FCC Drama As Net Neutrality And Other Obama Rules Are On the Way Out

Federal Communications Commission Chairman Tom Wheeler, left, testifies on Capitol Hill in Washington, Thursday, Dec. 12, 2013, before the House Energy and Commerce Committee hearing on cell phones on planes. Wheeler is joined at the witness table with FCC Commissioners from second from left, Mignon Clyburn, Jessica Rosenworcel, Ajit Pai, and Michael O'Rielly. (AP Photo/Susan Walsh)

If you’ve been following the story, you know the Federal Communications Commission is in the spotlight right now. On January 1, unless things change the FCC will have a 2-2 split and will be (thankfully) unable to make decisions.

The story behind this is interesting.

Back in 2015 Mitch McConnell and Harry Reid made a deal to confirm two commissioners, one Democrat and one GOP. In the event the GOP commissioner was confirmed and the Democrat, Jessica Rosenworcel, was not. She has continued on but must leave the FCC on December 31. Harry Reid’s panties are in a tight moist little wad because he feels like he was screwed. Oddly enough, Rosenworcel’s confirmation is being held up by the Democrat chairman, Tom Wheeler. Traditionally, if the White House changes hands the chairman resigns so the new president gets to pick his own guy. Wheeler has refused to commit to resigning, his term doesn’t expire until 2018, and unless he does, confirming Rosenworcel will give the Democrats a continuing 3-2 majority until mid-summer.

So it looks like Rosenworcel’s nomination is dead unless Wheeler decides to resign. But wait, there is more.

ROSENWORCEL SLOW-WALK TURNING TO VOCAL OPPOSITION — At least two influential rank-and-file Republicans have come out against FCC Democrat Jessica Rosenworcel’s nomination for another term at the FCC. Sen. Ron Johnson (R-Wis.), who sits on the Senate Commerce Committee, tells MT through a spokesperson that he “supports efforts to ensure a 2-1 Republican majority at the FCC so that we can begin to roll back the burdensome regulations it recently issued.” That agency make-up is only possible if Rosenworcel’s confirmation is blocked through the end of this Congress, meaning her term would expire at year’s end. Johnson’s stance follows House E&C Vice Chairwoman Marsha Blackburn (R-Tenn.), who urged the Senate on Wednesday not to confirm Rosenworcel in the lame-duck Congress because President-elect Donald Trump “should be the one that should be able to make that next appointment to the FCC.”

— Behind-the-scenes chatter: Additional Senate Republicans on the Commerce Committee have privately made the same argument as Johnson, stemming from a desire to give the agency a Republican majority at the outset of the Trump administration, an industry source told MT. The increase in congressional Republicans’ opposition is noteworthy, since most GOP-ers have been silent on the issue recently and because the panel approved her nomination by a unanimous and bipartisan voice vote in December 2015.

In fact, more an more industry guys are saying that the odds are that Rosenworcel will not be confirmed until spring and that Wheeler will leave NLT January 20.

But Wheeler has a weak hand — and knows it. Yes, he could break with convention and stay on — until June 2018 — but the fallout could be cataclysmic for Democrats.

Wheeler won’t want to stay on indefinitely. It would become ever more humiliating. But whenever he finally goes, Republicans could leave his seat empty indefinitely. So Wheeler would be trapped.

Outrageous? Hyper-partisan? Blame Harry Reid! Ending the filibuster for agency nominations means the minority party can no longer force action on their own nominations by insisting they be paired with a majority nominee. Senate Republicans have the votes to reconfirm Pai and confirm a third Republican whenever they get around to it.

It gets worse. Clyburn could be replaced at any time after July 1. Since a deal struck by Clinton and Dole after the 1994 election, the president has allowed the Senate opposition leader to pick minority commissioners. But without the Senate filibuster, it’s not clear the deal will survive. Trump could pick minority commissioners — who don’t even have to be Democrats. By law, they just can’t be Republicans.

Senate Republicans might hesitate to use their own “nuclear option”: they probably have more to lose by being denied a voice at Democratic-led commissions. But they can certainly make a credible threat to use it just at the FCC if Wheeler refuses to stand aside.

In short, Republicans hold all the cards. Wheeler will blink. Senate Republicans would be suckers to reconfirm Rosenworcel now.

It seems like the FCC will operate with a 2-1 GOP majority for several months. What will that mean?

Two Republican U.S. Federal Communications Commissioners say the Trump administration should reverse many significant policies set by the telecommunications and cable regulatory body under Democratic President Barack Obama.

FCC Commissioner Mike O’Rielly said at an event at the National Press Club in Washington that the FCC under President Donald Trump needs to “undo the more harmful policies adopted by the current commission. … The policy direction chosen in these instances was wrongheaded, harmful to consumers and the industry, costly, and ultimately unworthy of continuation.”

FCC Commissioner Ajit Pai said he hoped the commission would eliminate many regulations, propose fewer new actions and seek guidance from Congress before taking many actions. He said the commission should take a “weed whacker” to unneeded rules.

And now that the GOP controls all the levers for a while, it looks like Congress is going to take action to defang the FCC so that it doesn’t unilaterally make law and alter the US economy in the future:

Trump transition advisor, Rep. Marsha Blackburn (R-Tenn.), said to expect action on net neutrality early in the next legislative session at an event at the Free State Foundation, reports Morning Consult. It’s possible for the FCC to take action on its own, and Trump’s FCC landing team is very much opposed to at least some key portions of net neutrality. According to Blackburn, however, Rep. Fred Upton (R-Mich.) and Sen. John Thune (R-S.D.) will likely introduce a proposal.