The FCC in the Trump era

posted on 11.14.2016

With the election of Donald Trump as the nation’s 45^th president, broadcasters’ eyes turn to Washington to see what might be in store for FCC regulatory policy and laws affecting the media landscape.

Attorneys Laura Stefani and David Oxenford of TAB Associate Member law firms Fletcher Heald and Hildreth and Wilkinson Barker Knauer agree that getting a good read on what a Trump FCC may pursue is difficult, in part because Trump himself lacked specifics during the campaign on broadcast regulation and spectrum policy.

It is clear that the FCC’s professional staff will keep the agency running as usual until a new FCC chairman is selected – and that could take some time.

“Based on recent history, we doubt that a new FCC Chairman will be nominated and confirmed until late spring or early summer,” Stefani said. 

“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.”

FCC watchers expect the senior Republican commissioner, Ajit Pai, will become acting Chairman.

Trump could select an as-yet-unknown as the FCC’s new permanent chairman or keep Pai in the post.

Wilkinson Barker Knauer’s Oxenford notes that Jeffrey Eisenach has been associated with the Trump transition teams planning for the possible transition of power.

Eisenach is a visiting scholar and Director, Center for Internet, Communications, and Technology Policy at the American Enterprise Institute, a conservative “think tank” in Washington.

As to current and new policy, whatever big issues not wrapped up by December will likely be on hold until new FCC leadership arrives.

“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,” said Stefani. 

Oxenford agreed.

“One would certainly expect a lessening of the regulatory burden on broadcasters – as lessening burdensome regulations on businesses was a clear plank of the Trump agenda,” Oxenford said.

“The make-up of the FCC will likely facilitate such changes, as Republicans will no longer be in the minority at the FCC.”

A traditional Republican administration could reverse course on an issue like the FCC’s Ownership Rules, but Oxenford notes a Trump Administration might prove unpredictable.

“President-Elect Trump’s expressed hostility to big media companies is a wild card in this calculation,” Oxenford said.

Additional Trump question marks include antitrust policy and libel law reform.

Other federal regulation seen as onerous, however, could be subject to review such as the FCC’s EEO rules, public file obligations, and excessive fines issued by the Enforcement Bureau.

Stefani points out the GOP commissioners were often critical of the rampant and extreme fining by the Enforcement Bureau under the Wheeler-era FCC.  

“FCC reform generally has been a signature issue of the Republican Congress,” Oxenford said.

“Signature issues under such reform proposals have included more transparency in decision making, more rapid decision making, and requiring more economic analysis of the effects of any new regulation on those being regulated to make sure that the regulation is justified.”

Stefani sees continued action on wireless infrastructure as a possibility since Trump and GOP commissioners like Pai have focused on it.  

“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,” she said.

You can read blog articles written on the incoming Trump Administration and potential developments for broadcasters by Stefani here and Oxenford here.  

Questions? Contact TAB's Michael Schneider or call (512) 322-9944.

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