FCC Could Be Hobbled in Early 2017 if Wheeler Stays

(Rob Kunzig/Morning Consult)

The Federal Communications Commission could start out the new year with a partisan 2-2 split after senators went home last week without confirming a Democratic commissioner for a second term at the agency. That deadlock could stymie the progress of big-ticket items, but it wouldn’t completely stop Republicans from getting work done in the early days of the Trump administration.

The interim chairman of the FCC, who is expected to be appointed as soon as President-elect Donald Trump takes office, will have “great latitude to begin work at the agency, even without being able to command a majority vote of the commissioners,” Tom Struble, policy counsel at the free-market think tank TechFreedom, said Monday in an email.

Trump can appoint one of the two sitting FCC Republicans — Ajit Pai or Michael O’Rielly — to act as interim chairman immediately. According to Struble, a Republican-led commission has a lot of power through items passed at bureau level, where the chairman can direct what goes through without a full commission vote.

The agency can approve petitions for spectrum and broadcasting licenses, as well as enforcement actions against companies and individuals, through the agency’s departments without requiring a full commission vote.

The new GOP chairman could also significantly open reviews into petitions from companies and trade organizations that have requested the FCC reconsider past regulations. That would enable the agency to begin the process of altering or reversing existing regulations. The agency would have to vote on final changes or annulments of rules, but Republicans could start the process before they get a majority.

Trump will need to appoint a third commissioner, and that person could also be the next chairman. But that nominee will require Senate confirmation before joining the commission. Meanwhile, Democratic Commissioner Jessica Rosenworcel will be forced to leave in early January. Tom Wheeler, the current chairman is required to step down from the top post on when Trump takes office on Jan. 20, but his term as a commissioner at the agency lasts until June 2018. The other Democrat on the FCC, Mignon Clyburn, has a term that extends until February 2018.

It’s common for FCC chairman to step down at the onset of a new administration, particularly when the president is from an opposing party. But Wheeler is keeping people in the dark. FCC officials on Monday said there are no updates on Wheeler’s plans under the incoming administration. The agency hosts its final open meeting of the year on Thursday, when Wheeler will face reporters’ questions at a press conference following the commission votes.

If Wheeler stays on as a commissioner, the two-two split would likely stop the agency from passing major items like a reversal of the FCC’s 2015 net neutrality rules, but that hurdle would be “very fleeting,” Struble said.  Democrats are “powerless to prevent confirmation of a third Republican commissioner once one is appointed” because of rule changes spearheaded in 2013 by Sen. Harry Reid (D-Nev.) when he was majority leader.

If Wheeler decides to leave the agency early on in 2017, Republicans would have a 2-1 advantage at the FCC and would be able to pass rules as they wish.

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