Depending on How Election Goes, Oct. Meeting May Be Pai's Last to Tackle Major Orders
FCC Chairman Ajit Pai is expected to unveil the agenda for the Oct. 27 commissioners’ meeting Monday, and most observers expect it to be busy, with an emphasis on 5G-related items (see 2009290062). Depending on how the Nov. 3 election goes, if precedent holds, it could be Pai’s last to get action on major items, especially if they're at all controversial.
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Four years ago, after Republican Donald Trump won the election, Democratic FCC Chairman Tom Wheeler pulled all major items from the November FCC meeting in response to pressure from congressional Republicans -- backed by GOP commissioners -- citing the transition (see 1611160048). The December meeting had a vote on only one substantial item, on a common standard for the transition from text technology to real-time text (see 1612150048). It's unclear whether the same will happen this year if former Vice President Joe Biden is elected, which puts more stress on the October meeting, officials said.
What happened four years ago was in keeping with precedent. In 2008, then-Chairman Kevin Martin left big items on the table after Barack Obama was elected, and he canceled the December FCC meeting (see 0901160151). There was similar pivot after the 2000 election when the White House also changed hands. The FCC didn’t comment.
If Trump is soundly defeated, Pai is a “pretty reasonable person” and will likely “behave very reasonably,” former FCC Chairman Reed Hundt told us: “He is going to pay attention to the incoming Democratic Congress and the incoming Democratic White House.”
“You ignore them at your peril,” Wheeler said of congressional warnings in an interview. The FCC is an independent agency, “but you are overseen by Congress.”
Others are less sure.
“You’d have to be a wizard to predict what this crowd, both at the White House and the FCC, might do,” said Michael Copps, acting FCC chairman at the start of the Obama administration, now at Common Cause. “If Trump loses, I would hope for restraint, but I’d be crazy to predict restraint in light of all the barn-burning we’ve witnessed since January 2017,” Copps said.
If Biden wins, congressional Democrats will likely instruct Pai to seek votes only on noncontroversial items, said Gigi Sohn, a top aide to Wheeler who's now at the Georgetown Law Institute for Technology Law & Policy. “There isn’t one norm that this administration hasn’t obliterated, so I’m not counting on anything,” she told us.
The “pencils down” tradition is unlikely to deter Pai “if there’s something in the national interest that he thinks needs to get done” in the coming months, said former FCC Chairman Mark Fowler in an interview. As part of Obama’s transition team in 2008, Wheeler helped orchestrate a letter from legislators requesting that Martin not take significant action after that election and was on the receiving end of one himself in 2016.
Mark Jamison, a University of Florida professor who helped on the Trump FCC transition, expects Pai to “keep working for what he believes are the best outcomes for the country and to remain respectful of our system of government.”
After congressional Republicans complained and Pai asked that all items on the November 2016 agenda be withdrawn, “Wheeler decided to stop virtually everything, including merger review and various other proceedings, to essentially show his displeasure,” said Fletcher Heald’s Francisco Montero. Pai likely would “adopt the practice of not undertaking action on complex or controversial issues but would not necessarily adopt Wheeler’s scorched-earth approach of not taking any action and grinding everything to a halt,” he said. Montero agrees that puts lots of pressure on the October meeting.
A chairman has discretion on what to do after the election, said Cooley’s Robert McDowell. “The FCC is an independent agency and can act regardless of who is in the White House or who may arrive there on Jan. 20,” he said. “We live in a different era from traditional political norms … so anything is possible in 2020 and the first three weeks of 2021,” he said: “The risk of pushing through big controversial items on 3-2 votes or bureau actions in the last few days of an administration is that the next chair could pull them back right after taking the gavel.”
Pai is relatively young, said Armand Musey, Summit Ridge Group founder: "He may want to stay with tradition and not take a lot of risks because he does potentially have a significant career ahead."
Pai's “obviously an ambitious person” who will have “tremendous opportunities,” after the chairmanship, Fowler said. After his long tenure as both chairman and commissioner, it's likely Pai has some “FCC fatigue,” Fowler said.
“I would guess that Pai, who is pretty adroit about such things, has scheduled everything that is material to be done by the October meeting,” said New Street’s Blair Levin: “I doubt he has big or controversial things planned for November and December.” The big things to come are the Rural Digital Opportunity Fund and C-band auctions, which don’t require commission votes, he said.
Numerous communications industry watchers noted Pai may face additional pressure because of the FCC’s likely composition after January -- Commissioner Mike O’Rielly said he will leave at year’s end, and many think his replacement’s confirmation won’t be a speedy process. That would leave the FCC at 2-2, or 2-1 if Pai were to step down.