U.S. Senate Votes for More Pai

On Tuesday, October 3, 2017, the Senate confirmed Chairman Ajit Pai to a second term at the FCC, enabling him to potentially stay on as chairman until the end of 2021. Originally appointed by President Obama in 2012, Chairman Pai was a member of the Republican minority on the Commission until early 2017, when former Chairman Tom Wheeler resigned and President Trump elevated Pai to the chairmanship. While Pai’s term technically ended in 2016, FCC rules allowed him to keep serving until the end of 2017 while the Senate considered his re-nomination.

A bipartisan coalition voted to confirm Pai, with four Democrats – Sens. Joseph Manchin (WV); Claire McCaskill (MO); Gary Peters (MI); and Jon Tester (MT) – joining the Republicans to support Pai’s confirmation, for a total of 52 votes in favor. The opposition was 41 Democratic Senators. Three Democrats and four Republicans did not vote on the nomination.

Pai’s supporters in the Senate, including South Dakota Republican John Thune, lauded his work on FCC process reform, which includes his initiative to release significant items well in advance of the formal FCC meetings and vote to enable the public at large to digest and react to the proposed text before a vote. Pai, who hails from Kansas, also received accolades for his commitment to rural broadband and AM radio revitalization.

Massachusetts Senator Edward Markey criticized Pai’s decision and pending rulemaking to reconsider former Chairman Wheeler’s Title II reclassification of broadband service, arguing that the Title II regime was necessary to enforce net neutrality rules, which restrict broadband providers from providing tiered service favoring particular types of content over others. Thune, however, praised Pai’s efforts to “hit the reset button” on Title II, a classification that free-market politicians and policy analysts contend is not well suited for modern internet providers.

Pai’s reconfirmation will likely bolster efforts to rein in some of the more controversial extensions of TCPA rules. As regular readers are aware, the FCC has begun the process of reevaluating the liability structure for calls placed to reassigned wireless phone numbers – a topic that also garnered interest this week when Senators Thune and Markey sent a joint letter to Pai urging the FCC to take steps to make available a comprehensive database of reassigned telephone numbers. A database is meant to assist good-faith callers and reduce liability for inadvertent calls to such numbers. The letter notes that:

Many of our constituents complain about receiving these intrusive and unsolicited calls and texts that violate the rights of privacy and control created by the TCPA. We have also heard from hospitals, small businesses, and other stakeholders in our states who exercise care in their efforts to contact their patients, customers, or employees, but who nonetheless could face liability under the TCPA because they are alleged to have called reassigned numbers.

In July, the FCC issued a notice of inquiry seeking public input on possible use of databases to reduce the number of calls made to reassigned wireless phone numbers. Members of Drinker Biddle’s TCPA team filed comments on the notice of inquiry on behalf of the Retail Industry Leader’s Association. Those comments can be viewed here.