on an enforcement program that has all the earmarks of a Victorian crusade." In one case, the agency proposed a $15,000 fine against a San Mateo, California, television station for airing the PBS documentary The Blues: Godfathers and Sons, which explores the relationship between traditional bluesmen and modern-day hip-hop artists. Several of the musicians, along with a former record producer, swear during the documentary. A song title depicting a sexual act also flashes on the screen. The final resolution of the case is still pending.
Martin says the problem is not just what is broadcast, but also when. Stations have more leeway to air racy material after 10 p.m., when children are presumed to be asleep. "It's not that things that are targeted towards adults can't be still explored," he says. "They just need to be shown during later hours." In the case of The Blues, Martin says the California station erred by broadcasting the documentary before 10 p.m. without issuing a language warning.
Still, critics say Martin has gone too far. "I don't think he quite respects where government is interfering with freedom of speech," says former FCC attorney Barbara Esbin J.D. '82, a senior fellow at the libertarian-leaning Progress & Freedom Foundation. "You just scratch your head and cannot believe this content is being the subject of fines."
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