THE FIRST DOMINO FALLS: Chairman Wheeler Announces He’ll Step Down as Head of the FCC in January

FCCAnd so TCPA reform begins.

Democratic Chairman Wheeler announced yesterday that he will follow longstanding agency tradition and step down as Chairman of the FCC in light of the election of Republican Donald Trump as our next POTUS.  That will leave the Commission briefly headed by only 4 Commissioners with one—likely Commissioner Pai—ascending to the role of acting Chairperson ahead of Trump’s appointment of a new Commissioner.

The two leading candidates to replace Chairman Wheeler are economists who opposed the net neutrality rulings from last year. The appointment of either Jeff Eisenach (NERA Economic Consulting) or Mark Jamison (Public Utility Research Center at the University of Florida)—as is expected—would definitely switch things up at the Commission in a manner that could only inure to the TCPA’s great benefit. Indeed, Jamison has all but stated he does not feel the FCC should play a consumer-protection role. He famously suggested that the FCC doesn’t even need to exist: “Most of the original motivations for having an FCC have gone away… [t]elecommunications network providers and ISPs are rarely, if ever, monopolies.” His words, not mine.

As we waive goodbye to Chairman Wheeler, then, we wave hello to a new business-friendly FCC. What might that mean? Well with the Commission’s Omnibus on appeal to the D.C. Circuit it is easy to imagine a remand to the FCC for further proceeding might result in a cleaner (narrower) reading of ATDS, a reconsideration of the meaning of “called party” and a complete renouncement of the Commission’s errant “safeharbor” on wrong numbers. Heck, the FCC might even rule on the ABA’s long pending reconsideration petition surrounding the ridiculous limitations the FCC imposed upon its fraud alert exemption. Then again even bigger things might be in store. Commissioner O’Reilly has long said that the TCPA does not govern text messages and Commissioner Pai seems convinced that the statute was only designed to apply to scattershot dialers of the sort that no one uses anymore.

While some will say that an enormous change to TCPA regulation is unlikely, I see it as perfectly plausible. Many commentators are already suggesting that the new Commission might topple Chairman Wheeler’s crown jewel—net neutrality. If that mountain gets moved, there’s no reason to think that an ant hill like the Omnibus is too stubborn to budge, even without the D.C. Circuit’s help.

So let me humbly suggest that all industry participants get cracking with new petitions to the Commission in 2017. If we gather enough pitchforks and torches I’m sure we can yet send Chairman Wheeler’s Frankenstein’s monster back to the depths of dusty obscurity from which it emerged.

Dorsey & Whitney

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