2020 White House Race Could Affect FCC Pace as Election Nears

Former acting Chairwoman Mignon Clyburn said Pai has accomplished his most controversial goals and will aim for bipartisan policies: "There isn’t a chair on the planet who doesn’t care about his legacy.” Others said the election will have little effect on the pace of rulemaking. FCC policies are generally too technical and obscure to matter in a presidential race, said former Clyburn aide and current chairman of Business in the Public Interest Adonis Hoffman. “Much of what the FCC does is mundane and arcane."

Congress is considered less likely to act on controversial matters in a presidential election, and the same caution can apply to federal agencies. The summer immediately before the election is considered a point after which the current FCC is unlikely to take much substantive action, said Wolfe Research analyst Marci Ryvicker. Approaching voting is a reason the agency is unlikely to make changes to the broadcast national ownership cap, Ryvicker said. One broadcaster said the slowdown wouldn’t happen until the election is decided, as was the case with the “pencil’s down” request from legislators to then-Chairman Tom Wheeler in 2016 (see 1611160020).

Some expect the agency to continue and even ramp up policymaking while its current leadership remains. Just before Pai moved up to chairman in 2017, the Media Bureau rejected an appeal from noncommercial educational stations of rules on FCC registration numbers over the then-commissioner’s objections, Gray Miller broadcast attorney Todd Gray said (see 1701040069). Pai’s FCC reversed the move soon after.

Since Pai’s opportunities to get his agenda passed would be limited if there’s a leadership change, it makes sense for him to strike while the iron is hot, one ex-official said.

Satellite lawyer Stephanie Roy of Perkins Coie said Pai isn’t likely to moderate his major priorities heading into the 2020 election. She said the idea of waiting out the end of a term for a potential incoming administration “is reflective of a bygone era." The FCC didn't comment.

Independent FCC

As an independent agency, the FCC is unlikely to actively seek to avoid controversy, and a lot of its work is nonpartisan in any case, said Satellite Industry Association President Tom Stroup. Without a particularly polarizing issue like net neutrality being teed up, there's no reason to anticipate a slowdown or acceleration tied to the election, he said.

Most of the FCC's items are unlikely to become stump speech talking points, most agree. Outside of big issues such as net neutrality and large deals, the agency rarely attracts wide attention, said Georgetown Law Institute for Public Representation staff attorney Lindsey Barrett. However, while the FCC used to labor in obscurity, that’s becoming less true, said former Commissioner Gloria Tristani. “When I was there, most of the issues were under the radar” of the public, Tristani said. FCC matters are becoming more visible to most Americans, she said.

“Self-styled ‘consumer advocates’ whose eyesight fails immediately outside the Beltway have been arguing for at least a decade that what the FCC does or doesn’t do matters in elections,” emailed Larry Downes, public policy project director at the Georgetown Center for Business and Public Policy. “But just saying so, and raising money on that basis, doesn’t make it so. There isn’t a shred of evidence that anything that happens at the agency has had any effect on outcomes, even if they register for some voters. That’s the whole point of having independent regulatory agencies. Their decision-making is supposed to be based on the boring arcana of changing technical and business realities.”

Taxpayers Protection Alliance President David Williams said Pai is unlikely to slow down as the election nears. “Pai has been so aggressive since he has taken over the chairmanship -- look at net neutrality,” he said: Pai “was not shy about doing what he did.”

Cable, Media

One thing the agency is deemed likely to avoid in the weeks before the election is media ownership rules because of the issue's potential volatility.

Former Commissioner Robert McDowell, now at Cooley, said there's still emphasis on avoiding contentious items that could fall along party lines in the run-up to elections and the agency in the second half of 2020 likely will work on items that are more unanimous or bipartisan. He said media ownership likely will be dealt with before mid-2020. Companies considering combining also should try to announce in plenty of time for the 180-day shot clock to expire before then, McDowell said. He said bipartisan issues such as spectrum allocations and auctions will be probable items for the agency to tackle in the second half. But ultimately, undecided voters in a presidential election aren't going to decide based on some FCC action, he said. "Title II might be an exception."

Pay-TV issues aren't likely to be an issue in 2020 unless some huge media deal, perhaps involving a big tech company, emerges and is seen as a consumer-related issue that generates concerns about big media consolidation, said a lawyer with cable industry clients. One possible wild card is if the Satellite Television Extension and Localism Act reauthorization has a rulemaking or report to Congress teed up in the summer or fall of 2020, he said.

As "productive as the agency has been under … Pai’s leadership, it would be difficult to accelerate it,” said Tech Knowledge Director Fred Campbell.

Broadband, 5G

Experts cited rural broadband as a likely focus of FCC action because it has support on both sides. Increasing rural broadband would be “a feather in Trump’s cap” rather than creating negative attention, said retired broadcast attorney Frank Jazzo. If any new controversial policy emerges, Clyburn said, the pressure likely would come from the House, the Senate or the executive branch. “We don’t live in a vacuum.” The commission isn't "insulated from campaigns or elections,” said Hoffman. “Everyone understands that an election can change the balance and orientation of the commission.”

Fifth-generation wireless also looms large. Campbell doesn’t "expect the pace on 5G matters to slow down.”

Clyburn expects Pai to focus on more-neutral policy as the 2020 election approaches, and the more unanimous the decisions he can oversee, the better. Pai “took on the big things early,” so he has room to aim for more bipartisan items now, Clyburn said. Citing net neutrality and the Lifeline national verifier program (see 1907080009): “The big partisan things have been taken off the table.”

Clyburn predicted Pai will first finish what’s undone on his own agenda: “That’s legacy building.” Second, she said, he will address whatever his potential outside influencers put before him, whether from industry, the House, the Senate or the White House. Clyburn predicted Pai will make every effort to clean up the dockets important to him, especially if the election outcome appears close: “You’ve got to look at the life cycle of a chair.”

The FCC “will keep up its high output through the election, but I doubt the agency’s actions will make many headlines,” said Brent Skorup of the Mercatus Center: The FCC’s “important work on things like speeding up broadband deployment, cleaning up legacy regulations, and freeing up spectrum aren’t really partisan and therefore flies beneath voters’ radar.”