FCC Deletion of Major Agenda Items a Response to Rising Pressure From Republicans

Deleted from the agenda were an order and Further NPRM on business data services, an order on mobile fund Phase II, an NPRM on mobile roaming obligations and Voice over LTE regulatory classification, and a video description order, plus a "consent agenda" Enforcement Bureau item. It left in place a Freedom of Information Act item on the consent agenda (see 1611160041).

“The election of Donald Trump ushered in the end of the Wheeler FCC,” said Roger Entner, analyst at Recon Analytics. “I think this is it until a new chairman or acting chairman takes over.”

“The curtain has come down on the Wheeler commission, especially regarding big and fundamental policy initiatives,” said Robert McDowell, former commissioner now at Cooley. “Although it's possible Tom could get some items out the door, his efforts could all be for naught because, without bipartisan consensus, they would be stayed on Jan. 21 and later reversed altogether. The tables have been turned and Mike [O’Rielly] and Ajit [Pai] now hold the cards.”

House and Senate Republican Commerce committee chairmen Tuesday called on the FCC to back off of controversial actions, and GOP commissioners quickly followed suit, with Pai calling for all four agenda items to be withdrawn from the meeting (see 1611150052). Another letter surfaced Wednesday from House Republicans urging executive branch department secretaries, administrators, directors and agency commissioners not to finalize remaining actions. "Should you ignore this counsel, please be aware that we will work with our colleagues to ensure that Congress scrutinizes your actions -- and, if appropriate, overturns them -- pursuant to the Congressional Review Act," said the letter from Majority Leader Kevin McCarthy, R-Calif., and 21 committee chairmen, including Commerce Committee Chairman Fred Upton, R-Mich.

3-2 Votes?

Sen. Ed Markey, D-Mass., criticized the Republican opposition that forced the deletion of the agenda items. “Blind and visually impaired individuals will suffer because Republicans and their allies on the Commission will not allow a vote to expand the amount of video-described programming available," he said in a release. "Small business, universities, hospitals, and public safety organizations will suffer because Republicans and their allies on the Commission won’t allow a vote on business data services. Republican lawmakers should stop their obstruction and support Commission action on those pro-consumer, pro-accessibility measures without delay.”

FCC Democrats would have had to adopt any major agenda items 3-2, said one agency official. Another FCC official expects "nothing of significance" to be adopted at the commission level before Republicans take the helm in January. “I have a hard time thinking of something that would be significant that wouldn’t be controversial," said the official, who added that bureau licensing and other routine items would continue to be addressed.

“It’s the first sign of a change,” said a top communications lawyer. Wheeler could move forward on truly noncontroversial items, but would have to check with the Republicans before doing so, the attorney predicted. “I don’t think the commission has to go out of business for the next two months.”

Incumbent telco officials welcomed the FCC decision to withdraw the BDS order/FNPRM. President Walter McCormick said USTelecom looks forward to working with the Trump administration and FCC on "broadband initiatives that will lead to greater infrastructure investments that better serve American consumers and businesses.” CenturyLink Senior Vice President John Jones made a similar comment and said his company believes "the communications industry will continue to be competitive, innovative and market-driven without the burden of regulation.”

But Incompas lamented a "broken BDS promise" and said the FCC item deserved a vote. “Failure to act tarnishes this FCC’s competition legacy and punishes small businesses, schools and libraries who have been promised faster speeds, lower prices and more competition," said CEO Chip Pickering. "The voters have insisted that Washington is broken. They want more competition and better pricing. The market is rigged for broadband monopolies. It’s time for FCC leadership, in the mold of Teddy Roosevelt and Ronald Reagan, willing to fight for competition for all.”

The issues driving all of the items that were on the agenda “aren’t going to go away” and Republicans will have to address them “one way or another,” said Harold Feld, senior vice president at Public Knowledge. “The BDS proceeding has now been pending for over 10 years. The fact is the final order dealt primarily with copper and legacy services. It wasn’t all that controversial given that [the FCC] scaled back what they were going to do on the Ethernet loops. I think it’s an unfortunate missed opportunity.” Feld told us in retrospect, Wheeler would have been better off holding the November meeting before the election. Kevin Martin eight years ago had the FCC take up a number of big items during an Election Day meeting, Feld noted (see 1611150054). “It certainly does show the wisdom of Kevin Martin.”

Public Knowledge CEO Gene Kimmelman also issued a statement calling on Trump to address the "cable box rip-off affecting millions of Americans -- and costing consumers billions of dollars.”

Wireless, Other Items

Pulling the wireless items, and the BDS order, was a loss for competitive carriers, groups that represent them acknowledged. All three were “very critical issues” for his members, said Steve Berry, president of the Competitive Carriers Association. “The commission should continue to find consensus and move forward in the coming months.”

The Rural Wireless Association “looks forward to working with new Commission leadership on issues important to the provision of mobile wireless service in rural America, including Mobility Fund Phase II, Data Roaming, and Business Data Services,” the group said in a news release. “There is no program more vital” to RWA members’ “ability to maintain and expand rural wireless networks and provide essential voice and broadband service to rural consumers” than the mobility fund, the group said.

Wheeler should now finish the incentive auction, “take the ropes off” Nexstar's buy of Media General, “wrap up” the Ligado proceeding “and clear up the odds and ends on the agenda,” said Adonis Hoffman, chairman of the for-profit Business in the Public Interest. “Dropping BDS and the other items was perhaps the best expression of 'forbearance' we have seen thus far.”

The draft video description order set for Thursday's meeting was among those expected to be approved by a 3-2 vote (see 1611020059). The order would have raised the amount of video description required for networks and the number of networks covered by the requirement, an increase that the Republican Commissioners and industry groups had argued overstepped the intent of Congress. The item also included a “no backsliding” rule that would continue to apply the video description requirement to networks once covered under the rule even if they fall out of the top five or top 10 in their category. NCTA, MPAA and NAB had all lobbied the commission on the item recently (see 1611140070), arguing that the increase in scope was outside FCC authority. Consumer groups representing the blind and visually impaired supported the item.

The order being pulled from the agenda inevitably will delay increases in video description that would benefit those who are blind, said American Foundation for the Blind Director of Public Policy Mark Richert. “It's heartbreaking to see something like video description get caught up in this kind of process.”