In one of his earliest official acts, President Trump appointed FCC Commissioner Ajit Pai as the long-term Chairman of the FCC. While many thought Commissioner Pai was the most likely candidate to be named interim Chairman of the Commission, President Trump skipped the interim step and immediately appointed Chairman Pai on a long-term basis. This decision is significant because it eliminates the need for the Senate to confirm Chairman Pai. While the appointment of a new FCC Commissioner requires Senate confirmation, the president has the authority to name the chairman from existing FCC Commissioners with no further action required. For the time being, Chairman Pai will head a three-member, Republican majority panel consisting of fellow Republican Commissioner Michael O’Rielly and Democrat Commissioner Mignon Clyburn. There are currently two vacant seats on the five-member Commission.
While it is difficult to predict the exact course in which Chairman Pai will lead the Commission, one thing is certain: under his leadership, the FCC will be vastly different than under previous Chairman Tom Wheeler.
As a Commissioner during the Obama administration since 2012, Chairman Pai strongly dissented to most of the significant rulemaking proceedings championed by former Chairman Wheeler. Notably, Chairman Pai was adamantly opposed to adoption of the 2015 “Open Internet” Order, as well as the subsequent Broadband Privacy Order of 2016.
In concluding his dissent to the 2015 Open Internet Order, Chairman Pai made a telling statement that may be very helpful in predicting his first order of business as chairman:
“. . . I am optimistic that we will look back on today’s vote as an aberration, a temporary deviation from the bipartisan path that has served us so well. I don’t know whether this plan will be vacated by a court, reversed by Congress, or overturned by a future Commission. But I do believe that its days are numbered.” (emphasis added)
The authority for the Commission to institute the recently adopted Broadband Privacy rules was drawn from classification of Broadband Internet Access Service as a telecommunications service in the 2015 Open Internet Order. Therefore, if the Commission overturns the 2015 Open Internet Order under Chairman Pai, the Broadband Privacy rules are likely to be invalidated.
This would align with Chairman Pai’s statements as a Commissioner dissenting to the Broadband Privacy Order. Chairman Pai was quite clear regarding his position on the FCC’s foray into Internet privacy regulation:
“My position on this issue is pretty simple. Online consumers should and do have a uniform expectation of privacy. That expectation should be reflected in uniform regulation of all companies in the Internet ecosystem. That’s the model we had during a decade of FTC regulatory oversight; that’s the model that gave us an Internet economy that’s the envy of the world.”
If Chairman Pai’s dissenting statements to these two major rulemaking proceedings under former Chairman Wheeler are any indication of priorities . . . expect change.