Last week, Federal Communications Commission Chairman Ajit Pai signaled his intent to resign on January 20th, freeing his seat to be filled by the incoming Biden administration. For those keeping count, Pai's term was originally set to expire in June 2021, but it is customary for the commission's chairman to step down when a president of another party takes office.
“It has been the honor of a lifetime to serve at the Federal Communications Commission, including as Chairman of the FCC over the past four years,” Pai said in a statement at the time, before expressing particular pride on being the first Asian-American to chair the FCC.
There is nothing particularly controversial about the news of Pai’s impending resignation, which stands in contrast to much of his tenure. In fairness to the outgoing chairman, his term has produced some positive changes, like a push for publication of documents and draft proposals before rulemaking sessions, not after. That said, in our view, Pai has consistently come down on the wrong side of many of the biggest decisions of our day, and despite his choice to step down, his legacy leaves us wondering where we go from here.
Note: Between 2001 and 2003, Pai worked as associate general counsel for Verizon, which later became Engadget’s owner. That said, Verizon has no influence over what we publish.
If there's one thing Pai is known for -- apart from his cartoonishly large Reese's mug -- it's how he set about dismantling the net neutrality protections put into place by his immediate predecessor, Tom Wheeler. In 2015 and under Wheeler's stewardship, the FCC officially classified broadband internet a public utility under Title II of the Communications Act of 1934, with all of the additional scrutiny and regulation that comes with it. In short, the FCC's Democratic wing moved to ensure that ISPs could not throttle, block, or unfairly prioritize network performance -- all data must be treated equally.
Just months after his appointment as FCC chairman by President Trump in 2017, Pai -- an ardent critic of the Open Internet Order -- abandoned it entirely. Citing the heavy-handedness of government regulation and a potential boost to broadband infrastructure investment, Pai steered the FCC to adopt a "light-touch" framework of policies more reminiscent of internet oversight circa 1996, when a fraction of a fraction of Americans were actually online. Since then, the cost of internet access has continued to tick upward and ISPs seemingly have no qualms over enforcing potential lucrative data caps while a pandemic forces people to work from home and stay indoors when possible.
Pai’s term as chairman also saw him discontinue an effort to make prison phone calls less punitively expensive, make it more difficult for Lifeline wireless service providers to offer free data to low-income customers, and ease a cap on the number of stations a broadcaster could own, a move that put at risk the diversity of voices in the marketplace, particularly in local news. More recently, Pai's FCC has found itself in the middle of a much larger conversation about corporate responsibility, conservative bias and Section 230 of the Communications Decency Act.
Long story short, President Trump has set his sights on the titans of social media because of their tendency to flag spurious claims he makes, and wants very badly to repeal the 26 words in the CDA that effectively prevent companies like Facebook and Twitter from being liable for content their users share. At the president’s urging — and with the help of an official petition from the National Telecommunications and Information Administration — Pai has agreed to go forward in “clarifying” Section 230 protections, despite a considerable body of criticism that maintains the FCC does not have the authority to do so.
Suffice to say, we will not miss Mr. Pai. But, what happens next?
Well, once Pai officially steps down on the 20th, President Biden will likely select one of the two current Democratic commissioners -- most likely Jessica Rosenworcel -- to serve as acting chairperson until the administration settles on a more permanent solution. It should be noted that Rosenworcel was already widely considered to be a frontrunner for the job, so there's a chance that she could be named the full-blown chairperson right away. (That would make her only the second woman to head the FCC; the first was her former colleague, Mignon Clyburn.) Going into 2021, though, the vaunted lead seat seems somewhat less important than some of the empty ones.
In August of this year, President Trump -- for whatever reason -- revoked his renomination of Michael O'Rielly, a Republican who had served on the commission since 2013. The White House has never offered a reason for the change of stance, but it should be noted that two days after the president called on the NTIA to request the FCC clarify the scope of Section 230, O'Rielly publicly revealed his disagreement with Trump's assessment:
"The First Amendment protects us from limits on speech imposed by the government not private actors — and we should all reject demands, in the name of the First Amendment, for private actors to curate or publish speech in a certain way," he said at a luncheon hosted by The Media Institute. "Like it or not, the First Amendment’s protections apply to corporate entities, especially when they engage in editorial decision making."
The balance of O'Rielly's term runs out in January, along with Pai's, at which point the FCC will look somewhat gaunt. Rosenworcel will remain, as will her Democratic colleague Geoffrey Starks and their Republican counterpart Brendan Carr. Biden will probably ultimately wind up with a Democratic majority, but in the short term, how quickly the FCC could help his administration achieve policy goals like making broadband internet cheaper and more accessible remains unclear for a few reasons.
For one, President Trump nominated a new Republican commissioner: Nathan Simington, one of the architects of the NTIA petition designed to prompt change to Section 230. Should the Senate approve the president's choice -- which could happen as early as next week -- the FCC will be divided in half along party lines, leading to a situation where key rulings could be deadlocked until Biden can fill the last vacancy with a third Democratic commissioner.
Exactly how simple that process really is depends on the outcomes of two high-profile Senate runoff races in Georgia. Democrats need to pick up both seats to hit the 50-50 milestone, at which point the vice president serves as the tie-breaker. Meanwhile, if Republicans manage to hold onto the Senate, it’s possible they could attempt to block or otherwise stymie certain appointments to the commission.
All of this leaves the FCC at a crucial inflection point. The coming days and weeks will decide whether the commission's path swings toward restoring net neutrality and other highlights of the Democratic agenda, or upholding Mr. Pai's conservative body of work through partisan deadlock and Senate gamesmanship. While we're still left waiting to see what form the next FCC will finally take, we can find some solace in the fact that Pai -- and that mug -- are out of the picture.