Last Friday, Republicans took control of the Federal Communications Commission (FCC). Expect them to reverse quickly the most controversial decisions of the Obama FCC. They will change fundamentally how the agency works — including a renewed emphasis on bipartisanship. After outgoing Chairman Tom Wheeler rammed through more 3-2 votes than all the last five chairmen combined, any attempt at consensus would be a breath of fresh air.
According to recent reports, President Trump plans to appoint senior Republican commissioner Ajit Pai as chairman. Expect him and Mike O’Rielly, the other Republican commissioner, to negotiate with Mignon Clyburn, the sole remaining Democrat. True, Republicans will be in a position to ram through their agenda without her vote. But bipartisanship — at least on some issues — could help grease the skids for broader, more permanent legislation.
Here’s what to expect from the FCC under a 2-1 Republican majority before the other vacancies are filled by the Senate.
Prison Payphone Do-Over
Clyburn’s signature issue has been lowering the rates families pay for calls via prison payphones. The FCC had dithered on this for a decade until Clyburn pressed the issue during her brief acting Chairmanship in 2013. Intent on getting the lowest possible rates, she abandoned the FCC’s 2012 proposal to cap rates in favor of regulating the actual rates (the Left’s preferred solution) — without seeking further public comment.
This clearly violated administrative law and threatened to shut off services at some correctional facilities altogether. The FCC has now lost at least twice at the D.C. Circuit. Proper process matters most of all when the stakes are so heartbreaking.
Pai has always advocated a compromise — rate caps depending on the size of the facility — that could both withstand legal challenge and avoid shutting off service. Expect him to work with Clyburn to end this legal quagmire.
Ironically, immediate reform would mean mooting litigation that could teach Democrats valuable lessons about process — but Republicans will have plenty of time for that. They need to show they can address the problems of America’s most powerless. Ensuring the incarcerated can talk to their families isn’t soft on crime — it’s smart rehabilitation.
Universal Service Reform
In fact, Pai and Clyburn did negotiate a major bipartisan deal earlier this year. Pai and O’Rielly agreed to spend more on Universal Service to subsidize telephony and broadband for the poor. Clyburn agreed to put a cap on the Lifeline program that had never before had any ceiling at all — a ludicrous way to run a multi-billion-dollar initiative.
Clyburn reneged at eleventh hour, in the face of intense opposition from Wheeler, who could not abide her independence.
The Republican-controlled FCC should revive something like this deal. Republicans will insist on more reforms to Universal Service, as well they should. As Wheeler put it, echoing President Obama: “Elections do have consequences.” But some kind of deal is both possible and desirable.
Broadcasters are champing at the bit for permission to use their existing spectrum for next-generation broadcasting. As direct distributors of free 4K Ultra HD content, they will be more competitive with over-the-top services.
Republican commissioners apparently have some remaining concerns about what could otherwise be an easy unanimous vote. If Wheeler had not been so focused on ramming through his divisive agenda, he could have addressed them.
The FCC should move quickly on next-generation broadcasting, either putting it out for further comment immediately, or voting on the item at the agency’s February 23 meeting.
Easing Broadband Deployment
Wheeler talked a lot about “competition,” but did only two things about it. The first — clearing some local barriers to wireless infrastructure deployment — was already in motion before he took office. The second failed in court: rewriting state laws that govern how and when cities can build their own broadband networks.
Pai has already laid out a bold vision for promoting broadband deployment. Part of that vision is specific to urban and minority communities: Congress could promote Gigabit Empowerment Zones by offering tax and regulatory incentives to low-income communities that make broadband deployment easy.
But the bigger picture is to ease deployment everywhere, and, especially, to encourage deployment in hard-to-serve rural areas. The way to start that process is to convene federal, state, and local infrastructure officials as well as broadband companies in a joint conference to explore best practices. This is something TechFreedom first proposed two years ago. The FCC should heed this recommendation and lead by example.
Ending the Net Neutrality Fight
Now for the part many Democrats won’t like. Expect the FCC to undo both claims of legal authority underlying the FCC’s net neutrality regulations: Title II and Section 706. What has fueled the fight over the last decade is the FCC’s authority, not the core of “net neutrality” itself. Reversing the FCC’s power-grabs will not require any notice and comment, just a simple Commission vote — potentially even on day one.
This will effectively return broadband regulation to the Federal Trade Commission — where it belongs. Back in 2007, the FTC would have handled Comcast’s throttling of BitTorrent traffic had not the Republican FCC insisted on handling the issue.
Of course, this handover will not last long unless Congress codifies it — or some other arrangement — in legislation. Here, too, the FCC must be prepared to lead.
Both Pai and O’Rielly have hesitated to make recommendations to Congress. The FCC works for Congress, they say, not the other way around. But, historically, agencies have played key roles in shaping legislation. At the very least, both commissioners should make clear that the FCC stands ready and willing to help Congress shape a fundamental rewrite of telecommunications law — something we have needed since the 1996 Telecom Act, which failed to anticipate how radically the Internet would change telecom.
Past Bureau Items
President-elect Trump has said he will reverse many of President Obama’s executive actions on day one. The new acting chairman of the FCC should do the same on a series of major policy decisions that Wheeler made through his own executive action. Wheeler did so by delegating authority to the FCC’s Bureau Chiefs to issue policy statements that should have required votes by the full Commission and, in many cases, notice-and-comment rulemaking. Expect the FCC to reverse all of these — and start revisiting some through proper processes.
Making the FCC Great Again
The FCC was once characterized by bipartisanship, 5-0 votes, and a lack of political controversy. It was boring — in a good way. Over the past decade, however, the agency has become increasingly politicized, mired in litigation, and prone to regulatory capture. Larry Lessig, godfather of the Digital Left, was right: The FCC is a junior varsity Congress.
Ultimately, fixing this problem will be up to “varsity” Congress. But, in the meantime, the Republican-led FCC has a rare opportunity to make major course corrections. Engaging with Democrats on these and other pending issues, including real reform, could make the FCC great — independent, genial, and boring — again. The alternative? Shut down the agency and start over.
Berin Szóka is the president of TechFreedom.