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No 'Must-Vote' on 3-Person Commission

While the FCC has just three commissioners, their monthly meetings are the only method Chairman Ajit Pai has to force a vote, former and current officials told us. The regulator has a “must-vote” rule to keep commissioners from stalling an item by refusing to vote on it. It's triggered by having three commissioners vote for an item, and thus won’t apply to a three-member commission, FCC officials said. Some said the practical effects of this are likely to be small, but others aren't so sure.

Former officials said having to vote at meetings on controversial items that might otherwise have been voted on circulation could make things tougher for Pai. Not all agreed. “It’s of minimal consequence,” said Georgetown Law Institute for Public Representation Senior Counselor Andrew Schwartzman.

The lack of must-vote already has come up once under Pai, when he circulated an order in January on waiving the net neutrality transparency requirement. Commissioner Mignon Clyburn didn’t vote on it until forced to do so by a commissioners’ meeting (see 1702220063). Large items in the pipeline that are likely to end up on future meeting agendas include the FCC’s predicted rollback of the previous administration’s media ownership rules and possible action to relax rules for business data services.

Items approved at commission meetings are more likely to attract attention, with closer media coverage and the opportunity for opposing commissioners to turn their dissents into noteworthy speeches, several former FCC officials said. That can be a disadvantage for more controversial items, such as large media mergers and acquisitions, one former FCC official said. M&A approvals typically are not meeting agenda items because they tend to attract negative attention or even protesters, the former FCC official said. That could arise if the FCC stays at three commissioners and AT&T buying Time Warner ends up before the commission, an official said. But many don't expect the deal to get FCC review.

Dragging out a vote on an item a commissioner opposes is generally not a preferred tactic, and not one Clyburn is expected to often use, said numerous former FCC officials and attorneys. Schwartzman agreed it’s not a tactic she’s seen as likely to favor. “It’s the nuclear option,” former Commissioner Robert McDowell said, saying it would make negotiations on future items more difficult. “It only delays the inevitable,” he said. “You’re better off writing a strong dissent.” McDowell, now with Cooley, was on three-person commissions twice in his time at the FCC. Clyburn's office didn't comment.

Restricting Pai to having items approved at commissioners' meetings isn’t much of a restriction, industry officials said. Since the chairman controls the agenda, there’s little to limit him from packing the agenda as full as he likes, one former FCC official said. The commissioners' March 23 meeting is expected to include six items and a consent agenda.

"The Commission has worked on a bipartisan basis to register significant accomplishments over the last seven weeks,” emailed a spokesman. “Chairman Pai looks forward to continuing to work with both of his colleagues to close the digital divide, promote innovation, protect consumers and public safety, and make the FCC more open and transparent.”