NATPE’s Washington Counsel Mickey Gardner writes that while Washington D.C.’s always-fluid policy situation makes it risky to gaze into the crystal ball, it sure looks like the Obama administration and the FCC it shapes will be proactive in advancing its pro-consumer, pro-public-service agenda.     

Importantly, the transition to a Democratic-controlled FCC could happen even before Inauguration Day, January 20, 2009. That’s because Republican commissioner Tate’s term will end when the 110th Congress adjourns, presumably later this month. The commission will then be deadlocked 2-2 with Republicans Kevin Martin and Rob McDowell balancing Democratic commissioners Michael Copps and Jonathan Adelstein.  But, based on rumors that Chairman Martin will step down earlier than January 20, it’s possible that if and when that happens, the FCC in the final weeks of the Bush administration would be controlled by Democrats with a 2-1 vote.

After being sworn in on Inauguration Day, the new president will designate one of the two Democratic commissioners to be the interim FCC chairman. Early in his administration, President Barack Obama is expected to nominate a permanent FCC chairman – a chairman who should win prompt approval from the nearly veto-proof Democratic-controlled Senate. In addition, a new Republican appointee to the commission could be nominated when the president nominates his new FCC chairman. 

Alternatively, the new GOP commissioner could be nominated later in 2009. In either case, both the new FCC chairman and the Republican nominee to the commission will need to be confirmed by the Senate Commerce Committee, which will be chaired in 2009 by Senator Jay Rockefeller (D-West Va.).

Policy items that the Obama FCC will face in 2009 include a long list of pending issues that were not resolved by the Martin Commission. Top on this list are: expanding public interest obligations for digital broadcasters, new localism requirements, media consolidation, and, importantly, the possibility of new or reduced indecency and violence rules for television licensees.

However, even before the Obama FCC is in place, the Supreme Court could render a ruling on the appeal of the Second Circuit Court action that strictly limits the FCC’s power to fine stations for fleeting words, i.e., the “f” word and the “s” word. In addition to the Second Circuit Court ruling now before the Supreme Court, it is noteworthy that the Bush Justice Department recently petitioned the Supreme Court to review the FCC reversal rendered by the Third Circuit Court in regard to the FCC’s vicarious liability ruling in the Janet Jackson fiasco. Either of these cases could severely alter or expand the FCC’s content regulation authority in 2009.

The Senate oversight of the Obama FCC should be gentler in 2009 when Sen. Rockefeller assumes the chairmanship of the Senate Commerce Committee. However broadcasters and cable operators will be well-advised to look at Sen. Rockefeller’s web page; it will confirm that in the past, the senator from West Virginia has persisted in introducing legislation that would restrict sex and violence on the airwaves. He has even suggested in the past that paid services such as cable and satellite transmission of video programming should be subject to new content regulations even though they are not using the public airwaves.

As far as the House of Representatives’ oversight of the Obama FCC, the fearsome reign of House Energy and Commerce Committee Chairman John Dingell is now a thing of the past, with California’s Congressman Henry Waxman becoming chairman of that important committee. Waxman is known for his strict oversight, regardless of whether he is dealing with Republicans or Democrats.

With President Obama’s nomination of New Mexico Governor Bill Richardson to lead the Commerce Department, it’s probable that that department will be a much more proactive commenter in activities related to the FCC agenda. Richardson is an adept Washington player who knows the telecom, ICT and broadcast industries quite well; so you can expect a Richardson Commerce Department to put its stamp on much of the FCC’s agenda in 2009.

So broadcasters and programmers beware: change is definitely coming and it could be good or bad. But one thing is clear: there will be a lot of regulatory activity in 2009 impacting this country’s important communications sector.