On Wednesday, the Federal Communications Commission (“FCC”), which has regulatory authority over the Telephone Consumer Protection Act (“TCPA”), announced that Chairman Tom Wheeler plans to resign as of January 20, 2017, when President-Elect Trump is expected to be inaugurated. Appointed in 2013 by President Obama, Chairman Wheeler’s term was not set to expire until 2018. It is tradition, however, for a sitting chair whose term extends into a new presidential administration to resign when the new president is from the other political party.
Since his appointment in 2013, Chairman Wheeler oversaw the FCC’s efforts to expand the reach of the TCPA. These included the July 2015 Order (previously discussed here) that, among other things, cast a wide net in interpreting what technologies constitute an automatic telephone dialing system (“ATDS”). An ATDS cannot be used to call a cellular telephone number without the prior express consent (in written form for telemarketing calls) of the subscriber or customary user of the number.
The appointment of a new, presumably Republican, chair could signal a shift in the FCC’s approach to the TCPA. It remains to be seen who President-Elect Trump will select to replace Chairman Wheeler. Commissioner Ajit Pai, a Republican appointed by President Obama in 2012, is likely to be named as Acting Chairman and may receive consideration for the permanent role.
With Chairman Wheeler’s resignation and the expiration of Commissioner Jessica Rosenworcel’s term, only one Democrat, Commissioner Mignon Clyburn, will remain. No more than three members of the same political party may be appointed to the five-person commission. Should Commissioner Pai take over as chair, the president would be able to appoint another Republican to fill his current seat, but would be required to appoint a Democrat to fill the remaining seat.