In the days since the recent election, many tech, media and telecom industry observers remain unsure of what to expect from the Federal Communications Commission under the Trump administration. Fortunately, there are some breadcrumbs along the path that could provide some guidance: the many recent FCC orders that were adopted by partisan 3-2 votes during the tenure of current FCC Chairman Thomas Wheeler (more than 45 decisions in total). The most contentious among these divided FCC orders could be indicative of which FCC orders are the most vulnerable under a Trump FCC, particularly when one of the two dissenting commissioners in those orders, Commissioner Ajit Pai, is expected to serve as the acting FCC chair until the Trump administration’s nominee for chair is confirmed by the Senate (who might also be Commissioner Pai). Upon inauguration, the new Republican acting chair, and the Republican controlled Congress, will have several options to revisit or undo the more contentious decisions of FCC Chairman Wheeler’s tenure in pursuit of a new policy direction.
First, as an immediate step while other possible actions are pursued, the FCC under its new acting chair can exercise its discretion to not aggressively enforce any rules with which the FCC’s acting chair disagrees. Second, as a more long term initiative, the Trump FCC could initiate new FCC rulemaking proceedings to undo or revise rules already published in the Federal Register and effective. Third, the new Congress could legislatively overturn the FCC’s decisions adopted in the later months of 2016 pursuant to the Congressional Review Act. Notably, Representative Greg Walden (R-OR), Chairman of the House Subcommittee on Communications and Technology, has indicated that the new Congress plans to rely on the Congressional Review Act to overturn recent FCC orders.
Even before inauguration, the election has had an effect on Chairman Wheeler’s efforts to carry out his agenda. Both the House and Senate Republican leadership of the committees with oversight over the FCC have already warned Chairman Wheeler against holding votes on any controversial decisions during the lame duck period. Indeed, shortly after these letters from Congress were sent to the FCC, four controversial items were removed from the FCC’s November open meeting agenda, reportedly due to the failure of Chairman Wheeler to obtain a third vote to proceed with these items.[1]
Looking to the years ahead, by picking Jeffrey Eisenach, Mark Jamison and Roslyn Layton for his FCC “landing” (i.e., transition) team, Trump has signaled a desire to make substantial changes to the FCC’s existing jurisdiction and authority. For example, Mr. Jamison, a visiting fellow at the American Enterprise Institute and a professor and director of the Public Utility Research Center at the University of Florida, has advocated for eliminating most of the FCC’s responsibilities, other than remaining an independent agency for managing spectrum licensing. While we foresee a Republican FCC moving aggressively to review, modify or strike down some of the Wheeler FCC’s most partisan actions, Trump’s selection of Eisenach, Jamison and Layton may signal a strong commitment to substantial changes in the FCC’s policy direction.
For purposes of following this trail of breadcrumbs, this client update discusses the most significant of the recent 45 FCC orders adopted by a partisan 3-2 vote. In each case, we provide a brief summary of the FCC order, the primary reasons the Republican commissioners dissented and a brief analysis of how the decision could be addressed by the Trump FCC. Lastly, we discuss how the FCC’s approach towards enforcement proceedings and its review of mergers and acquisitions may change under the Trump administration.
Summary of Major FCC Decisions Adopted by 3-2 Partisan Votes
Open Internet Order
After several bites at the apple before the U.S. Court of Appeals for the D.C. Circuit, the FCC’s efforts to adopt net neutrality rules eventually survived appellate review through a reclassification of Broadband Internet Access Service (BIAS) as a telecommunications service pursuant to Title II of the Communications Act of 1934 (the Act), subjecting broadband providers to common carrier status. The order sought to protect customers of BIAS providers by prohibiting blocking, throttling and other discriminatory practices.
Dissent Rationale by Republican Commissioners: Both Republican commissioners described the Open Internet Order as overreaching government regulation that exceeded the FCC’s authority. Commission Pai said he would scrap the order’s net neutrality regulations in their entirety, describing them as “intrusive government regulations that won’t work to solve a problem that doesn’t exist using legal authority the FCC doesn’t have[.]” Specifically, the commissioners denounced the Title II reclassification and expressed alarm at the full panoply of new regulatory burdens on BIAS providers that could potentially ensue, such as rate regulation, regulation of interconnection points and universal service fund contributions. Thus, even though the Open Internet Order exercised “forbearance” from imposing many of Title II’s obligations on BIAS providers, the Republican commissioners argued that the reclassification precedent was itself harmful by providing the legal basis for more extensive future regulation...
