FCC Staff Still Working Behind Scenes on Auction, Waiting for Wheeler’s Confirmation

Meanwhile, staffers are slated to formally brief commissioners on auction preparations during Thursday’s FCC meeting. Their message is expected to be that, despite a change in leadership at the commission, work on the auction is moving forward as well as could be expected. Wheeler sent a similar message during his June 18 confirmation hearing (CD June 19 p1). “If I am fortunate enough to be confirmed it is my intention to move expeditiously to make spectrum available by auction in multiple bands,” he said.

"There’s only so much that can be done,” said a former FCC wireless official. “At a minimum, the staff will want to have options ready for the incoming chair. That said, no one knows how much or how little time it will take Mr. Wheeler, once he arrives and has the time to dig in, to feel comfortable enough to start making the tough cuts.”

"The key question is to what extent the chairwoman and the commissioners are currently involved in the process,” said a former FCC legal adviser. “If they are getting weekly updates and having significant input, then the process is really moving. If the staff is off on its own, then it’s not clear that much ‘progress’ is being made. Even though sometimes it feels that way, the staff does not have a single vote -- each commissioner has one. So if the commissioners are being let into the process, the commission should be in good shape."

Former Commissioner Michael Copps, the last person to be acting FCC chair before Mignon Clyburn, said Clyburn should feel empowered to act if the Wheeler confirmation process stretches on for too long. “My sense is that the commission should be moving full-speed ahead on developing the rules, as if there were five commissioners on board,” Copps said Tuesday. “When those rules are drafted, the present three-member panel can make a judgment on whether confirmations seems imminent. If they are, then there is benefit in waiting an extra few weeks and have all five voting. But if a confirmation seems distant, then the FCC must move ahead, approve rules, and get on with it.” Too much is at stake for the FCC to wait, especially since the auction is targeted in part to pay for FirstNet, Copps said. “The American people have been waiting far too long for a public safety network,” he said. “We just cannot afford to have all these break-downs and lack of first-responder inter-communications every time a disaster strikes,” he said. “So, yes, it may indeed become necessary for the current commission to act even if it’s at less than full strength. And don’t forget, new commissioners have to get up-to-speed, and other issues and priorities cry out for attention."

Minority Media and Telecommunications Council President David Honig also said Clyburn may be forced to do more if a Wheeler confirmation takes too long. “There’s an unwritten rule that in order to avoid disrespecting the Senate, an acting chair won’t move major, potentially controversial items when the commission’s action could preempt or moot a line of questioning likely to be developed during her successor’s confirmation hearing,” Honig said. “An exception to this unwritten rule arises when the acting chair must take unavoidably controversial action to implement an urgent pre-existing congressional statute or mandate. That explains why Chairman Copps was able to move decisively to start the incentive auctions process. Time was of the essence, and the issue couldn’t wait for Chairman [Julius] Genachowski to be sworn in.” Clyburn is in a similar situation, he said. “To satisfy Congress’ expectation and Chairman Genachowski’s assurance that the auction will take place in 2014, Chairwoman Clyburn must keep the process moving,” Honig said. “She can’t wait for Mr. Wheeler’s swearing in. On the other hand, it’s unlikely that the rules will need to be finalized before Wheeler’s swearing in. So there will still be plenty for Wheeler to do. It will be near the top of a tall pile of action items he'll inherit."

Staff will need time to get rules ready, said a wireless lawyer. “The incentive auction represents one of the larger, more complex projects the FCC has ever undertaken,” the lawyer said. “While the FCC staff continues to work diligently on these issues, we're still several months away from having a set of detailed proposals available for decision by the 8th floor. I have never gotten the sense that any of the FCC staff, or Clyburn for that matter, is holding back on reaching decisions because they are waiting for Wheeler’s arrival. Rather, my sense is that the staff needs the time to work through what are some pretty difficult and challenging issues of implementation and public policy.” FCC staff “will probably need every minute of the three months or so until Wheeler arrives to develop internal consensus on a detailed framework for approaching the auction,” the source said. “They can always modify whatever proposals they develop once Wheeler arrives, but the process of developing an integrated, comprehensive framework for the incentive auction is simply going to take more time than the three months or so that acting Chairwoman Clyburn will have in her current role.”

"In theory, and to some extent in practice, FCC staff should be able to do considerable foundational work on incentive auction rules under acting Chairwoman Clyburn as the Wheeler nomination plays out in the Senate in coming months,” said Jeff Silva, analyst at Medley Global Advisors. “Finding common ground on divisive issues could be another story, however. There could be some game theory at work on the policy front during the leadership transition and well in advance of the actual bidding itself. For example, if major stakeholders assume bidding guidelines will not be finalized until a new chairman is seated, some may not have a strong incentive nor feel pressure to compromise on key issues until that time. As such, with the possibility the FCC could find itself fighting the clock in order to meet its 2014 target, it seems likely completion of the incentive auction rulemaking will be job No. 1 the second the new chairman takes office. You might call it baptism by fire.”

Free State Foundation President Randolph May takes Clyburn “at her word that she’s going to keep the incentive auction process moving forward,” he said. “As a practical matter, I think that what this means is that she should direct the staff to stay on course by preparing well-developed, substantive options papers regarding all the significant issues,” he said. Then, when the FCC again has five commissioners “there will be a basis for the full FCC to move ahead quickly without undue delay,” May added. “Obviously, if there is some unreasonable lengthy delay in getting Wheeler and the … new commissioner on board, which I don’t foresee, then Chairman Clyburn’s role may need to change too."

"I think that everyone is still focused on this and staff[ers] are doing what they can,” said Public Knowledge Senior Vice President Harold Feld. “This is complicated enough to keep everyone busy until fall, when hopefully Wheeler will be confirmed. Frankly, given the complexity and the huge number of decisions that need to be made, I wouldn’t have expected an order to be ready until Q4 even if we had a permanent chair already.”

"The key staff … do not need a lot of guidance from the commission for the vast majority of what they need to do,” said public interest lawyer Andrew Schwartzman.