Tom Wheeler In The Home Stretch

FCC Chairman Tom Wheeler has successfully completed FCC action on several of his major priorities. Far from letting up, he’s pressing on.

Last June, this blog noted that Federal Communications Commission Chairman Tom Wheeler was at the halfway point of his tenure and that he understood that “[t]he template for an effective chairmanship is to identify major priorities and get them underway as quickly as possible.”

The Wheeler era is nearing its end. [Even if a Democrat is elected President, she will appoint her own Chair soon after Inauguration Day.] Although the verdict of history will depend to a considerable degree on whether the courts uphold his decisions, Chairman Wheeler has successfully completed FCC action on several of his major priorities. And, far from letting up, Chairman Wheeler continues to press existing and new initiatives on a schedule that might allow action on them before the end of the year. As has been the case all along, he faces powerful opposition to almost everything he wants to accomplish. And, as the sand empties out of Wheeler’s hour glass, opponents are increasingly resorting to delay tactics in the hope that Wheeler’s successor may not wish to pursue the same goals – or may not do so as effectively.

Several recent FCC Chairs have emphasized policymaking by consensus, which can generate results more quickly and with less risk of pushback from Congress and the Courts. However, it also guarantees weak and ineffective regulation. Chairman Wheeler has taken a different course; he has been willing to use the full range of the FCC’s legal authority and to accept the cost, which has included long and acrimonious appearances at Congressional oversight hearings, legislative efforts to overrule his decisions and facing sometimes hostile appeals court review.

So far, Chairman Wheeler has emerged relatively unscathed. Congress did water down one of his decisions on broadcast ownership rules. And, if the Network Neutrality rules the Commission has adopted withstand judicial review (something we may know very soon), Congress may well pass legislation to wipe out some or all of them, despite the possibility of a Presidential veto. Other appeals are pending or likely, some of which have a reasonable chance of success. This fact has not deterred Chairman Wheeler from continuing to press to complete a number of major proceedings.

Using his mantra of “competition, competition, competition,” Wheeler’s major theme has been to promote broadband deployment, with a particular emphasis on making available more spectrum for broadband use. An admittedly subjective list of the Wheeler FCC’s most important accomplishments to date includes the following:

  1. Reclassifying broadband Internet providers as common carriers and using this authority to adopt strong Network Neutrality rules.
  2. Overcoming legal, political and technological challenges to design and initiate the massive auction of a large swath of spectrum currently used by TV stations.
  3. Completing the AWS 3 spectrum auction.
  4. Preempting state laws restricting development of municipally-owned broadband networks.
  5. Blocking the Comcast/Time Warner Cable transaction.
  6. Dissuading Softbank, which controls Sprint, from attempting to acquire T-Mobile.
  7. Major reforms to the Universal Service Fund, including the “E-Rate” program to assist anchor institutions, like schools and libraries, to afford high-capacity broadband service.
  8. Extending Lifeline service benefits to include access to broadband and introducing other important reforms for Lifeline.
  9. Adopting rules to address exorbitant rates being charged for prison inmates’ telephone calls.
  10. Obtaining cooperation from the Defense Department and other Executive Branch agencies in creating an innovative “Citizens Broadband Service” that gives the public the ability to share use of the relatively high band 3.5 Ghz spectrum band for broadband.
  11. Strengthening the Commission’s Enforcement Bureau and bringing a number of major enforcement proceedings.

The real challenge lies ahead. The Chairman’s ambitious agenda includes the following items which he initiated, but has yet to complete:

  • Completing the TV spectrum auction, which begins on May 31.
  • Revising and extending the Commission’s regulation of “special access” (renamed “Broadband Data Services”) to address how large carriers sell wholesale access to wireless companies and businesses.
  • Developing rules protecting the privacy of customers of broadband service providers.
  • Completing of the long overdue (and statutorily required) review of the FCC’s broadcasting ownership rules. (The Chairman has committed to submit a draft decision to the other Commissioners by June 30).
  • Forcing changes to allow customers to create a competitive retail market for cable set-top boxes, which at present can only be leased from cable operators.

In addition, Chairman Wheeler wants to start work on a number of projects that cannot be completed before he leaves. For example, he wants to begin planning for 5G services, the next generation of wireless technology. Chairman Wheeler also wants to address the deadlock between the automobile industry and the technology community over the use of spectrum which was long ago reserved for “smart highways,” but has largely lain fallow.

Perhaps the greatest problem Chairman Wheeler faces is delay. The game plan for those who oppose any of Chairman Wheeler’s initiative is to slow him down by requesting extensions for legal filings, bombarding him with letters from Congress demanding reports and other commitments before he goes forward. They have also encouraged Members of Congress to grill Chairman Wheeler at oversight hearings and to threaten legislation that would undercut his projects. However, as a long time Washington insider, Wheeler understands what is going on and seems determined to forge ahead to the very last day.

One of the more interesting parts of the campaign to block or slow down Chairman Wheeler has been Congressional pressure to demand that he commit to follow a “tradition” by stepping down on Inauguration Day. In fact, there is no such “tradition.’ He will surely step down if a Republican is elected, since the new President would immediately designate one of the Republican Commissioners to become Chairman. If a Democrat is elected, Wheeler’s resignation might result in a deadlocked FCC or even a Republican majority. That will not happen.

Chairman Wheeler recently used a sports analogy to say that he would keep running until he breaks the tape at the finish line. He clearly means it.

By Andrew Jay Schwartzman.