Policy

Wheeler Era Draws to Close

FCC chairman is exiting agency with mixed, threatened legacy 12/19/2016 8:00 AM Eastern
Outgoing FCC chairman Tom Wheeler
TakeAway

It’s looking likely that incoming Republicans will try to undo much of what outgoing FCC chairman Tom Wheeler has achieved in his tenure atop the agency.

WASHINGTON — Chairman Tom Wheeler declined to predict the FCC’s future under a new administration, pointing out that he doesn’t have a crystal ball.

 

Perhaps, but the makeup of the agency, the Federal Communications Commission, got clearer with his announcement that he had tendered his resignation to the president effective Inauguration Day, Jan. 20. The signals are clear that Republicans want to undo much of Wheeler’s legacy.

 

With Democratic commissioner Jessica Rosenworcel failing to get a Senate floor vote on her renomination, barring some miracle, she will be leaving by the end of the year or briefly thereafter. Lack of clarity about Wheeler’s exit was cited for Rosenworcel’s failure to get that vote. But Wheeler insisted he had made it clear he would hold with tradition and leave by Inauguration Day. He suggested it was because the commission would initially be 2-2 with Rosenworcel reinstalled that Republicans balked at voting her renomination, particularly since he had said last week he would leave the same day she got voted.

 

WHEN WHEELER MET TRUMP TEAM

Wheeler confirmed he had met at least twice with Donald Trump’s FCC transition team and promised to help with a smooth transition, pointing out he knew something about that process — he led the FCC transition team for the Obama administration.

 

As of Jan. 20, the Republicans will have a 2-1 majority (with Mignon Clyburn the remaining Democrat) and President Trump will get to pick two new commissioners, a Democrat and a Republican. Clyburn could slow things down in the interim by not showing up to public meetings. The FCC needs a quorum to vote, but the chairman could vote items on circulation, which would not need her vote.

 

Traditionally, the Democratic pick would be deferred to the Senate minority leader (Chuck Schumer of New York in the new Congress), but President-elect Trump ran on running roughshod over standard operating procedure in D.C., so that is hardly a given.

 

Ajit Pai is the leading candidate to be interim (and perhaps non-interim) chair. A possible pick for the Republican to fill out Wheeler’s commissioner term — chairmen are also commissioners — is Brandt Hershman, the Indiana state senator with a telecom deregulatory bent. He is said to be a suggestion from VP-elect and former Indiana congressman and governor Mike Pence, who is heading the transition team. That puts Hershman in the chairman conversation as well.

 

Although Wheeler was not saying what a Trump FCC should do, he was advising on what it should not do, which is throw out regulations in service of anti-government rhetoric that he branded dangerous.

 

In his final press conference, the chairman said that far too often what goes on in Washington is demeaned. If Wheeler’s mantra was competition, competition, competition (it was), Trump’s arguably has been “drain the swamp, drain the swamp, drain the swamp.”

 

Wheeler said it was tough to make decisions in the common good as opposed to making decisions in self-interest.

 

“If we don’t use government to argue these issues out, it doesn’t mean decisions won’t be made,” said Wheeler. “It just means that decisions will be made without the input of the people. The cry for a laissez-faire government that walks away from oversight is also highly dangerous to consumers and those who operate in the marketplace.”

 

That was clearly a shot across the bow at his Republican successors.

 

Internet-service providers operating in that marketplace were cordial in their goodbyes to Wheeler, who branded Internet access providers as a virtual monopoly on the conduit to the consumer, with the incentive and ability to discriminate in those companies’ self-interest.

 

The FCC’s name for ISPs in official documents was even something of an outside joke in the Wheeler regime: broadband Internet-access service providers, or BIAS.

 

Wheeler’s legacy will be mixed. He was drawing praise from public-interest groups for his effort to spur set-top box competition, but that ran into pushback from his own party. He ran out of time on a business data services proposal that cable operators and other ISPs pushed back on. He was being praised for advancing the spectrum auction, but so far that is in its fourth stage as the spectrum the FCC can reclaim for broadband continues to drop. And the Title II reclassification of ISPs that was arguably the centerpiece of his tenure will likely be rolled back, as well as the broadband privacy regulations that are connected with it.

 

Wheeler appeared to have a clear sense of his mission, which was to make sure that broadband, the transformative technology of this century, was available to all — which he combined with a distrust of the marketplace gained from experience as a lobbyist.

 

He said last week those lobbyists were good people, but pushing self-interest rather than the public interest.

 

Wheeler is a famed student of history, which includes the struggles to get electricity to the farm wives still beating clothes on rocks well into the last century.

 

BIAS TOWARD THE EDGE?

Some can fault — and many in the industry do — how he chose to accomplish his task. But it is hard to argue against trying to get broadband to everyone.

 

ISPs argue that is what they have already been doing, and that the best thing the FCC can do is provide regulatory certainty, preferably the certainty of a light regulatory hand, in a climate conducive to investment and innovation. They took issue with the FCC’s continued suggestion under Wheeler that broadband was not being deployed in a reasonable and timely manner, a stance used to justify new regulations.

 

Wheeler signaled from day one that he viewed the FCC as a consumer-focused agency and consumers, not industry, were his constituency. But again, media companies argue that they serve consumers too and could serve them better freed from some of the rules Wheeler imposed or refused to unimpose.

 

The outgoing chairman also made clear that he viewed edge providers like Google and Facebook as creative forces for good that need to be protected against ISPs and their monopoly conduits into the home.

 

That approach is likely to change under new management.

 

“Perhaps the primary legacy of the Wheeler era is the relative primacy of companies at the ‘edge’ of the Internet, such as Netflix or Google, over Internet access providers like Comcast or Verizon,” communications attorney Robert Cooper, a partner in Boies, Schiller & Flexner, said. “While telecom regulation need not be a zero sum game, I would expect the pendulum to move in another direction in a post-Wheeler FCC.”

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