Wheeler Expected to Push for Approval on Big Remaining Items Before Election

The FCC is expected to have a busy few months before the Nov. 8 election as it finalizes key parts of Chairman Tom Wheeler’s remaining agenda. The set-top box order appears headed for a vote at the Sept. 29 open meeting (see 1608240064). Orders overhauling the special access market and imposing privacy rules on ISPs are expected at commissioners' October meeting, agency and industry officials told us. The growing consensus is Wheeler may have several additional months as chairman if Hillary Clinton wins the presidency (see 1608240057). In reality, the time to move his agenda is limited, the officials said. The FCC didn't comment Friday.

If Donald Trump wins, Wheeler will no longer be chairman as of Jan. 20. Even if he's still chairman, if Jessica Rosenworcel isn’t confirmed for a second term, Wheeler likely would be left with a divided, four-member commission in the new year. Former FCC members said Senate Republicans are unlikely to agree to a deal to approve Rosenworcel if they know that means Wheeler will have no ability to approve orders opposed by Republicans Ajit Pai and Mike O’Rielly.

“By all accounts, Chairman Wheeler’s goal is to complete the proceedings he’s identified as priorities … before the end of the year and it’s reasonable to conclude that a major source of the impetus to do so is the fact that it's uncertain he’ll have any ability to ‘get things done’ after December regardless of who wins the presidential election,” said ITTA President Genny Morelli. Set-tops, business data services (BDS) and ISP privacy top his list, she said.

"Tom is very determined and is grinding ahead undeterred, just like one of his Civil War heroes whom he has studied extensively: General Ulysses S. Grant,” said ex-Commissioner Robert McDowell, now at Wiley Rein. “He won't quit until he gets what he wants, just like Grant battling to take Richmond."

Jeff Chester, executive director of the Center for Digital Democracy, said he hopes Wheeler will move quickly on the privacy rules. “A key part of Chairman Wheeler’s legacy will be whether he is successful ensuring that consumers have a meaningful say about how ISPs can gather and use their data,” Chester said. “His proposal will prevent the erosion of network neutrality in cross device broadband networks. The time to act is now if the public is to receive the safeguards they require." Commissioners “straddling the fence will find themselves increasingly isolated from public support,” Chester said.

“Putting aside politics and who will lead the FCC next, BDS is ripe for reform,” said Steve Berry, president of the Competitive Carriers Association. "The proceeding has been pending for more than 600 weeks." As wireless carriers begin to prepare for next generation deployments including 5G and IoT technologies, he said, "the FCC must act now to repair the broken BDS market to allow competitive carriers, especially those in rural and regional areas, to compete with the largest carriers who have been very bullish on 5G.”

Free Press Policy Director Matt Wood said “it's hard to believe” the Senate majority would try to keep the FCC from doing its job by keeping Rosenworcel from being confirmed. “I guess some Republicans never met a government shutdown they didn't love,” Wood said. "The obstructionists on the Senate and House Commerce committees have been trying for years now to bully the FCC out of policies that are promote competition and protect users' rights. Rarely have they actually bothered to vote on new legislation, preferring to govern instead via empty threats at endless oversight hearings. I suppose we can't expect anything better for these next few months."

Republicans in Congress “want to ensure a 2-2 commission for as long as possible if Clinton wins,” said Harold Feld, senior vice president at Public Knowledge. “Wheeler has every incentive to get the orders up as quickly as possible,” he said. “That gives him negotiating time with the other commissioners if he needs it.” Wheeler will have a full commission until Congress adjourns, sine die, which has to happen by noon EDT Jan. 3 under the 20th Amendment, he said. “Given that Congress has become obsessed with staying in session to avoid interim appointments, I expect Wheeler has until [that time] to get his third vote on any of his key items,” Feld said. One intriguing possibility -- President Barack Obama also could keep Rosenworcel on the commission through a recess appointment, Feld said.

Others said the delay in approving Rosenworcel for another term is tied to a larger battle in the Senate, with both Democrats and Republicans imposing various holds on nominations and legislation (see 1607010047). Harry Reid, D-Nev., in April singled out Commerce Chairman John Thune, R-S.D., for trying to work with Democrats on Rosenworcel’s confirmation. A Thune spokesman didn’t comment Friday.

“This is so simple,” said Berin Szoka, president of TechFreedom: Wheeler could ensure Rosenworcel’s nomination by promising to tender his resignation to the new president, whether Clinton or Trump. People should be outraged Wheeler won’t make that commitment to help out a Democratic colleague, Szoka said. Szoka also agreed the FCC will move quickly on remaining big issues. “I will go one step further and say that it’s very clear he does not care what kind of procedural errors he will commit in rushing,” Szoka said of Wheeler.

“The big three rulemakings reducing competition for internet advertising, business broadband and video content creation don’t pass muster with economic or technical analysis,” said Richard Bennett, free-market blogger and network architect. “We have too many half-baked regulations in the internet economy already, so it’s in the public interest for Congress to exercise adult supervision over an FCC that can’t seem to distinguish the Internet from a phone booth. Wheeler’s stubborn refusal to resign in the event of a Republican victory in November is the one and only reason Congress has not yet reconfirmed Commissioner Rosenworcel. The prospect of a short-staffed commission is a crisis of the chairman's making.”