Put Pencils Down, House Commerce Leaders Tell Pai, Simons
Democratic leaders of the House Commerce Committee asked FCC Chairman Ajit Pai and FTC Chairman Joseph Simons Tuesday to stop working on major items in light of Joe Biden's election as president (see 2011100066), which President Donald Trump continues to fight through legal challenges. Trump’s legal fight could slow the overall transition, stakeholders say. The House letters (see here and here) were expected (see here). Such requests are known colloquially as "pencils-down" requests.
FCC Commissioners Jessica Rosenworcel and Geoffrey Starks supported the Capitol Hill statement. A few major items, including the 5.9 GHz order, could still get a commissioner vote. FTC members didn't comment.
“With the results of the 2020 presidential election now apparent, leadership of the FCC will undoubtedly be changing,” said the House letter to the FCC, signed by Commerce Chairman Frank Pallone, D-N.J., and Mike Doyle, D-Pa., chairman of the Communications Subcommittee. “As a traditional part of the peaceful transfer of power -- and as part of our oversight responsibilities -- we strongly urge the agency to only pursue consensus and administrative matters that are non-partisan for the remainder of your tenure.” Simons got a similar letter.
Other requests, which also went to the heads of the Commerce Department and other agencies, ask them to comply with “the record preservation obligations set forth in federal law and to remind you of your and your agency’s ongoing obligations to preserve information relevant to congressional oversight.” The Trump administration has “obstructed numerous congressional investigations by refusing to provide responsive information,” said Pallone and three other House committees’ chairs in the letter to Pai. “You are obligated to ensure that any information previously requested by Congress -- and any other information that is required by law to be preserved -- is saved and appropriately archived in a manner that is easily retrievable.” They also asked the agencies to “preserve all information that relates to all investigations conducted during the 116th Congress, including all oversight requests or demands from Congress.”
“The FTC complies with all federal record-keeping laws and preserves all documents as prescribed by the laws,” a spokesperson emailed. The FCC declined to comment. Commerce didn’t comment.
FCC Democrats
“Historically, the FCC has honored the transfer of power from one Administration to the next by pausing any controversial activity,” Rosenworcel said: “Follow this past practice in order to ensure an orderly transition of agency affairs."
“As two of my Republican colleagues observed in 2016, it is long-standing Commission practice that, upon a presidential transition, the agency suspends its consideration of any partisan, controversial items until the transition period is complete,” Starks said. “Our congressional leaders have called for Chairman Pai to respect this precedent, and I expect that he will abide by their request.”
Four years ago, then-Chairman Tom Wheeler pulled nearly all items from the November meeting agenda. At the time, Pai and Commissioner Mike O’Rielly asked him not to move any significant items during his remaining time as chairman (see 1611160048).
Questions continue on other aspects of the transition. The General Services Administration hasn't made an "ascertainment" decision, a formal declaration set up by the 1963 Presidential Transition Act, which would let the Biden team formally begin the transition process.
Challenges
“It would be extremely difficult to conduct an orderly transition without having access to the agencies,” former Commissioner Henry Rivera, now at Wiley, told us Tuesday. “Transitions in the best of circumstances can be challenging, particularly if an agency head feels threatened and becomes uncooperative. If the transition team assigned to a particular agency can’t even get into the assigned agency to speak with the leadership there, [it] would have a very difficult time marking appropriate recommendations to the new administration. The orderly transfer of power it wouldn’t be.”
"That's why you need to have open access" in the form of a transition team able to go into the agency; otherwise there's no way to know about what planned actions or enforcement efforts are underway, said former Chairman Tom Wheeler. "With this administration, you never know" if it will abide with the "pencils-down" directive, "but not to follow precedent would be suspect," he said.
No FCC transition team has been named yet. That may come soon. See our report here.
The Biden-Harris transition team named people to other transition teams throughout much of the government. See also our news bulletin: 2011100069.
FTC
The team leader for the FTC is Heather Hippsley, who recently retired as FTC deputy general counsel. Other members are Bill Baer from the Brookings Institution and Laura Moy from Georgetown University. We weren't able to reach Hippsley through FTC representatives, and Baer and Moy didn't immediately comment.
The University of Pittsburgh's Geovette Washington leads the team at the Commerce Department. She's "on leave from her position as Senior Vice Chancellor and Chief Legal Officer at the University of Pittsburgh," emailed Assistant Vice Chancellor-Communications David Seldin. He didn't answer our other questions.
Others on that Commerce team, and their most recent affiliations, are: Joshua Berman, Clifford Chance law firm; Colleen Chien, Santa Clara University; Tene Dolphin, Greater Washington Black Chamber of Commerce; Michelle DuBois, Values Partnerships; Anna Gomez, Wiley law firm; Ellen Hughes-Cromwick, Third Way; Karen Hyun, National Audubon Society; Charmion Kinder, CNKinder; Paul Laudicina, Global Counsel; Nancy Potok; Pravina Raghavan, Empire State Development; Denice Ross, National Conference on Citizenship; Kris Sarri, National Marine Sanctuary Foundation; Mary Saunders, American National Standards Institute; Patrick Schaefer, state of New Mexico; Kathryn Sullivan, retired from NOAA; Atman Trivedi, Hills & Co.; Todd Tucker, Roosevelt Institute; Arun Venkataraman, Visa; and Kathryn de Wit, Pew Charitable Trusts.
The transition team didn't reply to a query about whether and when an FCC team will be named. Those assigned to teams are listed as volunteers.
DOJ
DOJ's cohort is led by Christopher Schroeder of Duke University. These individuals also will review the Federal Election Commission, among other entities. Schroeder didn't reply to queries right away.
People on the Justice team, and their most recent affiliations, are: Roy Austin, Harris Wiltshire; Matt Axelrod, Linklaters; Michael Bosworth, Latham & Watkins; Afua Bruce, DataKind; James Cadogan, Arnold Ventures; Melanca Clark, Hudson-Webber Foundation; Danielle Conley, WilmerHale; Raj De, Mayer Brown; Chai Feldblum, Morgan Lewis; Shirlethia Franklin, Jones Day; Larry Gold, Trister Ross; Kathleen Hartnett, Cooley; Rocio Inclan-Rodriguez, National Education Association; Dawn Johnsen, Indiana University Maurer School of Law; Pam Karlan, Stanford University; Gene Kimmelman, Public Knowledge; Richard Lazarus, Harvard Law School; Martin Lederman, Georgetown University Law Center; Neil MacBride, Davis Polk; Alexander Mackler, Delaware DOJ; Teresa Mason, Bronx District Attorney’s Office; Barb McQuade, University of Michigan Law School; Jose Morales, Fair Fight Action; Brian Nelson, 2028 Summer Olympics; Cristina Rodriguez, Yale Law School; Kris Rose, Healing Justice Project; Lynn Rosenthal, Center for Family Safety and Healing; and Paul Tiao, Hunton Andrews.
“Agency review teams are responsible for understanding the operations of each agency, ensuring a smooth transfer of power, and preparing for President-elect Biden and Vice President-elect [Kamala] Harris and their cabinet to hit the ground running on Day One,” said a news release: “These teams are composed of highly experienced and talented professionals with deep backgrounds in crucial policy areas across the federal government.”
Among members of tech and telecom related teams, those who replied to us immediately said the overall transition organization barred them from speaking with the media or answering our queries. Some, like Pitts' Washington, also are on leave from their regular employers. Kimmelman remains senior adviser at Public Knowledge, a spokesperson emailed. "Gene is a volunteer representing himself, not PK." Kimmelman, the rep said, is a "full-time volunteer taking vacation time from PK in order to participate."