Pai Remains Front-Runner, But FCC Chairman Decision Seen Highly Unpredictable
The communications industry might not know for a while who the permanent FCC chairman will be under Donald Trump, said industry lawyers and former senior FCC officials Tuesday. At CES last week, there was widespread speculation Trump may tap a relative unknown. One name that keeps coming up is Indiana State Sen. Brandt Hershman, who's reportedly close to Vice President-elect Mike Pence, the Indiana governor. Industry officials said if history is a guide, the next chairman could be a surprise choice, made by the president himself with the FCC transition team playing only a minor role.
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Republican Commissioner Ajit Pai is popular among many in the communications industry and is still widely expected to be named interim chairman. But surprise choices to chair the agency have been common in the past. Mark Fowler, for example, was a relatively unknown broadcasting lawyer, active in Ronald Reagan’s 1980 campaign, when he was tapped as Reagan’s first FCC chairman. No one in the communications industry had heard of Reed Hundt, who's close then-Vice President Al Gore, before he got the nod from President Bill Clinton, a former FCC official said.
Hundt, a Democrat, told us the acting chairman, whether Pai or Commissioner Mike O’Rielly, likely will have a very active agenda. “What is the broadcast spectrum auction conclusion? What does that look like?” Hundt said. “Is the commission going to take on pending appellate cases? It’ll be 2-1 Republican so they’re at liberty to change the commission’s stance in pending appeals. What will be the stance with respect to the existing open internet order?” Other big questions include the new FCC’s stance on whether it has jurisdiction over AT&T’s buy of Time Warner and the future of Ligado’s proposed terrestrial network, he said.
Democratic Commissioner Mignon Clyburn will be a “good colleague, but they’re the majority and they have a big agenda,” Hundt said of the Republicans. "One theme stands out,” he said. “Do everything that will create new investment and new jobs. That’s a Trump administration theme.”
"If history can be a guide, this is the point in a presidential transition where the decision makers effectively go behind a curtain to make tough choices," said former Commissioner Robert McDowell, now at Cooley. "After a while, the process becomes more opaque right before big announcements are made. Traditionally, subcabinet level appointments, such as interim or permanent heads of agencies, are revealed within a few days of the inauguration."
“We’ve got a very unpredictable situation,” said a former senior FCC official. “You never know whether someone who is close to Trump has a candidate they want to put in there. With a 2-1 Republican majority, I think there’s not going to be any rush to make a permanent choice.” A former FCC spectrum official said the choice is hard to handicap, though it would be a surprise if someone with no federal telecom experience got the job.
“If the past is any indication, I would expect Pai to be designated acting and for Trump to announce his permanent choice quickly after the inauguration,” said another former senior FCC official. Other former FCC officials said the big advantage of Pai is that he would be able to move quickly to address what Republicans see as the wrong policy calls under President Barack Obama.
Republican members of Congress at CES last week supported Pai, but conceded the ultimate choice is hard to predict. “It is my expectation that [Pai] is a strong candidate for the rotation to be permanent chair,” Rep. Darrell Issa, R-Calif., told us. But Issa also said who emerges as chairman is less important than the overall direction of the FCC, which he said is likely to change markedly under Republican control.
Pai is the “likely” choice for chairman, said Rep. Bob Latta, R-Ohio, a senior member of Commerce Committee who last week was named chairman of the Digital Commerce and Consumer Protection Subcommittee (see 1701060063). But Latta also praised O’Rielly. “I’ve worked with both Republican commissioners; they both have been in my district,” Latta said. “They both have kind of the same philosophy. They get out [of Washington]. They want to see what's happening. They see how these regulations that are passed are affecting people. It's not at the 30,000-feet level, they're at the ground level."
“From what I am hearing on the Hill, Pai is still the front-runner,” said Adonis Hoffman, chairman of the for-profit Business in the Public Interest and a former Clyburn aide.