The U.S. Federal Communications Commission could look very different next year, even if President Donald Trump is reelected.
This article is part of a two-part series considering what the FCC may look like under either a second Trump term or a Biden administration. The companion article can be found here.
While Republican FCC Chairman Ajit Pai's current term would allow him to stay on at the commission until July 2021, if he chooses to stay that long, recent precedent among FCC chairs from both parties is to step down after a full four-year term.
Doug Brake, director of broadband and spectrum policy at the nonpartisan public policy think tank Information Technology and Innovation Foundation, said in an interview that if Trump is reelected, he thinks Pai could stay on as chair if he wanted to, but noted that it is "not uncommon to have two different chairmanships" under the same presidential administration.
In the event that Pai does choose to leave the commission in the coming months, Brake believes current Republican Commissioner Brendan Carr could be at the top of Trump's list to lead the commission.
"Carr has definitely positioned himself and I think seems to want it and so I think it's kind of fair to put him in the pole position ... but then, there's always a chance of a kind of unpredictable wildcard," he said.
Carr was appointed as a commissioner in 2017, having previously served as the agency's general counsel. Prior to that, Carr spent three years as Pai's wireless, public safety and international legal adviser.
Chris Lewis, president and CEO of public interest group Public Knowledge, agreed that if Trump is reelected and Pai steps down, Carr would "have the greatest amount of experience … so that's the name you hear most often."
Carr in the driver's seat
Carr, Brake says, has been attempting to position himself as more hawkish on China, in line with the Trump administration's broader stance.
For example, earlier this year, when the FCC formally determined that Chinese companies Huawei Technologies Co. Ltd. and ZTE Corp. pose a national security threat to the integrity of U.S. communications networks and the communications supply chain, Carr said in a statement that "America has turned the page on the weak and timid approach to Communist China of the past."
According to Brake, Carr also appears to be more aligned with the president's thinking around questions surrounding reform of Section 230 of the Communications Act, a landmark piece of legislation that protects internet platforms from civil and criminal liability for content created and posted by users. Section 230 also enables those platforms to moderate content posted on their sites.
After an executive order signed by Trump earlier this year directed the National Telecommunications and Information Administration to petition the FCC to review and clarify certain legal protections provided under Section 230, Carr commended the petition, saying it "provides an opportunity to bring much-needed clarity to the statutory text."
Notably, Carr has been the only Republican on the commission to support the petition publicly, so far. Pai has not yet expressed an opinion on the petition, while Republican FCC Commissioner Michael O'Rielly said in a speech, "Like it or not, the First Amendment’s protections apply to corporate entities, especially when they engage in editorial decision making." O'Rielly's nomination for another term at the FCC was withdrawn a week after that speech.
After withdrawing O'Rielly's renomination, Trump nominated Nathan Simington to the FCC. Simington, who works as a senior advisor at NTIA, reportedly played a large role in drafting NTIA's Section 230 petition to the FCC.
Brake noted that Simington's nomination did not come through the standard congressional channels, where Senate leaders usually make a suggestion on an agency appointment.
If Carr is not chosen as the next FCC chairman under a second Trump term, Brake believes that the Simington nomination shows that "there's an increasing possibility that the next chairman could come in from out of left field" without having been fully vetted by Senate leadership.
As for what the policy priorities would be at the agency under a second Trump term, Brake said that much of that will depend on who becomes the next chair.
If the agency were to prioritize reform of Section 230 in the next term, Brake believes that "even if you get the sort of more aggressive chair on those issues, that even if they do move forward, I think those would likely be challenged and rolled back in court."
Lewis agreed that he expects that the "230 discussion" will continue in a second Trump term.
Trump has long accused social media companies of censoring conservative voices online. And his executive order seeking reform of Section 230 came directly after Twitter Inc. appended fact checks to several of Trump's tweets regarding voting by mail.
Already, Trump's efforts to reform Section 230 have met resistance from industry leaders and certain lawmakers. House Speaker Nancy Pelosi, D-Calif., has said Section 230 "could be removed," but she strongly opposed Trump's executive order, saying it "does nothing to address big Internet companies' complete failure to fight the spread of disinformation."
The head of the Internet Association — a trade group representing online giants such as Twitter, Facebook Inc. and Alphabet Inc.'s Google LLC — warned that rolling back Section 230 protections will make it harder for online platforms to make their sites and services safe for users. "The world before Section 230 was one where platforms faced liability for removing things like spam or profanity. Weakening Section 230 brings us closer to that world," Jon Berroya, interim president and CEO of the Internet Association, said in June.
Beyond reforming Section 230, Brake says he thinks a Republican-led FCC under Trump would also focus on getting more spectrum out for commercial wireless use, in addition to rural broadband policy.
"In the White House, to the extent that they've talked about broadband policy issues, it's really been about rural broadband," said Brake.
He also believes that the longer the pandemic drags on, a Republican administration will face increasing pressure to do more around questions of broadband adoption and broadband affordability.