I’m wishing everyone a Happy New Year and offering my thoughts on the LiveVox HCI dialer, which some courts have classified as a non-ATDS for purposes of the TCPA autodialer restriction.
A client asked recently how the change of Administration will affect the TCPA environment. I had to admit that I was still so surprised at Trump’s victory that I hadn’t thought about it!
I’ve since collected myself enough to offer some thoughts.
First, I’m optimistic that a Republican Federal Communications Commission will deal much more sensibly with the TCPA than the FCC of recent years has done. The two current Republican commissioners, Ajit Pai and Michael O’Rielly, have consistently dissented from the FCC’s unreasonable reading of the autodialer requirement and other TCPA provisions, and I look forward to a Republican majority finally undoing some of the damage done by the July, 2015 omnibus TCPA order and other decisions of the last several years. The incoming Administration could present us, finally, with a Commission that is receptive to businesses that want to communicate more effectively with consumers.
However, putting this new Commission in place will take time.
To begin with, the FCC is headed by five commissioners, three of which are always aligned with the President’s party. One of the majority commissioners is appointed by the President as Chairman. Each commissioner is appointed to a five-year term, but commissioners whose terms expire may stay in their posts for the remainder of the current session of Congress and the entire next session. Accordingly, a commissioner might remain in place for over a year past the end of his or her five-year term.
Here are the present commissioners and the years in which their terms expire:
Chairman Thomas Wheeler (Democrat): term expires in 2018.
Jessica Rosenworcel (Democrat): term expired in 2015; Senate has not acted on re-nomination; must leave office in December, 2016.
Mignon Clyburn (Democrat): term expires in 2018.
Ajit Pai (Republican): term expires in 2017.
Michael O’Rielly (Republican); term expires in 2020.
We can expect the path to the new, Republican majority to start with Rosenworcel’s departure at the end of the year, which will leave a 2-2 split between Republicans and Democrats.
The process will continue with Wheeler’s resignation from the Chairman’s job, which is expected between now and Inauguration Day. (Wheeler cannot be prevented from serving out his term as a commissioner if he so desires, and there is some speculation that he will stick around for a time if there would otherwise be a temporary, 2-1 Republican majority. However, there is no real prospect that Wheeler will try to finish his term.)
While all of this is going on, we can expect President Trump to appoint an acting chairman to take over while the new Commission is taking shape. This job likely will go to Ajit Pai, the senior of the two Republican commissioners.
If Pai, Clyburn and O’Rielly are still in place when the dust settles, President Trump will need to appoint two commissioners: a Republican chairman to replace Wheeler, and a Democratic commissioner to replace Rosenworcel.
The new chairman probably will not be Pai or O’Rielly, but rather an outsider who supported Donald Trump during the election campaign – or, at least, who was not conspicuously hostile to Trump.
The Trump Administration also will have to consult with Democrats on a nominee they will support as a replacement for Rosenworcel. Sending only a Republican name to the Hill, without a simultaneous Democratic nomination, would ensure delay in the Senate.
Even well-prepared transition teams have struggled with this process, and it’s fair to say that the Trump team is making a slow start. Until the new commissioners are appointed and confirmed, major FCC initiatives cannot be expected. After that, and after the new chairman and his staff have mastered the contentious agenda before them, we can begin to explore the opportunities presented by a Republican FCC.