House Commerce Democrats Expected Seek FCC 'Pencils Down' as Biden Takes Lead

House Commerce Committee Chairman Frank Pallone of New Jersey and other Democratic committee leaders are expected to ask the FCC to stand down work on any further controversial matters during a potential transition from President Donald Trump’s administration if Democratic nominee Joe Biden’s leads hold in several marginal states, communications sector observers told us. No similar call from Senate Commerce Committee Democrats is expected, since the party doesn’t have control of the chamber, and the majority in the next Congress remains in doubt (see 2011050056), lobbyists said.

A “pencils-down” letter from House Commerce Democrats is expected this week, officials and lobbyists said. Some officials had expected the letter Friday afternoon, hours after Biden pulled ahead of Trump in vote counts in Georgia and Pennsylvania. Most news organizations hadn’t called either state Friday, or outstanding presidential vote counts in Arizona and Nevada, where Biden also led. The four states’ combined 53 electoral votes would put Biden over the 270-vote threshold to win the presidency.

House Commerce Democratic leaders want to delay writing FCC Chairman Ajit Pai until vote counts in the four states advance further and provide Biden with a more durable lead, lobbyists said. The lawmakers are also absorbing other election matters, including the Democrats’ likely net loss of House seats after Republicans defied expectations, lobbyists said. No House Commerce incumbents from either party who were seeking reelection lost. The Democrats’ narrowed majority could have implications for telecom policymaking in the next Congress (see 2011040052). House Commerce didn’t comment.

“I wouldn’t be surprised to see” House Commerce Democrats seek a slowdown, but items up for a vote on the FCC’s Nov. 18 meeting agenda have bipartisan support so election results are unlikely to have a major effect, said New Street’s Blair Levin, an FCC alumnus who co-chaired President Barack Obama’s tech transition team. The FCC is to vote on reallocating the 5.9 GHz band for Wi-Fi and cellular vehicle-to-everything, as well as internet-based telecommunications relay service rules, among other items (see 2010270065). “I don’t think [Pai] is planning anything that is seen as deeply partisan” for the commission's Dec. 10 agenda either, Levin said.

House Commerce should seek a commitment from Pai to curtail controversial proceedings “if needed,” but “I just don’t know whether circumstances will warrant that” yet, said Free Press Vice President-Policy Matt Wood. “There seems to be some pretty broad agreement across party lines” on the 5.9 GHz and other items for this month's meeting. The situation “very well may” require a slowdown request, but “everything is still so up in the air” right now, Wood said.

“I hope that the outgoing FCC would follow what is pretty standard protocol” and “press the pause button on anything controversial,” Wood said. He noted then-FCC Chairman Tom Wheeler pulled major items from the FCC’s agenda during the 2016 transition to the Trump administration in response to requests from House and Senate Commerce GOP leaders (see 1611160048). Pai and fellow GOP Commissioner Mike O’Rielly also asked Wheeler then to pull major agenda items (see 1611150052).

FCC Democrats Jessica Rosenworcel and Geoffrey Starks essentially support most items on the Nov. 18 agenda, so it’s not clear whether they will raise similar objections this time, FCC and industry officials said. A vote on a 6 GHz order is expected in December.

“With the presidential race tied up in litigation for what could be weeks, and a likely divided Congress, the effect of a pencils-down letter from congressional Democrats to Chairman Pai is unclear,” former FCC Commissioner Robert McDowell, now at Cooley, told us. “The FCC still has five commissioners, is chartered by Congress to do its job, and historically most of its votes have been” bipartisan. “Don’t necessarily count on [Pai] to merely have a ceremonial" Dec. 10 meeting, McDowell said.

“We are encouraging all five commissioners to move ahead to complete the 5.9 GHz and 6 GHz proceedings,” said New America’s Open Technology Institute Wireless Future Program Director Michael Calabrese: “There is bipartisan agreement at the FCC that consumers should not wait longer than necessary for greatly enhanced Wi-Fi capacity and quality needed as families struggle to work, learn and keep in touch with family and friends from home. ... we do not believe the election result should have any impact on the commission’s efforts to push them over the finish line.”

“Big picture, [Pai] has done all the important items,” said Cowen analyst Paul Gallant. “I don’t think there’s a big, controversial item that he needs to do in the next two months. Whether [the FCC] gets letters or not, and how he responds to them, isn’t that important.”

A pencils-down letter “doesn't mean that the commission has to put a stop to its work entirely,” said R Street Institute Technology and Innovation Policy Fellow Jeffrey Westling. The call from Congress would likely target “complex or controversial topics, which a new majority party will likely overturn or otherwise have a strong interest in reviewing once they take control.” Telecom policymaking “doesn't just stop, and the commission will undoubtedly continue working through the rest of the year and continue voting on items,” he said. Westling expects commissioners to approve the 5.9 GHz order but said Pai may be “more willing to make concessions to get a unanimous vote."

Pai may feel pressure from Trump to continue pursuing a full policy agenda because the president has remained focused on independent agencies, lobbyists said. Trump on Thursday echoed his August withdrawal of O’Rielly’s FCC renomination (see 2008030074) when he replaced Neil Chatterjee as Federal Energy Regulatory Commission chairman, designating new commissioner James Danly to replace him. Trump was reportedly unhappy with Chatterjee’s stance on environmental issues. He had been chairman since 2017 and is a former aide to Senate Majority Leader Mitch McConnell, R-Ky. The White House didn’t comment.