Wheeler's FCC agenda hits the wall in December

10 November 2016 by Steve Blum
, , , ,

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.