Wheeler Seen As FCC Chairman Who’s Not Afraid to Step on Toes

FCC officials we interviewed said much the same thing, that Wheeler has been willing to cut some deals so far, but that may get less likely as the commission takes on big issues that are more important to him. Commissioners are complaining that too many orders are being handled by staff on delegated authority, agency officials said.

Before the January FCC meeting, for example, commission Republicans were able to negotiate a watered-down, less regulatory policy statement on text-to-911, and all five commissioners (CD Jan 31 p1) voted to approve the statement and a further NPRM. But at the December meeting, Wheeler pushed forward orders seeking comment on cellphone use on commercial flights and on rules aimed at making 911 more reliable, which led to dissents from Pai and O'Rielly. “This was a missed opportunity,” O'Rielly said at the time of the 911 rules. “It was well within our grasp to produce a 5-0 vote."

Wheeler appears to have abandoned the idea of a unanimous vote for his plan to change attribution rules for joint sales agreements, several attorneys told us. The details of the proposed rule changes weren’t shared with the Republican commissioner offices (CD Feb 12 p1) until they were revealed to the public with a blog post from Wheeler on the FCC website (CD March 6 p7), and a Media Bureau public notice issued Wednesday over objections from Pai and O'Rielly (CD March 13 p16) is also seen as coming from Wheeler, these lawyers said. “If the majority of the Commission wanted to turn the screws still further on broadcasters, the substance” of the notice could have been put before the commission at the upcoming March 31 meeting, Pai said in a statement. “Instead, our policy has been changed without a Commission vote. That’s not the way we should do business.” One broadcast industry attorney said that sector feels it has been under attack under Wheeler.

"It’s going to get much harder,” said a former FCC legal advisor who represents broadcast clients. “Wheeler is not afraid of a 3-2 vote. ... I think there'll be less deal making than in the past.”

'Comfortable in His Own Skin’

"There are two things to know about Tom Wheeler,” said Andrew Schwartzman, a long-time public interest lawyer and lecturer in law at Georgetown University. “First, he really knows the area. Second, he is comfortable in his own skin. Those characteristics give him the capacity to cut deals when he can, and to withstand the heat from for taking a controversial stand if needs be.”

"In an ideal world, every FCC chair would prefer all votes be 5-0 and there have more of them than is commonly appreciated,” said Jeff Silva, analyst at Medley Global Advisors. “In his strong desire get things done as FCC chairman and in light of his pragmatic political mindset, I tend to doubt Tom Wheeler will necessarily be deterred by the prospect of 3-2 votes if it means he can push his agenda forward. I don’t think Wheeler is one to let the perfect be the enemy of the good.” Silva warned that the political landscape could potentially get more difficult for Wheeler if Republicans gain control of the Senate in the mid-term elections. “Under such a scenario, not only could 3-2 votes become more common but Wheeler’s two Democratic colleagues, Commissioners Mignon Clyburn and Jessica Rosenworcel, would ostensibly gain more leverage,” he said. “Such challenges, though, tend to play to Wheeler’s strengths with respect to his knack for finding common ground and fondness for the art of the deal. Still, there can be no mistaking that his toughest challenges lie ahead."

"Chairman Wheeler is good about keeping regular meetings with his fellow commissioners,” said a former FCC official. “He is affable in those meetings and it looks as though he has tried to have a couple of monthly open meetings where he has been able to garner of unanimous votes. At the same time, however, he has also made it clear that he is not afraid to have 3-2 party line votes. So on the more contentious items, look for him to first try to corral the votes of his fellow Democrats before reaching out to the Republican commissioners.”

"Tom is not going to go out and purposely pick a fight,” said an industry lawyer who has known Wheeler since his years as president of the CTIA. “He is pretty confident in what he wants and where he wants to come out. Any commissioner that wants to help him with the end result, as long as they can agree on the end result, he’s going to be more willing to be accommodating to the extent that he can. But he knows where he wants to go.” The lawyer said Wheeler will always prefer agreement but won’t be afraid to “agree to disagree” with other commissioners.

Criticism on Other Fronts

Like all chairmen, Wheeler is criticized on other fronts as well. Staff in other eighth-floor offices complain of not being briefed by the chairman’s office on issues they were being lobbied on, or of learning about upcoming commission policies in trade publications, several attorneys said. The issue is exacerbated for the Republican commissioners who are “shut out” one communications attorney said.

Wheeler “doesn’t seem to bring [other commissioners] in on upcoming policies as often as some past chairmen did,” one former eighth-floor official told us. Wheeler’s insularity extends sometimes to industry, another former eighth-floor official said. Previous chairmen have occasionally floated prospective rule changes with companies affected by it, and industry perception is that Wheeler is less likely to do so, the official said. The effect of that sort of environment on lobbying issues to the FCC has varied in the past, Pillsbury communications attorney John Hane said. “It may be great for you that nobody’s talking, it could be bad for you. It depends on the issue.”

On the flip side, Wheeler is very engaged with his own staff, a consumer electronics official said. Wheeler is more informed on a wider variety of issues than past chairmen because of his close relationship with his staff, the official said. Consolidating authority in his own office is “not at all strange” for a “strong chairman,” a cable attorney said. Chairmen tend to keep things closer to the vest the longer they're in office, a former eighth-floor official said. Wheeler may have simply arrived at that point sooner because of his long experience, the official suggested.

"I don’t think that we should ever get ourselves into the mindset that there’s anything sacrosanct about a 5-0 vote,” said former Commissioner Michael Copps, interim chairman during early 2009. What counts is “getting good policy enacted,” even if that’s by a 3-2 vote, he said. Unanimous votes are often a sign that the agency is just putting problems off, Copps said. “We don’t have to have a unanimous hallelujah chorus 5-0 vote for every item the FCC passes, because that’s a prescription for continuing purgatory” that can “hamper the commission,” he said. “Unanimity is not the friend of real progress."

"Wheeler doesn’t just talk about being data-driven; he actually is,” said Blair Levin, executive director of the Gig.U initiative to connect communities near universities with high-speed broadband. On several occasions, “certain staff was using sound bites instead of data,” and Wheeler’s leadership told them, “no, we don’t really care about that; what does the data tell us?” said Levin. Staff finds such clear direction from Wheeler “very helpful” and the FCC staff appreciates that, he said. It’s also clear that Wheeler will take the short-term hit for delay to get the “long term benefit of a smarter action,” Levin said.

The first three to six months are “not necessarily an accurate predictor of a full term,” Levin said. So many dynamics of the first few months aren’t repeated later on, he said. “You're starting things -- you're not ending things.” Observers don’t know if Wheeler is really willing to cut deals yet because a lot of these proceedings -- like the IP transition trials and the E-rate revamp -- are brand new, Levin said.

Wheeler has taken a lot of actions that have been well received throughout industry. “We're delighted he directed staff to explore alternatives to the [quantile regression analysis] and we're encouraged with the reception our alternative regulation plan for rate-of-return carriers has received in the Wireline Competition Bureau and his office,” said Independent Telephone and Telecommunications Alliance President Genny Morelli by email. “On the video side, the item he recently circulated addressing broadcasters’ collusive behavior and his willingness to explore what the Commission can do to fix the current broken retransmission consent process are critical to us.” That order may get a 3-2 vote (CD March 10 p2).

"Chairman Wheeler doesn’t appear to be shying away from 3-2 votes, when necessary,” said Wiltshire Grannis telecom attorney John Nakahata, chief of staff to Chairman William Kennard in the late 1990s. “But he does seem to be sure to be reaching out to other commissioners and to give them credit for their ideas and contributions. He also has been practical: Jettisoning the quantile regression formula is a good example of being willing to reassess where necessary and make corrections where appropriate.”

Contrast With Predecessor

Wheeler is much more “pragmatic and a realist” than former Chairman Julius Genachowski was, Levin said. Wheeler has brought in “people who will look at him and say, ‘Tom, you're wrong,’ and that’s a very important character trait for a leader” -- and not something Genachowski was known for, Levin said. Levin also finds Wheeler to be acting “much faster” than Genachowski. “There’s a lot more action in terms of actual proceedings,” said Levin, who worked on the National Broadband Plan under Genachowski. The plan called for action on the IP transition years ago, and yet “nothing happened until January 2014,” he said.

Wheeler brings with him a “professionalism that has largely been absent from the commission in the last couple years,” said Phoenix Center President Larry Spiwak. Wheeler has shown the agency is willing to deregulate, Spiwak said. “It shows tremendous amount of political courage for an agency to say ‘I will show where we may not be relevant anymore,'” while saying it would fix any problems that occur, he said. Wheeler has also done a “great job” in outlining the social contract, Spiwak said. Wheeler’s IP transition order “was very, very thoughtfully drafted,” which is “unusual” given what “you've seen from the commission in the last couple of years,” he said.

The FCC under Genachowski didn’t do such a good job at drafting orders in such a thoughtful way, Spiwak said. “Every administration is going to bring its ideological issues with it, but to be honest, Chairman Genachowski was not a communications lawyer, and he didn’t bring in communications lawyers with him in senior positions and I think that was reflected in the way the commission draft its orders,” he said. “It does take some institutional knowledge to be able to do this correctly."

Differences Among Other Commissioners

There have been differences between other commissioners. Pai has disagreed sharply with Commissioner Mignon Clyburn over the issue of the critical information needs studies. An op-ed written by Pai attacking the studies was seen as uncollegial by some on both sides of the CIN issue (CD Feb 13 p1), because the studies were strongly supported by Clyburn.

The field test of the studies was implemented during Clyburn’s interim chairmanship and slated to take place in Columbia, S.C. (CD Nov 5 p11), where Clyburn lived, worked as a South Carolina Public Service Commissioner, and in her father, Democratic Rep. James Clyburn’s, district. Public interest supporters of the studies characterized Pai’s attack as a repetition of “talking points” used by Republicans on the House Communications Subcommittee (CD Feb 13 p1), and Wheeler cancelled the studies after a letter from House Republicans (CD March 3 p1).

"There are times when a unanimous vote is valuable, and times when it’s not, or even harmful because of the compromises required,” said Kevin Werbach, professor at University of Pennsylvania’s Wharton School and a former member of the Obama administration’s FCC transition team. “For example, in the recent IP Transition item, getting all five Commissioners on board was important as a signal, both about the issue and Chairman Wheeler,” said Werbach by email. “It was a reasonable judgment that whatever Wheeler had to give up in order to get Commissioners Pai and O'Rielly on board wouldn’t stand in the way of his long-term objectives. That’s not always the case.” Wheeler has clear goals he wants to accomplish as chairman, Werbach said. “You don’t do that by charging into unwinnable battles, but you also don’t do it by trying so hard for consensus in every case that you seem weak or unprincipled. There’s no surer way to invite threats to dissent."

"All of this is consistent with what people said about Wheeler before he started, that he would try to work with everyone but would not back away from the big decision,” said Public Knowledge Senior Vice President Harold Feld. “I will point out that Republican insistence on negotiating as a block on every issue has contributed to any ‘partisan divide’ people are seeing. The rise of 3-2 votes is a direct result of the absolute death of 4-1 votes or even 3-2 votes with a dissent from one Democrat and one Republican, used to be common.”

Feld said commissioners in the minority used to be more willing to partially dissent but still vote for the bulk of an order. “Minority party commissioners used to be much more willing to vote for an order they might oppose on ideological grounds, but be willing to trade for concrete concessions on real issues that mattered to them,” he said. “For example, former Commissioner [Jonathan] Adelstein voted to approve the Comcast/Adelphia/Time Warner transaction in exchange for a commitment to have proceedings to reform leased access and program access rules. Copps and Adelstein voted to approve the order reclassifying DSL as a Title I service in exchange for the net neutrality principles.”