Biden's FCC Transition Team Takes Shape, Needs Trump Administration Help

Among those being considered for the FCC team are DLA Piper’s Smitty Smith, a former FCC and NTIA staffer and ex-candidate for attorney general of Washington, D.C., and Wiley’s Anna Gomez, former acting NTIA administrator, said lawyers active in the campaign. Neither commented Monday. Officials said Biden hopes to keep some separation between those who worked on the campaign and those working on the transition.

The General Services Administration is tasked with formally recognizing Biden as president-elect, which starts the presidency's handover. Administrator Emily Murphy hadn't started the process and gave no guidance on when she will. Murphy needs to sign a letter releasing funds to the transition team. The FCC and GSA didn’t comment.

“It is extraordinarily important to get quick, full access to information and people in order to effect a smooth transition,” said Susan Crawford, who co-led the Barack Obama FCC transition team. “There is a tremendous amount of work to be done, and every day of delay harms the public interest,” said Crawford, a professor at Harvard Law School. The FCC is moving headquarters and staff are working remotely due to the pandemic. “In-person access is secondary in the FCC context,” she said: “What's important is frank information exchange through interviews and documents. Delay means chaos, dropped balls and involuntary errors at the beginning of a new administration, which may be exactly what the outgoing administration wants.”

The incoming administration is “incredibly well-prepared, with experts across the board who know how the government works and were involved in the 2008 transition,” said Kevin Werbach, who also co-led the FCC Obama team. "They have been anticipating the unique challenges of COVID-19 and a recalcitrant outgoing administration for months,” said Werbach, professor at the University of Pennsylvania’s Wharton School. “Outgoing staffers and delays in the formal start of the process can make things messier, but the critical work will get done,” he said: “The worst-case scenario for this transition is infinitely better than 2016, when landing teams often had no guidance and did work that was literally thrown away. For an independent agency like the FCC, furthermore, there are already two Democratic commissioners who can communicate insights.”

Precedent

The FCC acting to facilitate a handoff at least partly hinges on GSA authorization, said former FCC Chairman Tom Wheeler and American Enterprise Institute Visiting Scholar Jeffrey Eisenach, who both served on transition teams. Industry attorneys said much of the transition team’s work amounts to information sharing that could occur informally. FCC Chairman Ajit Pai has the authority to decide on his own to cooperate with the Biden administration, Wheeler said: “I haven’t seen too much space between" Pai and Trump.

The FCC could feel the effects of a switchover delay less than some other agencies because the commission has members of both parties, said Eisenach, who led the incoming FCC transition team for Trump in 2016. Since Pai and Commissioner Mike O’Rielly were FCC members then and slated to continue, they were the primary shepherds of the transition effort, Eisenach said. Sitting commissioners “have insider information; they have their hands on an entire array of policy issues,” he said. The administration move-in team ended up functioning more “in a ministerial role,” as liaisons with the new administration. The handover to new leadership is more comprehensive at agencies such as Treasury, where the need for cooperation will be more intense, Eisenach said.

Wheeler, who ran the FCC transition team for Obama’s incoming 2008 administration and was chairman in 2016 during the handoff to the then-incoming Trump administration, disagreed. “If you are going to have an orderly continuation of government, it is necessary to share with your counterparts what’s been going on inside the agency,” said Wheeler. Information on pending actions, pending enforcement and national security issues such as cyberthreats aren’t otherwise publicly available to a new administration, he said.

The transition included briefings and creating large briefing books largely containing public information, Eisenach said. Part of GSA authorization would allow the Biden team to have office space at affected agencies, but Eisenach said his team didn’t use that in 2016, instead meeting with staff that December. Office space is likely a moot consideration anyway, with FCC offices still vacant because of the pandemic, industry officials noted.

“It would be unusual for the subcabinet level transition teams to be announced this soon after an election was called,” said Cooley’s Robert McDowell. “Historically, the work starts from the top, at the White House and cabinet levels, and works its way down.” At this point 12 years ago, Julius Genachowski’s name “was not the first one on the tip of people’s tongues” as next chairman, and it wasn’t clear who would head the FCC transition team, said McDowell, a commissioner then. “I worked with them a bit on the Bush to Obama transition, and those meetings started in earnest post-Thanksgiving."

The three most important transition teams for telecom investors are those for the FCC, DOJ Antitrust Division and FTC, New Street’s Blair Levin wrote Sunday. Appointments to the teams “can be misleading, but we expect that in all three, the Biden team will be composed of seasoned professionals with significant experience with the agencies who are closer … to the Obama/Biden wing of the party than" the more progressive wing, he said: “We do not think that the appointments will tell us much about future appointments to the relevant agencies but key persons in transitions do have a way of ending up in key roles.”

Simington

Lobbyists and observers are still monitoring prospects for Senate confirmation of Trump FCC nominee Nathan Simington ahead of the Commerce Committee’s planned Tuesday hearing on him and two others. Biden’s apparent win likely endangers Simington (see 2011020001). Lobbyists expect Democrats will use the threat of a hold to scuttle Senate floor consideration of Simington if Commerce advances him. Committee Republicans may choose not to mark up his nomination if they believe they can strike a deal with the incoming Biden administration to name one of their preferred candidates to fill a GOP FCC vacancy in exchange for Biden getting his preferred commission chair, lobbyists said.

Simington, an NTIA senior adviser, touted that experience and his past roles at wireless distributor Brightstar, Chapman and Cutler, Kirkland & Ellis and Mayer Brown in his response to a prehearing questionnaire, saying it gave him “the background needed to help the FCC carry out” its work. At NTIA, “I have not had involvement with any” agency matters “currently before the FCC to an extent requiring recusal, but in any situation involving a potential conflict of interest, I would seek advice from federal ethics counsel prior to taking any action.” Simington apparently played a role in drafting the executive order that directed NTIA to petition the FCC to write regulations defining the scope of Communications Decency Act Section 230 (see 2009160064).

Simington believes his “expertise in telecommunications finance will help the FCC in its mission to make the most of the USF in order to benefit all Americans, including those whose communities are currently underserved or for whom access is prohibitively expensive.” FCC challenges in the years ahead include “freeing spectrum for consumer use while ensuring that federal agencies can continue to carry out their missions unobstructed,” he said. “To win the race to 5G, establish universal access and fulfill the mandate of the FCC, America must coordinate across government and private industry to remove the barriers holding back the dynamism of our wireless sector.” The commission should continue to focus on improving telecom supply chain security and “closing the digital divide to reach full digital inclusion,” Simington said.

Connect Americans Now urged Senate Commerce leaders Monday to ask Simington how he would implement the Broadband Deployment Accuracy and Technological Availability Act, a broadband mapping law (S-1822), and whether he supports the TV white space rules approved at commissioner's Oct. 27 meeting (see 2010270034). Confirming members "who share a commitment to maximizing spectrum resources, including licensed and unlicensed applications, clearing regulatory barriers to innovation, fixing the nation’s mapping data on the digital divide and administering deployment funding guided by key principles, including neutrality toward technology, safeguards against overbuilding and rapid and cost-effective deployment, is of critical importance," CAN Executive Director Richard Cullen wrote Commerce Chairman Roger Wicker, R-Miss., and ranking member Maria Cantwell, D-Wash.