Tag Archives: wheeler

Jumped or pushed, Wheeler falls down the memory hole

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It seems the finger was loaded.

Friday was a holiday for federal employees in the Washington, DC area, but even so, someone was busy updating the Federal Communications Commission’s website. Tom Wheeler, the former chairman of the FCC, is now an unperson, “vaporised” and “effectively erased from existence”, as the Ministry of Truth would describe it. If the Ministry of Truth was actually in the business of describing anything.

As of today, the commission’s leadership page lists only three commissioners – Mignon Clyburn, Michael O’Rielly and caudillo-in-waiting Ajit Pai – and makes no mention of a chair, past, present or future. An org chart dated yesterday but actually posted on Friday shows the same, rump line-up.

Presumably, Wheeler formally submitted his resignation as a commissioner when The Donald was sworn in. At least that’s what he promised to do. If the website was updated by FCC employees, it’s a very safe bet he’s actually done it – career civil servants are not in the habit of deleting political appointees without a clear paper trail.

On the other hand, if the Trump transition’s landing team put on their ninja suits and scurried about changing the locks and hanging new presidential portraits at FCC headquarters, they might also have hacked the website as a preemptive strike to ensure Wheeler’s departure. But, yeah, I doubt that happened.

So the working assumption is that there are two empty slots on the commission, and the chair’s job is vacant as well.

By law, there can be no more than three republicans (or democrats) on the commission at any one time, so the way is clear to pair up a nominee from each party and submit their names to the senate for confirmation. Obama renominated Jessica Rosenworcel, after Wheeler’s refusal to step down sooner blew her chances for confirmation last year, but Trump can name another democrat if he chooses.

Trump’s FCC takes shape, and it looks like a power tool

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The new majority

The Federal Communications Commission will begin the Trump administration with a 2-to-1 majority. Chairman Tom Wheeler finally made his plans public on Thursday, saying he would hand in his resignation as Donald Trump becomes the U.S. president on 20 January 2017. That would leave two republicans – Ajit Pai and Michael O’Rielly – and one democrat, Mignon Clyburn on the commission.

Wheeler’s departure was inevitable. He would have lost his chairman’s gig the minute Trump took office, and his strutting style and big man on campus persona could never be sufficiently deflated to fit within the humble job description of a working commissioner on the minority side.

Either O’Rielly or Pai will take over the chairman’s job, at least on an interim basis, while two new commissioners – one democrat, one republican – are nominated by Trump and confirmed by the U.S. senate. That process might take several months, although if the two nominations are paired then there will be less motivation for partisan games on capitol hill, so a quick decision is also possible.

In the meantime, there will be little standing in the way of republican plans to roll back regulations, such as the classification of broadband as a common carrier, that Wheeler pushed through on party line votes. With the door swinging the other way, his legacy won’t outlast his departure very long. Trump’s advisors, as well as the two current republican commissioners, have all gone on record as favoring a regulatory bonfire, with the net neutrality rules at the top of the list.

O’Rielly said earlier this month that a “priority worth attention is clearing away the existing regulatory underbrush that is choking businesses and diverting resources away from new and improved products, better service, and lower prices for consumers”. Not be outdone, Pai has a simple plan for clearing that brush, promising “to fire up the weed whacker and remove those rules that are holding back investment, innovation, and job creation”.

No lame duck FCC decisions, says Wheeler

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Or better yet, dead stop.

Tom Wheeler is leaving any significant decisions on telecommunications policy to the incoming Trump administration and the new republican majority that will follow on the Federal Communications Commission. The FCC chairman spoke after a very brief open meeting yesterday, saying he has not spoken with anyone from the incoming Trump administration, but he is bowing to pressure from republicans in congress, who want him to walk away from the table now. Wheeler’s answer was okey-dokey and, according to a story in FierceWireless by Colin Gibbs, told reporters that his decision to yank nearly everything off of the FCC’s agenda…

…was obviously a consequence of the requests to avoid action on issues that were deemed controversial during this transition between administrations. Certain of my colleagues identified the items on today’s proposed agenda as controversial and asked they not be considered today. I hope that this doesn’t mean that these issues won’t be quickly addressed after the transfer of leadership from this agency.

In other words, it’ll be up to the next FCC chairman and his or her majority to decide if wholesale broadband facilities and services will be regulated and how rural mobile subsidies will be structured – those were the two biggest issues that were put on hold yesterday. Don’t expect new open access requirements for set top boxes, either. Even the privacy rules adopted last month might yet be withdrawn.

He blamed the controversy on big telecoms companies, saying “all of these matters are so-called controversial, because they are opposed principally by the largest incumbent firms in the sector”.

Wheeler’s surrender might have been coordinated with the lame duck Obama administration, but it was so sudden and so complete that you have wonder if there isn’t a different motive behind it. He’s a successful lobbyist and power broker who operated over the decades with equal skill in republican and democratic administrations. If his goal is to continue that career, then he might have reckoned that he’ll be better positioned if he doesn’t piss off the new boss.

Wheeler surrenders to republicans, cancels today’s FCC agenda

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Unconditional.

The Federal Communications Commission won’t be voting today on price controls and other regulations for wholesale broadband service and facilities. Nor will it address mobile roaming standards, or adopt rules for mobile infrastructure subsidies or set requirements for audio narration of video content for the people with vision impairments. A planned (but not revealed) enforcement action has also been scrapped. All that’s left for commissioners to do today is vote on a Freedom of Information Act request.

Chairman Tom Wheeler was reacting to demands from republican members of congress to back off from making any controversial lame duck decisions before the new administration takes office and installs its own chairman with a voting majority. Maybe overreacting is a better description – that’s how John Thune, the chairman of the senate commerce committee described it when the Morning Consult news site asked him about it.

There’s no question though that the reason for the sudden and rapid retreat was pressure from congressional republicans, who are generally threatening agency heads with a life of eternal oversight hearings if they do anything interesting before Donald Trump takes office. According to the Morning Consult story by Brendon Bordelon

An FCC spokesman confirmed the schedule change was driven by Tuesday’s full-court press from Republicans in Congress urging the FCC to avoid controversial decisions in the wake of last week’s surprise election result.

“In light of the congressional letters we received, we have revised the meeting agenda,” the spokesman told Morning Consult in an email.

Technically, the wholesale broadband regulations are still on the table – the secret table; details haven’t been made public – and could be adopted while Wheeler still has a democratic majority to lean on. But that’s not the way the betting is going. Right now, a bigger priority seems to be to set the stage for the next four years. Assuming the FCC remains in the current deep freeze until January, the big question is whether democratic commissioner Jessica Rosenworcel will get a confirmation vote from the republican senate – there’s a good chance she will if Wheeler resigns quickly enough. If he hangs on, though, she’ll lose her seat at the end of the year.

To drain the telecoms swamp, first stop filling it

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The buzz around the incoming Trump administration’s telecoms policy is centering on Jeffrey Eisenach, a consultant to Verizon and apparently the man in charge of picking key staffers and, ultimately, commissioners at the FCC. He’s also been affiliated with the American Enterprise Institute – a conservative Washington, DC think tank – and in that capacity co-authored a white paper with a number of colleagues there that calls for drastically shrinking the Federal Communications Commission.

The paper is animated by a fear of regulatory overreach resulting from a federal court decision involving – surprise! – Verizon that affirmed that the FCC has broad authority under federal law to, among other things, “promote competition in the local telecommunications market” and “remove barriers to infrastructure investment”. It was that bit of the Communications Act – section 706 – that formed the legal basis for the FCC’s so far successful effort to regulate broadband as a common carrier service.

Broadly speaking, the paper proposes two remedies: rely on market competition among increasingly indistinguishable digital service providers instead of 20th century-style regulation based on outdated analog technology distinctions, and farm out FCC functions to other federal agencies that do similar things.

The problem with both approaches is that true competition – the sort where the classical invisible hand of the market restrains predatory behavior – does not exist in the U.S. telecommunications industry. The telephone, cable television and, ultimately, broadband sectors were built on a foundation of monopoly or near monopoly access to public goods, such as right of ways and spectrum, and protected and nurtured by regulators over the course of a century.

The FCC needs an overhaul. Its secretive decision making process, lobbyist and lawyer-centric culture and willingness to bend to political pressure creates destabilising uncertainty for businesses that rely on telecoms services (as opposed to providers who have the deep pockets and experience to play the Beltway game) and locks the public out of a meaningful role. There are any number of ways to fix it. But letting massive monopoly players do the job themselves, subject only to cursory review by generic bureaucrats, will only suck the digital economy further into the mire of a rent extraction swamp.

Update: Pai can keep FCC seat through 2017

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I made a mistake about FCC terms in this story (click here). FCC commissioners can stay in office for up to two years after their terms expire (until “the expiration of the next session of Congress subsequent to the expiration of said fixed term of office”). That changes Ajit Pai’s position – he’s good through 2017 unless a replacement is appointed – and extends Mignon Clyburn’s and Tom Wheeler’s potential terms through 2019. That changes the chess board a bit, but not the main point of the story: Wheeler is out as chairman in January and must resign before the end of the year if Rosenworcel is to continue as a commissioner.

Wheeler’s FCC agenda hits the wall in December

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If he doesn’t pull the trigger, someone will do it for him.

The Federal Communications Commission will look a lot different come January, as chairman Tom Wheeler either resigns or is shoved aside. With a republican president set to take office, the priority will be to clear enough seats on the five member commission to give the new administration a three-vote majority.

Democrat Jessica Rosenworcel will be out of a job at the end of year, unless the republican-led senate votes to confirm her. Rosenworcel was renominated by president Obama, but senate republicans have delayed a confirmation vote, reportedly because Wheeler hasn’t agreed to resign. Both Wheeler and fellow democrat Mignon Clyburn can stay on the commission through 2019, and giving Rosenworcel a new five year term would lock in a democratic majority for the next three years. Republicans are not going to let that happen.

Ajit Pai, on the other hand, hasn’t been renominated yet. His term expired in June, but the rules allow him to stay on through 2017. He’s been mentioned as a possible replacement for Wheeler, perhaps just on an interim basis while the new administration picks a new chairman. Congressional republicans put his name forward for his first term and he, like Rosenworcel, has performed well, but whether that cred will mean anything to the incoming Trump administration, which would have to renominate him next year, is an open question.

My bet is that Wheeler will resign. If he stays on, it won’t be as chairman – the new president can reassign that job – and being a working commissioner from the minority party would be a huge come down from his current role as America’s Lobbyist-in-Chief. That’ll clear the way for Rosenworcel and give republicans a chance to fill the other two seats, perhaps with Pai returning for a second five year term and perhaps not.

Given current republican opposition, that means that a vote will have to be taken on the FCC’s new set top box rules before the end of year, or those will fade away. New regulations for wholesale broadband service and facilities are up for a now or never vote this month too. There’s not enough time to take up mandatory arbitration clauses in consumer service agreements, as contemplated last month, or to work though the many issues surrounding implementation of the current net neutrality and broadband common carrier rules, such as zero rating. In any event legal challenges will continue well into Trump’s first term and offer a potential path to watering down or scrapping broadband’s common carrier status completely.

On the other hand, there’s bipartisan support for increasing the federal preemption of local zoning and permit rules that impact construction of cell towers and other wireless facilities. If anything, republicans are even more gung ho about that than democrats.

UPDATE: I made a mistake about FCC terms in the first version of this story. FCC commissioners can stay in office for up to two years after their terms expire (until “the expiration of the next session of Congress subsequent to the expiration of said fixed term of office”). That changes Ajit Pai’s position – he’s good through 2017 unless a replacement is appointed – and extends Mignon Clyburn’s and Tom Wheeler’s potential terms through 2019. That changes the chess board a bit, but not the main point of the story: Wheeler is out as chairman in January and must resign before the end of the year if Rosenworcel is to continue as a commissioner. The story above reflects the correction.

Wheeler’s “breeze” blows hot air

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What – me worry?

Fierce Online Video ran a great article by Samantha Bookman comparing a cheerleading editorial in the Wall Street Journal by FCC chairman Tom Wheeler with a much more pessimistic view of future that came from a broad canvassing of Internet experts by Pew Research. According to the article, Wheeler, a former lead lobbyist for both the mobile phone and cable television industries, wrote…

“In the not-too-distant future, wireless communications will connect not just everyone, but everything. When 50 billion inanimate devices are talking to each other (Cisco’s forecast for 2020), information will flow like the breeze among sensors and databases,” he wrote. The FCC chairman also encouraged companies to somehow “push past network legacies” to find new opportunities.

If you want further enlightenment from Wheeler on the free flow of information, sorry, the editorial is hidden behind the WSJ pay wall. I have no objections to pay walls, by the way. The Internet should be a place where writers can make a living. I just think it’s hilarious.

Clearly, his information isn’t flowing “like the breeze”, because the Internet is, and should be, both a business and a place to do business. Which is why his network neutrality proposal is nonsense. Case by case review of network operators’ business practices will, if done honestly, bog down infrastructure deployment and development of new services and content in a perpetual regulatory wrestling match. If, instead, it’s driven by Wheeler’s no lobbyist left behind ethic, it’ll become a contest to write rules that benefit and, in effect, subsidise one particular business model over another. Victory will go to the companies and lobbying fronts with the deepest pockets.

Do you think the FCC chairman has a problem with that?

Don’t start the muni broadband party until FCC chair Wheeler puts it in writing

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Given FCC chairman Tom Wheeler’s tap dancing on net neutrality regulations and his long pedigree as a lobbyist for cable and mobile interests, there’s good reason to carefully parse anything he says. Including what seemed to be pro-muni broadband remarks made last week at the National Cable & Telecommunications Association’s annual show in Los Angeles…

For many parts of the communications sector, there hasn’t been as much competition as consumers and innovation deserve. Given the high fixed costs and consequent scale economies, this isn’t especially surprising. But that makes it all the more important that we knock down public and private barriers to competition and avoid erecting new ones. It is equally important that we encourage competition wherever it is possible.

One place where it may be possible is municipally owned or authorized broadband systems. I understand that the experience with community broadband is mixed, that there have been both successes and failures. But if municipal governments—the same ones that granted cable franchises—want to pursue it, they shouldn’t be inhibited by state laws. I have said before, that I believe the FCC has the power – and I intend to exercise that power – to preempt state laws that ban competition from community broadband.

It’s a fine, populist message, but many states – California included – have laws that restrict or disadvantage municipal broadband projects, without completely banning them. And there’s plenty of weasel room between municipally “owned” and “authorised”.

So far, no one at the FCC has put any meat onto the bones of Wheeler’s stated intention. That’ll come during what will be a lengthy process of reviewing rules regulating telephone service. Wheeler acts like he’s the telecom industry’s lobbyist-in-chief rather than a neutral chair of a federal regulator: it’s too early to start celebrating a muni broadband victory.

FCC chair Wheeler pushes network neutrality regulation

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If he sees a foul, Wheeler is ready to throw a flag.

Tom Wheeler, the new chairman of the FCC, left no doubt today that he intends to enforce network neutrality rules. Speaking at CES, he made it clear that the FCC will play a central role in regulating the relationship between Internet service providers and their customers.

The first question is exactly how much power the FCC has to regulate the way Internet service is delivered. A federal appeals is considering that question now, a lower court having thrown out network neutrality rules – called the open Internet order – previously approved by the FCC. Wheeler believes the authority exists. “We have the capacity and the jurisdiction to intervene”, he said.

“The open Internet order was drafted in a way that encouraged innovation, but said you won’t screw up the operation of the Internet, you won’t act in anti-competitive ways, you won’t act in preferential ways”, he said. “The open Internet order makes it clear that if there are untoward things impacting access to the internet…then the commission should move”.

Something would be untoward – and trigger FCC action – “if it adversely affects the relationship between the network and the people who use it”, Wheeler said. “We need to encourage innovation and keep a watchful eye and be willing to intervene when the network compact is violated”. The network compact being “the relationship between the network and the people who use it”.

He declined to give any specifics of what form that intervention might take, instead saying it was up to the industry to make the first move. “If there’s voluntary activity, the agency doesn’t have much to do, but it can go the other way”.