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By: Matthew N. Foree
Today, the Federal Communications Commission (“FCC”) issued a statement that Chairman Tom Wheeler, a Democrat who has held the position for more than three years, has announced that he intends to leave the FCC on January 20, 2017.
As part of the announcement, Chairman Wheeler issued the following statement: “Serving as F.C.C. Chairman during this period of historic technological change has been the greatest honor of my professional life. I am deeply grateful to the President for giving me this opportunity. I am especially thankful to the talented Commission staff for their service and sacrifice during my tenure. Their achievements have contributed to a thriving communications sector, where robust investment and world-leading innovation continue to drive our economy and meaningful improvements in the lives of the American people. It has been a privilege to work with my fellow Commissioners to help protect consumers, strengthen public safety and cybersecurity, and ensure fast, fair and open networks for all Americans.”
Chairman Wheeler was involved in the FCC’s controversial July 2015 Declaratory Ruling and Order (“Declaratory Ruling”), which clarified its position on several issues related to the Telephone Consumer Protection Act (“TCPA”) as reported previously. An appeal of the Declaratory Ruling is currently pending before the U.S. Court of Appeals for the D.C. Circuit.
Chairman Wheeler’s intent to leave the FCC creates an interesting issue as to his successor and the political majority of the Commission. Currently, the Commission includes three Democrats and two Republicans. Significantly, the Senate took no action to reconfirm Democrat Commissioner Jessica Rosenworcel, meaning that she will be leaving the FCC. Wheeler and Rosenworcel’s vacancies will leave the Commission with a 2-1 Republican majority until President-Elect Trump fills out the Commission. The vacancies would enable President-Elect Trump, whose campaign is currently involved in TCPA litigation, to appoint two more Republican Commissioners who may be more willing to constrain the interpretation of the TCPA and ultimately end the statute’s boon to plaintiffs’ counsel. We will continue to monitor this issue and report on any significant developments.