Obama And Harry Reid Are Trying To Stack The FCC With Dems Before Trump Hits Town

There’s a new administration coming to Washington, and there’s already some serious maneuvering around the political makeup of next year’s Federal Communications Commission.

If Democratic leadership plays its cards right, Democrats could hold a majority among the five FCC commissioners, even with a new Republican in the White House. If that were to happen, Donald Trump could lose control of the country’s tech and communications agenda before he ever sits down in the Oval Office.

How? President Barack Obama and Senate Minority Leader Harry Reid are now petitioning members of the Senate to renominate and reappoint Jessica Rosenworcel to her second term as an FCC commissioner, two D.C. sources told me Tuesday.

A Rosenworcel reappointment would assure a second Democrat on the five-member commission next year. This would be fine with most Republicans if the current chairman, Democrat Tom Wheeler, would follow convention and step down as Team Trump prepares to take power. But Wheeler has so far refused, and technically he doesn’t have to step down—his term won’t expire until November 2018. As of (December 18, 2016), a source close to the situation tells me, Wheeler remains firm in his resolve. That doesn’t mean that Wheeler would stay on as chairman, only that he can remain a commissioner.

Obama and Reid need to win the support of GOP senators to get a floor vote to remove the hold on Rosenworcel’s renomination, another D.C. source told me. This must happen before Congress departs for the holiday on December 15. (And there’s a good chance many members will begin leaving at the end of this week.) A hold on Rosenworcel’s renomination was placed by Senator Markey (R-Massachusetts), but Markey reportedly no longer opposes her reappointment.

If GOP Senators allow Rosenworcel to be reappointed before Wheeler has stepped down, Congress could recess with a 3-2 Democratic majority set to lead the FCC next year.

After Trump’s surprising victory November 8, Chairman Wheeler agreed to remove all the important partisan initiatives from the FCC’s agenda. This came at the request of GOP senators and Republican commissioner Ajit Pai in the middle of November. These initiatives include a forthcoming ruling on the carrier practice of “zero rating” certain services, meaning that customers do not have their connection to certain services—like music streaming or Facebook use—counted against their monthly broadband allotment. Critics say the practice violates core principles of net neutrality, which holds that all data should be treated equally.

It’s also very possible that the commission’s controversial 2015 decision to reclassify broadband as a Class II service would remain intact, even as Trump and other Republicans want to see that decision rolled back. Legal challenges to the FCC’s power to make such a classification will almost certainly go forward next year. A Republican-controlled FCC would simply forgo fighting back in court, which would effectively remove the Class II label by court order, one source told me. A Democratic-led commission, on the other hand, would likely fight hard to keep the reclassification in force.

It seems like a no-brainer that Senate Republicans would simply refuse to support a floor vote on Rosenworcel’s reappointment, but it might not be so simple. One well-placed source told me Senate majority leader Mitch McConnell wants to make an important appointment to the Federal Energy Regulatory Commission. Senate Democrats might agree to let that appointment go forward in exchange for GOP deference on the Rosenworcel reappointment.