Set-top Boxes, Privacy, Business Data Services Top Wheeler's To-Do List, Sallett Says
The FCC's set-top box, privacy and business data services proceedings top Chairman Tom Wheeler's to-do list of priorities, General Counsel Jonathan Sallet said at the FCBA annual seminar Friday. "Clearly the chairman's goal is to bring these -- and many other items -- home before the end of the year," Sallet said during a panel with him and former FCC general counsels.
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Several actions of the current FCC administration will have major impact on the next one, including the order that set up the incentive auction structure and the open Internet order, Sallet said. The next three years of repacking work that will come out of the auction will "require leadership," he said. The open Internet order's bright line, transparency and case-by-case rules "will require additional work of articulation," he said.
The next FCC chairman should "have a unifying vision instead of a set of orders" as an agenda, since having an overarching agenda -- like Wheeler's competition mantra or Michael Powell's focus on deregulation -- can lead to an administration maximizing its accomplishments, former General Counsel Austin Schlick said. The national broadband plan mandated by Congress ended up being the theme and agenda for Chairman Julius Genachowski's administration, Schlick said. The downside of that vision-driven approach is that things outside that agenda often suffer from lack of action, Schlick said, pointing to long in-limbo FCC matters like media ownership and indecency reforms.
One possible item for that next chairman's agenda, Schlick said, could be "abundance" and focusing on wireline and wireless issues like infrastructure, since universal connectivity "is in sight." "That's an agenda that has very strong support" and would involve states and localities, he said.
Issues that have strong outside pushes also often end up moving to completion, said former General Counsel Sean Lev, now at Kellogg Huber. He also said some matters in limbo, like media ownership, are "just a matter of mathematics -- you don't have three people who agree."
Asked whether a system of more deadlines and shot clocks might hurry commissioner agreement, Lev said the consent agenda has helped to force more things to a vote without full discussion. Sallet agreed, saying just being on the consent agenda sometimes gets matters voted on. He also said staffing is an issue in the lengthy reviews some items get.
The Wireless Bureau and Office of Engineering and Technology aren't seen as having major delays on routine items, said Schlick, now Google director-communications law. Items that often face substantive delays, such as big transactions, "just take a while," he said. Schlick also said the agency has a proclivity to let items it wants to neither grant nor deny sit in limbo instead of denying and letting the applicant work on refining it.
In response to a question about presenting to the Office of General Counsel, Sallet said don't make the same arguments one would make to policy bureau staff or the commissioners. Instead, lawyers ought to prepare the way they would prepare for appellate court arguments, with a focus on the law and legal theory, he said. Lev said the office at times will want to reach a particular policy conclusion but is trying to figure out how to get there.