Commentary: Whomever wins the election wins the FCC
Greetings from Riverton. As we are all waiting for the results of this year’s presidential election, no matter which side you are on, we must also remember that whomever wins this election also wins the FCC. Commissioners on the FCC are appointed by the President and confirmed by the Senate. Most importantly, the President also designates the FCC Chairman. This will also steer the direction of where the FCC will go in the next four years.
We must also add to the mix that Commissioners get 5 year terms, which can be extended another 5 years. They can also serve extra time until the beginning of the next Congress. Finally, the makeup of the Commission is normally 3 commissioners from the majority party and 2 from the minority.
President Trump has already announced that he would not renew the term of Commissioner Michael O’Rielly. Those of us in radio know that O’Rielly has been very pro NAB and also made pirate radio a major priority. He was instrumental in getting Congress to pass the PIRATE Act, a law that increased the fines for unauthorized operations and ordered the FCC to take more proactive actions to curb radio piracy.
O’Rielly’s possible replacement will be Nathan Simington. Simington is currently an advisor at the National Telecommunications and Information Agency (NTIA). The Trump Administration, through the NTIA had proposed to the FCC to reinterpret Section 230 of the Communications Act where it relates to the way that social media websites like Facebook, deliver news stories to readers. Section 230 gives certain protections to such websites where it comes to the delivery of third party content, like news. This stems from accusations that social media sites are blocking conservative content in favor of liberal content. O’Rielly lost renomination because he was critical of the President’s plan to address Section 230. Simington would be a more perfect fit to move forward the President’s agenda on the issue.
The Senate has not taken up Simington’s nomination, which many said was because of the priority to nominate a new Supreme Court justice. If Simington is not confirmed by January, then whomever becomes President can either nominate him again, renominate O’Rielly or nominate someone else.
Brendan Carr, the other Republican Commissioner has been on the FCC since 2017. Carr is an attorney who previously served as General Counsel for the Commission and came up through the staff ranks. During his time as a Commissioner, he has been fairly quiet on broadcast issues focusing more on broadband including rural broadband initiatives.
Chairman Ajit Pai was first nominated by President Obama to fill a minority seat as a Commissioner. After Trump was elected, he was made Chairman. Most know Pai for his strong position against network neutrality. The disapproval was so severe for Pai that his family was receiving death threats. At the FCC open meeting where the net neutrality rules going to be voted on to be repealed, the vote was delayed for just under an hour due to a bomb threat called into the FCC Headquarters.
Pai’s pet projects for broadcasting included AM Revitalization, which expanded the use of FM translators for AM stations as well as other technical changes to improve the flailing AM broadcast service. Pai was also instrumental in efforts to allow bigger broadcasters the ability to own more stations in a market, eliminate the newspaper cross-ownership rules and reward big owners that offer assistance to prospective minority broadcast owners through his “broadcast incubator” program.
Despite the controversial causes Pai was promoting, he was also instrumental in supporting Media Modernization, the most substantial overhaul of the broadcast rules. Some of his ideas were unpopular with those in the media justice and grassroots movements, such as the elimination of the main studio rule, other Media Modernization efforts gave us a more streamlined noncommercial educational application process, more flexibility for LPFM stations (even though we did not get LP-250) and the restructuring of the cold-war era public notice rule, which gave substantial relief to broadcasters of all sizes to comply with the law that was a response to payola and the 1950s quiz show scandals.
Pai also introduced the “rocket docket” internal process within the FCC to help speed along rulemakings from proposal to report and order. Pai was also the first FCC Chairman to publish circulation drafts of proceedings that are on the agenda for the upcoming open meeting. This 3 week in advance sneak peek gives stakeholders, like REC, the ability to see what is on the FCC’s mind and also gives us the next two weeks to make ex parte presentations to the Commissioners or staff to fix issues or suggest something different. This process has already worked for us, and against us. Hopefully the Chairman that will eventually follow Pai, keeps the circulation draft process in place.
Pai can remain on the Commission until January, 2023. If Biden is elected, then he would no longer be Chairman. In the past, we had heard rumors that regardless of the outcome of the election, Pai may leave the FCC ahead of his term limit. If Biden is elected, it is very unlikely that Pai will stay around, but he can if he wants.
On the Democratic side of the panel, Commissioner Jessica Rosenworcel can remain on the Commission until January, 2022. Since the departure of Mignon Clyburn from the Commission, Rosenworcel has been extremely supportive of LPFM and other community radio and social justice efforts. Jessica was the most vocal during her very long dissent statement made on the net neutrality repeal vote. If Biden is elected, there’s a good chance that she will be able to serve out her term as Acting Chairperson. This would be the best honor that can be bestowed on her. She was the one in our corner when no one else was.
Finally, there’s the current Commission newbie, Geoffrey Starks. Starks is a staff person who came up through the FCC Enforcement Bureau to his current position. Starks has been fairly quiet on broadcast issues but more focused on issues such as broadband and universal service funding. I am still in the process of “training” Starks on the issues that impact LPFM, NCE and community broadcasting in general.
So, what will be the big agenda item based on the outcome of the election?
If Trump is reelected, the big issue is definitely going to be Section 230. Some say what is proposed by the Trump Administration is to assure that social portals that receive certain protections from liabilities are channeling all news stories to their users as opposed to what is called by some, as a preference for the liberal media. Those who oppose Trump’s Section 230 agenda, criticize the proposals as government control of the media. Systems that have many of the same social functions of Facebook have been around, on a smaller scale since the 1980s in both computer and interactive voice forms. REC’s early history is centered around interactive voice systems that could be seen as some of the earliest forms of today’s electronic social media.
If Biden is elected, we will likely see a strong effort to restore network neutrality. Even though the Pai FCC repealed net neutrality, most (but not all) internet service providers have been on their best behavior.
Whomever is Chairman in the next term, whether its Pai, Simington, Rosenworcel or someone else, they will control what comes front and center on the agenda. I will work with both sides. Actually, one of my best relationships is with Pai’s staff. Whichever way the Chairman’s seat swings, we need to carefully pick our battles but at the same time, never forget the fact that LPFM is truly a bipartisan service as evidenced in 2011 with the Local Community Radio Act, despite its flaws, that was cosponsored on both sides of the aisle by Senator McCain of Arizona and Senator Cantwell of Washington.
REC’s policy is to leave party politics at the door, but at the same time, we have given a rundown of REC’s nonpartisan outlook on the future of the FCC after the first business day in January. Fortunately, radio is not as much of a politically divided issue as other FCC issues are. No matter who resides at 1600 for the next four years, REC will work with both sides of the aisle at the FCC to assure that LPFM and NCE radio have decent and fair regulations and policies, regardless of what “side” the station is on. We’re all in this together.