After receiving a letter from Congress advising the FCC and other federal agencies against “finalizing pending rules or regulations in the [Obama] Administration’s last days,” FCC Chairman Tom Wheeler canceled the FCC’s scheduled vote last Thursday on rules prescribing a new regulatory framework for the “special access,” or business data service (BDS) market. Three other items were also deleted from the agenda of the FCC’s November 17 open meeting, including (1) an order making an additional $470 million in “Mobility Fund” outlays available annually for the next five years for the extension of wireless LTE network coverage, (2) an order mandating an increase in the number of broadcast and non-broadcast program hours that must include “video description” tracks for blind or visually impaired viewers, and (3) a Notice of Proposed Rulemaking soliciting views on plans to implement a “just and reasonable” roaming standard for mobile voice and data and services.

Signed November 16 by House Majority Leader Kevin McCarthy (R-CA) and by the heads of all standing House committees, the letter contends that forbearance from agency rulemaking actions in the waning days of the Obama Administration “is necessary to afford the recently-elected Administration and Congress the opportunity to review and give direction concerning pending rulemakings.” The letter further cautions Wheeler and other federal agency leaders that, “should you ignore this counsel, please be aware that we will work with our colleagues to ensure that Congress scrutinizes your actions . . . pursuant to the Congressional Review Act.”

Circulated last month by Wheeler, the draft BDS order—which earned mixed reviews from the industry—would bring all incumbent local exchange carrier circuit-switched TDM services under price cap regulation while phasing in a one-time, 11% cut in the price cap for such services over the next three years. Despite having been deleted from the FCC’s November meeting agenda, the draft BDS order and other deleted items remain on circulation among the FCC’s commissioners, thus leaving open the possibility of a vote before the end of Wheeler’s tenure. (In previous remarks to the press, Wheeler has highlighted the enactment of BDS rule revisions as a top priority for the remaining portion of his FCC term.) 

Meanwhile, as some industry executives voiced dismay at Wheeler’s decision, others welcomed the move. Emphasizing that, “after a decade-long delay and over $150 billion in economic impact to the American people . . . the BDS order deserves a vote at the FCC,” Incompas CEO Chip Pickering lamented that “failure to act tarnishes this FCC’s competition legacy.” Public Knowledge Senior Vice President Harold Feld expressed similar sentiments, observing that, while he respected “the tradition that the FCC would generally wait for the new administration before acting on any new initiatives, these items were essentially completed and ready to move.” U.S. Telecom Association President Walter McCormick, however, applauded Wheeler’s decision “not to move forward with substantial policymaking proceedings that would have a significant impact on the economy,” declaring: “we look forward to working with the new administration and FCC on future broadband initiatives that will lead to greater infrastructure investments.”