Presidential Election Outcome Could Have Quick FCC Implications
The presidential election, still undecided at our deadline, is likely to create a murky environment for the FCC and Chairman Ajit Pai, at least until all the votes are counted and court cases and recounts resolved, experts said. The situation is reminiscent of 2000, when George W. Bush’s election wasn’t clear for a month. As we went to press, former Vice President Joe Biden was ahead in key swing states, but President Donald Trump still had a potential path to victory.
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In 2000, then-FCC Chairman William Kennard did an admirable job keeping things moving despite uncertainty, but the commission was less politically charged, and he faced an easier task, agency veterans said. Pai is expected to exit early next year. Kennard didn't comment.
Weeks of uncertainty in 2000 didn't affect Kennard’s agenda, said former commissioner and Hudson Institute Senior Fellow Harold Furchtgott-Roth, noting it still approved AOL buying Time Warner: "It wasn't 'pencils down.'" Long-term planning is involved in bringing an item before the commission, and thinking about the December agenda would happen weeks in advance, he said.
If Trump wins, “it will be business as usual," and the Senate will vote on Nathan Simington’s nomination to replace Commissioner Mike O’Rielly, said Phoenix Center President Lawrence Spiwak. Spiwak noted the FCC was less political then, with fewer high-profile public interest groups. He said regardless of the size of the victory, a Biden FCC likely would immediately reengage on net neutrality.
“If Biden wins, it may be hard to argue he has a clear mandate for a new direction,” said Armand Musey, Summit Ridge Group founder. “At the margin, this weakens the argument and that current FCC efforts should stop until Biden team can get organized and appoint a new FCC chair. If Trump ultimately wins, it’s probably business as usual, but without a third Republican vote, they may need to compromise or avoid more controversial issues.”
Under a President Biden, “I would hope the current FCC would practice real self-restraint over the next two months,” said former Commissioner Michael Copps, now at Common Cause. “This administration hasn't been much for self-restraint, but one big reason our democracy is out-of-kilter these days is the failure to understand what a delicate mechanism it is and how easily it can be abused. We have a lot of repairing to do.” The FCC didn't comment.
Technology Policy Institute President Scott Wallsten emailed that the absence of a declared winner could affect some decisions on the margins. Pai "appears to be mostly working through a set of issues that have been teed up for a while," he said. In Pai's shoes, Wallsten said, he would have some variable but not-major December items to include if there's a Biden win vs. ones for a Trump win, with those items "consistent with my preferences and likely to be consistent with an incoming chair's preferences."
Mark Jamison, a University of Florida professor who helped with the Trump transition at the FCC, said Pai will follow the norms. “Regardless of the outcome of the election, Pai will continue to do the work he was appointed to do and in ways prescribed by our laws.”
“With the Senate in GOP hands for the next two years and the White House electoral results up for grabs and likely litigated for weeks, any traditional ‘stand down’ letter coming from Democrats on the Hill to Ajit in the next few days will have less punch than it may have had if the ‘Blue Wave’ had actually materialized,” emailed Cooley’s Robert McDowell. “While Ajit may have already completed most of the big ticket and controversial items on his agenda, for the December meeting at least, he has more political freedom to be ambitious.” The meeting is set for Dec. 10.
“Pai has done an excellent job prioritizing spectrum policies in both the commercial market and within the inter-agency process,” said Shane Tews of the American Enterprise Institute. “Either party should recognize the importance of keeping this momentum going under either party,” she said: “Going back to the days of wanting the government to run network investment policy should be over.”
October was probably Pai’s last big meeting, and Pai will “throttle back regardless of the election results, unless instructed otherwise by the White House, which is very possible,” predicted Fletcher Heald’s Francisco Montero. If Trump is declared the winner, Pai is unlikely to leave before Simington is confirmed and a new chair selected, he said. Democrats will likely seek a slowdown if Biden wins, he said. “Pai would cooperate,” he said: “I don’t think he’s looking to burn bridges. He’s still a young guy.”
The Nov. 18 meeting is likely to go forward as planned, with a vote on the 5.9 GHz band, said Doug Brake, Information Technology and Innovation Foundation director-broadband and spectrum policy. If Trump wins, “everything slows down in the new year,” he said.
Free State Foundation President Randolph May emailed that the likely uncertainty, with the presidency not a done deal for weeks, shouldn’t stop the agency moving on key issues, especially those with bipartisan support: Those include the 5.9 GHz proceeding on the Nov. 18 agenda and the December start of the C-band auction. The FCC should delay the big increase in the Lifeline minimum service standard scheduled to take effect in December (see 2011020065), May suggested.