What Next For The FCC? Beats the Heck Out of Me — So I'll Just Describe the Terrain.

A favorite Washington sport has become trying to out think the Obama transition team. I occasionally get asked about this or that possible pick, or what I think the FCC is likely to do on this or that, issue. I do not have a friggin’ clue.

Certainly I’m happy with some moves. I wildly applauded the appointment of Susan Crawford and Kevin Werbach to the FCC transition team, and am equally happy to see them joined by Dale Hatfield. Similarly, the policy review team has a number of names I recognize as strong thinkers who both understand the policy issues and have a good idea where the bodies are buried here in DC. But none of this tells me anything specific about what the Obama Administration or the FCC might do.

Nor do I put much stock in the daily news articles suggesting this or that candidate is in the running for Chairman. The Obama team has demonstrated a capacity to hold information tight to the chest. Nor do I wish to push any particular candidate. As I like to point out, when the Communist Party wanted to destroy someone back in the Red Scare days, they would praise them in their official publications. I expect that any candidate I favor will be the target of serious opposition from incumbents who would find my approach and priorities less than pleasing.

Mind you, I still think it is important for folks in the media reform and progressive communities to make their preferences known — especially on policy issues and what we think priorities ought to be. It is very nice that the Obama folks appear predisposed to agree on many issues such as network neutrality and media consolidation. But whoever gets appointed to the FCC (or other critical posts) will face a veritable army of folks all armed with excellent reasons why their issue of choice needs to go to the top of the priority list and how this exactly fits with Obama’s stated goals. Anyone who thinks that electing the right people means we can go home and let them figure it out for themselves needs to seriously think again.

But I can describe one thing with some certainty, the terrain at the FCC. Or, more accurately, I can describe the uncertainty around that terrain and how it will likely effect policy. In addition to the power to designate the Chairman, Obama may be looking at appointing no commissioners (very unlikely), one commissioner (reasonably likely), two commissioners (also likely), or three commissioners (unlikely). This uncertainty makes it very hard to predict what happens with the FCC next year. To add to the lack of clarity, the DTV transition occurring in February will pretty much suck up all the attention for the first two months — possibly more if it goes really badly. Add to this the significant turn over in both the House and the Senate Commerce Committees, with accompanying likely changes in staff, and you have a cloud of uncertainty powerful enough to obscure any crystal ball.

I explore these possible scenarios below . . . .

The problem making prediction difficult is that both Commissioner Tate and Commissioner Adelstein are on expired terms, and have been renominated for new terms. But whereas Adelstein can stay for another session of Congress on his expired term, Tate must leave when this Congress adjourns for real (which probably won’t happen, because if Congress adjourns Bush will make several zillion recess appointments). This piece at SNL Capitol Connection provides a good summary. As a constitutional matter, the current Congress (the 110th)ends and the new Congress (the 111th) begins at Noon January 3, 2009. If Tate is not reconfirmed before that, she must leave and the position becomes vacant. Adelstein can remain until the 111th adjourns, unless he is renominated by Obama and confirmed by the Senate.

Martin, McDowell, and Copps all have more time on the clock. The President cannot remove a sitting Commissioner, but he can designate who will be the Chair. By tradition, the Chair of the FCC (or similar agency) steps down so that the incoming President can have a majority for his party. But if Tate leaves, Martin could remain and Obama would still have a space for his third Democrat. But would Martin want to stay? Could he go back to being a mere Commissioner after being Chair? On the one hand, it would undoubtedly be hard to go from being the guy in charge and on the inside to being a mere Commissioner subject to the whims of the Chairman for information and travel funds. OTOH, it might be fun for Martin to sit back and let someone else try to navigate the DTV transition while Martin sits back and looks for a job at his leisure. With Martin being coy about future plans, it could go either way.

So lets examine the possible scenarios here:

Obama Gets No Appointments: The Senate Reconvenes and Confirms Tate and Adelstein, Martin Stays: This seems so unlikely as to be hardly worth mentioning, but it is technically possible if Congress comes back for another “lame duck” session to bail out Detroit. Because Tate and Adelstein are both awaiting reconfirmation, and neither has had a hearing, the Senate would need to have a hearing and then reconfirm both Tate and Adelstein.

The problem is, even if the Senate comes back, it has no incentive to reconfirm Tate. Not that there is anything wrong with Tate herself. It is simply that a Democratic Senate has every reason to refuse to confirm a Bush nominee and give the incoming Democratic President his choice of nominee.

Obama Gets One Appointment: Under this scenario, Tate is not reconfirmed and all other Commissioners stay. The interesting question is, what happens to Commissioner Adelstein. The Senate is very unlikely to confirm Adelstein but not Tate. When 110th Congress adjourns and the 111th Congress convenes on January 3, 2009, Adelstein will still have one more Congress to go before he must leave. But his previous nomination by President Bush will no longer matter. Obama will need to renominate Adelstein.

So what happens then? Does Obama renominate Adelstien or no? There is certainly no reason Obama shouldn’t renominate Adelstein. Indeed, as regular readers know I think Jonathan Adelstein totally rocks. But I am not in charge of such things. Also, it is entirely possible that Adelstein may be asked to serve in some other position, or may decide it is time to do something else. Who knows?

Whatever happens, I think it very likely Adelstein will stay on for at least awhile after the change in Administration. If so, and if Martin decides to stay on for awhile as well, that will give Obama one pick for the FCC on January 20, which he would use to give the Dems the majority. If this happens, Obama will want to get a nominee lined up and confirmed quickly, because the FCC will remain in a 2-2 deadlock until a D is confirmed and sworn in. OTOH, the FCC is likely to be focused almost exclusively on the DTV transition from January 20 until the end of February, so Obama would have some time even in this circumstance before a 2-2 deadlock would likely become a real issue.

Obama Gets Two Appointments: This could happen in two ways. The most likely is that Martin steps down and leaves the FCC on January 20. The other possibility is that Adelstein leaves (possibly to take some other post) on January 20.

If Martin leaves, it would give the Dems a 2-1 majority while maintaining a quorum. Obama would have two picks, one D one R, but could take his time because the FCC would remain in Democratic hands. But if Adelstein leaves and Martin stays (the much less likely scenario), that would make the FCC 2-1 with the Rs in the majority. Even with Copps as the lone remaining D serving as (interim) Chair, he would be virtually powerless on any major decision. In such a case, Obama would definitely want to make appointments as quickly as possible.

Obama Gets Three Appointments: While this is unlikely on January 20, it is not implausible sometime further along. In this scenario, Tate leaves January 3, Martin leaves January 20 or a month later following the DTV transition, and Adelstein leaves sometime relatively soon after that. This would give Obama 2 Ds and an R, essentially reshaping the FCC entirely within the first 6 months. Such a dramatic change would also create serious delay, however, as bringing in 3 new commissioners in a relatively short period of time would certainly prove disruptive to trying to get business done.

Other combinations are, of course, possible. Nothing requires either Copps or McDowell to stay. On the whole, I think the most likely scenario for the first 6 months of the FCC is to see Tate leave Janaury 3 and Martin leave sometime in the first 2-3 months of 2009. McDowell has no reason to leave, nor does Copps. I also think that if Adelstein wants to stay, Obama will renominate him. Certainly Adelstein has been a staunch defender of network neutrality, an opponent of media concentration, and worked tirelessly to expand wireless and broadband offerings in rural areas — priorities on Obama’s tech agenda.

Until we see how these different possibilities play out, it will be utterly impossible to predict what a new FCC will do, how it will prioritize the issues, and how quickly it will act. In a worst case scenario, we may see an understaffed and rudderless FCC effectively out of the picture for months until a set of new Commissioners is brought on board and brought up to speed. Given the priority the Obama people have shown for tech issues and the expertise of the transition team, I think a worst case scenario extremely unlikely. But even in the best of circumstances with minimal disruption, I think it unlikely that the FCC will undertake significant new initiatives until a few months have past — more if the DTV transition goes badly and sucks up time and resources.

In the meantime, expect everyone to line up with their agendas and power point slides to push their preferred policy prescriptions. If progressives don’t want to get nosed out by industry incumbents with superior resources, we cannot wait until the FCC is “settled” to figure out our own priorities based on what we think we can get. We need to have a plan, and a plan of action for how to get it.

Stay tuned . . . .

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