New Commissioners Expected to Spur FCC Action On Special Access, Other Issues

The way ex-Commissioner Michael Copps sees it, a full complement could give FCC actions more credibility, especially regarding upcoming rules on spectrum auctions. Congress “will feel better if those auction rules are endorsed by five people with a full FCC, rather than had they been endorsed by three, and then two more people come on later,” said Copps, who left the commission at the end of last year and whose term Rosenworcel takes. Copps rattled off a long list of issues he hopes unanimously confirmed commissioners Ajit Pai and Jessica Rosenworcel will help push forward on: Special access reform, waiting in the wings for years; indecency regulation, which will soon be affected by a Supreme Court ruling in the Fox case; and net neutrality, subject of an appeal. And the Organisation for Economic Co-operation and Development ranks the U.S. 12th or 15th in the world for broadband development, depending on what metric is being used, Copps said. With five commissioners, “You're fully up to speed, so it’s time to move along with this stuff,” he said. “The rest of the world’s not going to wait for the United States to get caught up on broadband."

Although more than two commissioners are prohibited from talking together -- an “antiquated” rule that exasperates Copps -- their staffs can converse, and that will bring extra perspective. Ex-Commissioner Deborah Taylor Tate and current Commissioner Mignon Clyburn brought state regulator perspectives; Chairman Julius Genachowski brought previous FCC experience and an extensive background in business and finance; and Rosenworcel, conversant with Capitol Hill issues, “adds an extra dimension,” Copps said. With five commissioners, “I think that leads to more, rather than less, conciliation and collaboration."

If history is any guide, Pai and Rosenworcel can expect to be sworn in within the next several days, industry officials noted. Copps said he was sworn in two or three days after getting confirmed, and expects it will happen for Pai and Rosenworcel this week. It depends on the schedule of the president, who has to sign the confirmation documents, Copps said. New commissioners usually don’t bring their own staff with them, and will borrow some people who are already at the commission, industry officials said. “A lot of chairmen will be responsive to that,” Copps said, noting that detailees from within the agency could see a temporary assignment to the new commissioners of several months or longer.

It’s taken FCC members from a few days to a few weeks in recent years to be sworn in after their nominations were approved by the full Senate. Probably the quickest turnaround was Genachowski, sworn in as chairman four days after confirmation in 2009, a communications lawyer noted. Clyburn and Meredith Baker, whose term ending in 2016 Pai will fill, were both confirmed July 24, 2009, and sworn in at different times several days later, the lawyer noted. Commissioner Robert McDowell was sworn in about six days after the Senate confirmed him.

As Pai and Rosenworcel both have long FCC and Washington experience, there should be a very shallow learning curve, industry officials said. Rosenworcel’s connection to Senate Commerce Committee Chairman Jay Rockefeller, D-W.Va., means she'll probably be more sensitive to rural issues, said Medley Global Advisors analyst Jeffrey Silva, who’s known her since 2009. Her background doesn’t necessarily indicate what she’s going to do, given her new decision-making role is completely different from the advisory role she’s held in the past, he said. “She’s going to give it her own flavor,” he said. “I doubt it will be a carbon copy of either one, but I think it will draw on each."

Rosenworcel’s experience on the Hill could possibly help ease disagreement around satellite, broadcast and other spectrum use, said independent analyst Tim Farrar. “There has been a little tension, perhaps, between the FCC and Congress over the direction over which they take the spectrum issues.” For instance, a provision in spectrum incentive auction law orders a U.S. Comptroller study of transmission systems to ensure that use of adjacent spectrum won’t interfere with the systems. The provision appears to be directed toward the LightSquared issue, Silva said. “That’s treading on FCC’s turf.” Given Rosenworcel’s contacts and support within Congress, “perhaps some of those areas where there seems to be tension … those issues might be smoothed over,” Farrar said.

"Ajit coming from Kansas and Jessica coming from Rockefeller’s office are both taken as good signs by the rural industry, but only time will tell how they will fall on the issues that are important to us,” said analyst Cassandra Heyne of JSI Capital, which represents rural independent telcos. “I am mostly just looking forward to a fresh perspective … some of Genachowski and Clyburn’s perspectives (and their catch-phrases, like ‘broadband is a necessity, not a luxury') are getting really old.” The additions won’t cause any major change in FCC direction, said Stifel Nicolaus’ David Kaut. “Both seem to have mainstream views, and where the parties disagree, I would expect them to mostly offset each other,” he said. “So the main effect could be to add some complexity to final FCC decision making, with a few added wrinkles on substance.”