Prison Calling Likely a Top Focus of Clyburn if Named Interim Chair

As interim chair of the FCC, Commissioner Mignon Clyburn would likely take on a number of issues, starting with her big issue of late, prison calling, FCC and industry officials said last week. Another big issue for Clyburn has been 700 MHz interoperability, but how much she would be able to do on that with a 2-1 commission is unclear. A former top FCC official said Clyburn’s staff should already be looking around for a few issues on which she can make her mark as the first woman to head the agency.

At week’s end, Tom Wheeler remained the presumptive next chairman of the commission, despite a full court press by some public interest groups and a Senate letter endorsing the candidacy of Commissioner Jessica Rosenworcel (CD March 28 p1), the officials said. They said that, by bringing concerns out in the open, opponents of Wheeler may have ultimately strengthened his hand. “The cards are on the table,” said a former Senate staffer and industry lobbyist. “In the long run it has actually advantaged Tom."

Clyburn, whose father is Congressional Black Caucus Chairman James Clyburn, D-S.C., is still viewed as likely interim chairman as the senior commissioner, officials said. One wireline industry lobbyist said Rosenworcel also emerges stronger after the Senate letter as a likely successor to Wheeler or anyone else the White House names, if he or she does not stay until the end of the administration. Even as interim chair, Clyburn gets her portrait on the wall of former chairman outside the commission chambers.

As interim chairman at the start of the Obama administration, from January to June 2009, Michael Copps oversaw the DTV transition and focused on staff morale at the agency, say longtime FCC watchers. The FCC also launched a broadband rulemaking, prepared a lengthy report on rural broadband in conjunction with the Department of Agriculture and approved such items as a one-day wireline-to-wireless porting requirement. Under James Quello, interim chairman for 11 months in 1993, the FCC implemented parts of the Cable Television Consumer Protection and Competition Act of 1992 and completed the report and order on PCS spectrum, leading to a key early spectrum auction in 1994.

"It’s not clear that there will be an interim chair or, if there is, who would serve in that capacity,” said David Honig, executive director of the Minority Media and Telecommunications Council (MMTC). “If Commissioner Clyburn becomes interim chair, the first issue to consider is whether the White House would encourage her to govern in the manner of a permanent chair, as Chairman Robert E. Lee and Chairman James Quello did; or not make major decisions or commence major initiatives."

A former FCC official told us Clyburn makes sense as interim chair, given that no nomination has yet been put forward and that process takes a while. Interim chairs “typically don’t take on big new policies,” she said, but rather deal with things that have deadlines or that have to be done. The prison payphone issue is likely to mature in the next few months, she said, with plenty of comments already filed (CD March 26 p4). “That’s been a really central issue for Commissioner Clyburn -- she’s really spearheaded that proceeding,” the former official said. Although not of the magnitude of something like the incentive auctions, it’s “very important” and it could “realistically get done by an acting chairman, and I know it’s very important to her, and to the people who are affected by it."

Clyburn has repeatedly raised concerns about the importance of 700 MHz interoperability (CD Jan 11 p1), but even industry supporters say she may not be able to wrap up a vote on that issue with a three-member commission -- Clyburn, Rosenworcel and Commissioner Ajit Pai. “It’s too big” to take on as interim chair, said a former eighth-floor official.

Honig said if Clyburn is given the green light to take on larger issues, she would likely have an aggressive agenda. “My sense is that she would be especially focused on universal service and its role in closing the digital divide, on universal broadband adoption, on federal/state relations … and on entrepreneurship opportunities for women, minority and small businesses in media, telecom and high tech companies,” he said. “Another issue arising imminently is prison payphone rates: Commissioner Clyburn has displayed profound moral leadership in securing justice for inmates for their families."

Medley Global Advisors analyst Jeffrey Silva thinks Clyburn would be “a terrific and effective steward of the transition,” he said. “My sense is major initiatives will at once continue to progress but could remain in somewhat of a holding pattern out of deference to the new incoming chairman who will want to put his/her imprimatur on such matters."

"I would love it if the Administration gives her a green light to move forward with IP Transition issues,” said economist Joseph Gillan of Gillan Associates, who thinks Clyburn will become interim chair. “But I assume that only the front-burner issues (in particular the spectrum auction) will take the highest priority because nobody wants it to fail on their watch."

Clyburn’s focus is on consumers, especially those who are most vulnerable, as well as on small businesses, said Anna-Maria Kovacs, visiting senior policy scholar at Georgetown University’s Center for Business and Public Policy. Clyburn has also worked “tirelessly” on broadband availability and adoption, Kovacs said. “Making the IP-transition consumer-friendly and freeing up spectrum for wireless-broadband have been key priorities for her."

"I think she will want to avoid stealing the thunder of a new chair, so she will be most interested in keeping the trains running on time and delivering an effective agency to the new chair,” said public interest lawyer Andrew Schwartzman. “She would probably want to move broadcast ownership if Chairman Genachowski leaves it behind. Another media item she might want to move is the new docket on foreign investment. I am quite sure that she would like to do something about prison pay phones."

"There may be a significant difference in the actions of an ‘interim chair’ and a ‘really interim chair.’ In other words, if Commissioner Clyburn becomes interim chair, the way she approaches the job may depend on how long she foresees holding the job,” said Randolph May, president of the Free State Foundation. “In any event, I hope she, or anyone else in that position, focuses foremost on keeping the incentive auction proceeding moving forward on a timely basis and not trying to impose a few new regulations here or there. I often disagreed with Commissioner Copps, but I think he deserves much credit for single-mindedly moving the DTV transition forward when he served as chair. Likewise, I often disagree with Commissioner Clyburn. But she would deserve credit if she focused on moving forward the spectrum auction."

Industry attorneys said they don’t expect the FCC to move many high-profile media items before Genachowski leaves office. Moreover, any interim FCC chair would probably not take on a major rulemaking, they said. A spokeswoman for the FCC’s Media Bureau declined to comment. “My rule of thumb generally is if it can slow down at the FCC, it will,” said Charles Naftalin, a partner at Holland and Knight who represents broadcasters and local exchange carriers.

Resolution of higher-profile issues such as the FCC’s media ownership proceeding, its policy toward indecency on broadcast TV and the way TV stations are treated in the reverse incentive spectrum auction will all probably have to wait for the new leadership team to be confirmed, industry attorneys said. “Most of the big issues are likely to be delayed given the exit,” said an industry attorney who follows media issues. “I'm not sure much in the major issue category will be done before the new person is in charge,” the attorney said.

Lower-profile items may move more quickly, attorneys said. The Communications and Video Accessibility Act (CVAA) has some strict deadlines for when the FCC is to propose and adopt new rules and it appears FCC staff is working to meet those deadlines, attorneys said. “Media ownership is also statutory but nobody seems to care,” one attorney said. “In the CVAA realm, they seem to be taking those deadlines very seriously.”

One aspect holding up the FCC’s review of its media ownership rules is the pause in that proceeding while the MMTC works on a study on how allowing cross-ownership of newspapers and broadcast assets would affect minority ownership (CD Feb 27 p1). MMTC estimated it would take eight weeks to complete the study and that schedule still holds, said Honig.

Anything that’s already on circulation could move quickly, a communications attorney said. And even some items that have been worked up by the Media Bureau could move soon too, the person said. An NPRM to implement some of the set-top box compatibility requirements of the statute could be coming soon, the attorney said.

Those anxious to know whether the FCC’s Media Bureau will provide any guidance on its CableCARD rules after aspects of them were tossed by a federal appeals court earlier this year may have to continue to wait, an industry attorney said. “The court case is recent but the underlying rules are almost 10 years old, so it’s hard to see what pressure there will be to do anything quickly,” the attorney said. That said, Charter’s CableCARD waiver request could provide an impetus, the lawyer acknowledged. “It would be a strange result if they did one without the other. If they intend to do something on the waiver request, that could be the trigger.”, Matthew Schwartz, Josh Wein