What Will a Trump FCC Look Like?

(Speculation Abounds, But Much Will Stay the Same)

A new administration always brings many questions from clients about how their FCC issues may be impacted. A Trump presidency brings even more questions than usual, because his campaign did not set out detailed proposals on telecommunications and spectrum policy.

While much speculation brews inside the Beltway, this is what we can say for sure:

• The FCC is an independent federal agency. That means that it is not a cabinet agency and, at least theoretically, is independent of the president's control. (The White House sets its telecommunications policies through the Department of Commerce's National Telecommunications and Information Administration.) But President Trump will select the new FCC Chairman and his party will hold a majority of the five Commissioner positions. Those selections will dictate the tone of the Commission's activities, if not the specific policies.
• It will take time to get a new FCC Chairman. Based on recent history, we doubt that a new FCC Chairman will be nominated and confirmed until late spring or early summer. While the lack of information from the Trump campaign does not mean that no one has thought about possible nominees (and certainly there are plenty of Republicans itching to push their favorite nominee), FCC appointments are not highest on a new president's to-do list. Meanwhile, the most senior Republican, Ajit Pai, likely will become Acting Chairman after the inauguration.
• The FCC's professional staff will keep the agency running. The Commission employs a large number of highly competent and professional staff - lawyers, engineers and others - who are well-versed in running the Commission's day-to-day activities. Most work is done at the "staff level" and that work should continue on schedule. Whatever big policy issues are not wrapped up by December will be on hold until new leadership arrives.

This is what we don't know:

• How much will FCC policy change? While Trump was elected based on populist support, many in D.C., as well as in industry, speculate that his election will bring back more traditional Republican ideas of less government, meaning fewer regulations and more limited review of mergers and other transactions. It is unclear right now what will trickle down to the FCC.
• Who will be the next FCC Chairman? Again, that is highly speculative. It could be that Commissioner Pai gets the nod, or perhaps another Hill staffer (three of current Commissioners are former Hill staffers). Or it could be an outsider or someone from industry. The same is true for Democrat Commissioner positions that will be opening up.
• Will the Commission "roll back" regulations? One of the most criticized recent FCC actions is the Net Neutrality rules, which were upheld by the D.C. Circuit but presently waiting for "en banc" review by all the judges at the D.C. Circuit. There is the chance that the Commission will either withdraw its appeal or decide not to enforce the new provisions. Or at some point Congress may take action and change the law to provide clear direction to the FCC. But, in general, we do not foresee repeal of many new regulations.
• What will be the biggest policy change? Both the current Republican Commissioners and the Trump campaign have focused on the issue of wireless infrastructure, such as making the placement of new small cells less burdensome for industry. In fact, Commissioner Pai just gave a speech at a CTIA event outlining five initiatives that he sees are necessary to promote broadband deployment. If the Trump administration is amenable to working with the Hill on these issues, we could see legislation in the next year or so that follows some of the Pai proposals, cutting some of the red tape being faced by broadband providers at the national, state and local levels.
• What other changes may we expect? The FCC's Enforcement Bureau under Chairman Wheeler has been notorious (and criticized by the Republican Commissioners) for issuing take-no-prisoner-level fines. It is possible that the Bureau will engage in less aggressive activity after the change of administration.