Clyburn Got Off to Fast Start as Acting Chairwoman, May Have More to Do, FCC Watchers Agree

The Senate Commerce Committee is expected to hold a hearing on Michael O'Rielly, Republican nominee for commissioner, sometime the week of Sept. 16 (CD Aug 30 p10). Tom Wheeler, nominee for chairman, has already had a hearing and been cleared by the committee. Both nominations could be ready to go before the full Senate by the end of September, but when the Senate will act is always difficult to handicap, industry and government officials agree. Many observers expect a vote before the Senate’s Columbus Day recess.

"It’s going to be harder and harder for the Clyburn office to figure out do you move on [as issue] or do you sit on it,” said one FCC official. “Obviously, the big ticket items like the incentive auction order or the spectrum cap order, if Clyburn finds that the Senate is not going to confirm Wheeler in September, then she’s going to have to be in a position to move forward,” said a former eighth-floor adviser. “I think she’s done a good of directing the bureaus to keep working. You've got the pen right now, work toward getting those draft items out as quickly as possible.” Part of Clyburn’s role “is making sure that people at the commission don’t think that they need to stop working,” the source said.

"She is not the type to allow grass to grow under her feet,” a former FCC wireless official said of Clyburn. “She has a lot of energy and enthusiasm and I suspect she'll try to find something else meaningful to get through.”

Clyburn is slated to circulate items for the September meeting on Thursday. Several big-ticket items could still get a vote under Clyburn, though it is unclear how many would get a 3-0 vote and the full support of Republican Commissioner Ajit Pai -- who dissented on the prison calling order -- industry and FCC officials told us.

Among the items is a 700 MHz interoperability mandate, which like prison calling is a key issue for Clyburn. Sources also see an order on the UHF discount -- a loophole that allows station groups to exceed a nominal cap limiting them to coverage of no more than 39 percent of U.S. TV homes by discounting the reach of stations operating in the UHF band -- as a possibility for a vote under Clyburn. FCC officials say a followup order on last year’s derecho storm appears ready to circulate for a commission vote, a possibility for the September meeting. But to the extent that order imposes new regulation on carriers it could face opposition from Pai, agency officials say.

"I think when you're there you should just kind of operate under the assumption that you'll be there for a while and you're the chairman,” said Michael Copps, who served as acting chairman at the beginning of the Obama administration. “Obviously, your world has some constraints, but it also has opportunities and I think Mignon knows as well as anybody how to seize opportunities.” Copps, who now does work on behalf of Common Cause, said as a member of the public interest community he is pleased with what Clyburn has been able to accomplish so far. “I think Mignon is doing a more than an admirable job as acting chairwoman,” he said. “I think she has been proactive on a number of issues and I'm a great believer in proactivity."

"She had the drive and the vision to create an agenda for her interim chairmanship and that has produced fruit,” said former FCC Commissioner Robert McDowell, a visiting fellow at the Hudson Institute. “Interim chairmanships can be very challenging because the acting chair has no definitive timetable and must be careful about what issues they try to tackle in what could be a shorter than expected timeframe. The challenge is having policy initiatives in the hopper that are meaningful but that won’t steal the incoming permanent chair’s thunder."

Clyburn is slated to speak at the Competitive Carriers Association’s annual meeting the week before the FCC’s September meeting. “Interoperability remains one of the highest priorities for CCA and our members,” said CCA President Steve Berry. “We will continue to look for solutions -- whether business or regulatory -- to ensure high-speed mobile broadband services are able to reach all parts of the country, including the most rural. An interoperability solution will unleash new service to many low and moderate income consumers in regional and rural markets. We are excited to have Chairwoman Clyburn, who has long supported the goal of interoperability, speak at our convention next month and look forward to hearing from the acting chairwoman on issues important to competitive carriers."

In general, industry observers gave Clyburn high marks, both when speaking on the record and in background interviews. “Her interim chairmanship is longer than others have been, and that makes it harder for her to be a caretaker,” said Fletcher Heald broadcast attorney Peter Tannenwald. Despite the uncertainty that goes with an interim appointment, Clyburn has kept the agency active, Tannenwald said. “She’s gone to bat for the things she wants to get done,” he said.

The secret to success may be preparation, said former FCC Chairman Richard Wiley, of Wiley Rein. “They planned it real well, and she’s been able to get the things she wanted done,” Wiley said of Clyburn and her staff. “The Clyburn commission is well organized,” he said.

Free State Foundation President Randolph May, a skeptic of regulation, gives Clyburn mostly good marks. “It’s always a somewhat difficult situation when you don’t know how long you will be in a position everyone views as ‘interim,'” he said. “But, so far, I think Chairwoman Clyburn is handling the situation pretty well and with a certain amount of aplomb. As for how she should proceed, as someone who has been a supporter of the Lifeline program, I'd like to see her devote some time and energy to actually getting the commission to adopt some of the reforms that have been proposed to deter the fraud and abuse that exists in the program. For example, I've supported prohibiting real-time distribution of handsets by vendors and requiring vendors to retain proof of eligibility documents. Lifeline is under attack, and Clyburn could help preserve the program in a way that allows it to meet its purpose of connecting up low-income persons if she adopted meaningful measures to deter fraud and waste."

"I actually do not think she is in a difficult position,” said John Windhausen, director of the Schools, Health and Libraries Broadband Coalition and a former Senate staffer. “She has been moving forward on issues that have been fully briefed and teed up for a decision. On other issues, such as E-rate reform, she has done a great job of keeping the momentum going in favor of greater broadband deployment and competition, while setting the table and not pre-judging any outcome that Tom Wheeler will want to decide. She is working in just the same way that Michael Copps did during his acting chairmanship. She deserves some kudos, I think.”

Public Knowledge Senior Vice President Harold Feld said he would add call completion to the list of items Clyburn could still take on. “The pleading cycle on that is complete, and it is a popular item with rural Republicans. The steps the FCC outlined in the NPRM seem fairly straightforward and none of the largest carriers have raised significant objections, although some of the least-cost routers have objected on authority grounds,” Feld said. “Media ownership is so huge and partisan and controversial that it seems likely to wait for Wheeler. Wireless consumer protection issues aren’t really teed up. The public notice to refresh the record on cramming illustrates how many … pro-consumer issues Clyburn might want to act on require some work before they could be ready for prime time.” If she has the time, Clyburn could also focus more on the retransmission fight between CBS and Time Warner Cable, Feld said. “Even putting an aggressive order on retrans reform on circulation, without any expectation that it will get voted, could move the parties forward on negotiation."

Free Press Policy Director Matt Wood also said Clyburn had accomplished much in her short tenure. “We're very pleased with her leadership on the prison phone rates decision,” he said. Wood pointed out that while the commission under Clyburn hadn’t resolved some thornier longer-term issues such as the cross-ownership debate, it’s unrealistic to expect an interim chair to tackle many huge sweeping issues. “She’s done about as much as anyone could expect,” he said. “Anyone who thought they were going to wrap up the incentive auction was asking way too much."

"She’s said more on retrans than some full chairmen who were appointed and approved,” said Tom Larsen, vice president of legal affairs for Mediacom. “She hinted that the commission had the authority to do something, which is more than [former FCC Chairman Julius Genachowski] would do,” he said. “I think she comes from a perspective that is more consumer-driven than policy-driven,” Larsen said. Clyburn may not be done weighing in on retransmission consent, he said: If the TWC/CBS fight lasts beyond the start of the NFL season -- which begins Thursday -- Clyburn “may feel compelled to act,” Larsen said, though he admitted her time in office is likely getting short.

Wood said he believed a vote on the UHF discount is still possible before Clyburn’s term as chair ends, though he said it was more likely if Clyburn sits through two more FCC meetings as chair rather than the one meeting that many predict. “The UHF discount has been crying out for commission attention for almost a decade,” said Preston Padden, a former Disney and Fox Broadcasting executive and head of the Expanding Opportunities for Broadcasters Coalition. “Most people assume an interim chair will tread water, but she’s been very active."

"Chairwoman Clyburn has not only done a remarkable job of keeping the agency running smoothly, but also has, in just a short time, really advanced the ball on key issues,” said NAB Executive Vice President Rick Kaplan, former Wireless Bureau chief and Clyburn chief of staff. “She is bringing transparency to the incentive auction process, brought stakeholders together to tackle the challenge of 700 MHz interoperability, and has shown she is not afraid to take a tough vote when needed. There is no question that she has demonstrated that she, too, would have been a great nominee for chair."

Given her emphasis on social justice, the best thing Clyburn could do while she’s still acting chairwoman would be to declare that shifting more spectrum to consumer use is “the number one social justice issue in technology policy,” said Berin Szoka, president of TechFreedom. “We're facing a spectrum crunch and the FCC has done nothing to open up spectrum since the National Broadband Plan. This hurts anyone with a mobile device, but especially those who rely on their mobile device as their primary form of Internet access -- which disproportionately means minorities and the disadvantaged. The sooner the FCC focuses on clearing spectrum as its top priority, the better."

For Comptel, Clyburn’s remaining time would be best spent finishing the special access mandatory data request that the commission approved in December, said General Counsel Angie Kronenberg. “The Chairwoman’s support for special access reform has been unwavering, and she has generally trumpeted the need for the commission to complete its work in a timely manner,” she said. Yet the commission hasn’t even submitted its filing for Paperwork Reduction Act approval with the Office of Management and Budget yet, said Kronenberg, who previously served as Clyburn’s wireline adviser. “The proceeding has been pending for over eight years, and the next steps needed to reform the regime require the Commission to gather a significant amount of data once it receives OMB approval. The Bureau’s record closed in mid-May, and every day of delay for this data request, is a day that consumers do not have the benefit of lower prices. Chairwoman Clyburn can prioritize this proceeding and help move it along, and we expect that she will do so given her consumer-oriented approach during her time at the Commission.”

"The role of an acting chairman is not to initiate major new policy initiatives,” said Phoenix Center President Lawrence Spiwak. He quoted the words of Clyburn as she took the job and promised to “build on forward momentum,” give the next team a “running start,” and “not to drop the baton.” So far, Spiwak said, Clyburn has done an “exemplary job” keeping the agency running smoothly during the transition. “I fully expect her to continue her efforts so that Tom Wheeler can hit the ground running as soon as he is confirmed."

Clyburn has been “as proactive as she can, given the inherent political and policy constraints” she faces, said David Honig, president of the Minority Media and Telecommunications Council. “She’s already moved several important matters, most notably the public notice on consideration of MWBE [minority and women business enterprise] as a factor in competition to be developed as part of the annual Wireless Competition Report,” he said. “She’s reviewing several other matters that may help define her service. We're very pleased with the way she’s handled her job.”