Wheeler Bucking Tradition in Pursuing Active Agenda Following 'Change' Election

FCC officials indicated Tuesday the BDS vote was still on for Thursday, though they also said that may not be the last word after key GOP lawmakers called for a regulatory freeze (see 1611150052).

Wheeler likely will have a majority only through the end of the year, with Democrat Jessica Rosenworcel not expected to be confirmed to another term and forced to leave the commission when Congress adjourns sine die. So he has little time to push forward anything that won’t get bipartisan support, agency and industry officials said. Still looming is a possible vote on set-top box rules (see 1611100050).

In the final months of Democrat William Kennard’s chairmanship, the last time Republicans took over from Democrats, the FCC mostly acted on items on which there was broad agreement.

The commission held a meeting Nov. 9, 2000, two days after the election when the outcome was still in doubt, though Republican George W. Bush eventually beat Democrat Al Gore. The FCC approved a report and order addressing the agency’s auction authority, which had support of all five commissioners. Also 5-0 in both cases, the commission approved an NPRM proposing a revamp of the service quality information that price cap, or larger, local phone companies report to the FCC and eliminated regulations on the development of technical standards and certification procedures for telecom equipment, privatizing the process.

Later in November 2000, the commission approved an order addressing satellite spectrum, with approval of all five commissioners. The Kennard FCC approved other items as well, including an NPRM on software-defined radio at the Dec. 7, 2000, meeting, but no items on which commissioners were sharply divided, as they are on BDS and set tops.

Martin's Exit

Eight years later, Republican Chairman Kevin Martin presided over a commissioner meeting on Nov. 4, 2008, Election Day. It was the last major meeting under Martin. Incoming Democratic leaders of the House and Senate Commerce committees wrote Martin in mid-December asking him to defer action on anything but the pending DTV transition in his remaining time as chairman (see 0812150115).

Martin canceled the Dec. 23, 2008, meeting though the agency held a mostly pro forma conference call meeting on Dec. 30. That day, Martin held a call with reporters to say he had given up any proposals to make even limited changes to intercarrier compensation or universal service rules (see 0812310146). FCC members' January 2009 meeting, the last under Martin, featured updates from senior staff with no votes on any items.

There are good reasons why lame-duck chairmen back away from contested decisions, said Daniel Lyons, associate professor at Boston College Law School. “Even if Chairman Wheeler passes set-top box reform, BDS regulation, or other big-ticket items still on his agenda by a 3-2 vote, the incoming agency can overturn that vote upon motion for reconsideration, or it can prevent the rules from taking effect by refusing to publish them in the Federal Register,” Lyons said. “Any such effort would be subject to the Congressional Review Act, which allows Congress to invalidate significant agency rulemaking … by a quick majority vote if the incoming president also approves.” In 2001, the incoming Bush administration used CRA to invalidate a Labor Department ergonomics rule that the Clinton administration passed on its way out the door, said Lyons, also a visiting fellow at the American Enterprise Institute.

"Chairman Wheeler's political apostasy knows no bounds,” said Adonis Hoffman, chairman of the for-profit Business in the Public Interest. “He should focus on finishing the incentive auction and turn his attention to restoring the morale and integrity of the FCC staff as the independent expert agency of record. Whether through his own fault or not, both of those have suffered for the last three years.” Wheeler should follow the example of President Barack Obama “who is going out gracefully, cooperatively and with a lot of class,” Hoffman told us. “The Wheeler FCC era is effectively over, and it is time to acknowledge that."

“I think President Obama has set a good tone for a smooth transition,” said Mark Jamison, also of AEI and director of telecom studies at the University of Florida. “It would make sense to me for all of the government agencies to follow his lead.” Jamison said in a blog post Tuesday the new chairman will have a big job ahead. “Perhaps the most challenging job for the new chairman will be rebuilding the agency’s credibility, pushing back the political opportunists, and mending the commission’s internal divisions,” he wrote. Jamison is a potential Trump pick for FCC commissioner (see 1611140066).

“Given his history, I’d be somewhat surprised if Chairman Wheeler didn’t just go full steam ahead as long as he has three votes," said Randolph May, president of the Free State Foundation. "For divisive items that are going to be decided on divided votes, that not’s necessarily the best way to proceed since they may well be reversed in fairly short order. So, the ‘full steam ahead’ approach is not likely to lead to regulatory stability. Just the opposite."

Don't Stop?

Other industry observers said Wheeler should move forward in his remaining months as chairman on items already teed up for a vote. They questioned the relevance of precedent.

“Wheeler has had to tolerate dissent in order to get anything done,” said Andrew Schwartzman, Georgetown Law Institute for Public Representation senior counselor. Kennard and Martin “operated in a much less partisan environment and were often able to achieve consensus,” he said. “The Wheeler FCC faced much more opposition on Capitol Hill and this filtered into the way in which the commission operated.”

“I think that saying ‘stop everything’ doesn't really apply to stuff that was already in the pipeline and slated for a vote,” said Harold Feld, senior vice president at Public Knowledge. "In 2008, while Kevin Martin honored the request to hold off on any further major decisions, that was in part because the Nov. 4, 2008, meeting was really huge. In addition, the agency has a bunch of unfinished business that should not go into the deep freezer until a new chairman gets confirmed. Life has to go on.”

Fred Campbell, director of Tech Knowledge, said in Forbes Tuesday Wheeler should follow Martin’s example. Campbell was Martin’s Wireless Bureau chief. “One has to wonder what Wheeler is trying to accomplish,” Campbell wrote. “Any party-line vote the agency makes now can be reversed when the new administration takes office with little or no chance of prior court review.”