What Trump means for telecom, media and technology

As the dust settles on Donald Trump’s historic victory, official Washington is adjusting to a new normal.

The lame-duck Obama administration is relinquishing its eight-year hold on the levers of power, while the Trump transition looks at fresh opportunities to fill departments, agencies and commissions with its own myrmidons. It is a familiar rite of passage, as America’s democracy peacefully transfers power from one leader to another.

{mosads}Elections have consequences. And nowhere are the consequences more monumental than in the telecom, media and technology (TMT) sector, where the erstwhile status quo stands to be upended soon.

Predictably, every big decision of the last decade affecting broadcasting, cable, internet, telecom and wireless companies will be reviewed and revised by the new administration.

This new normal has both Wall Street and K Street recalibrating the scales in anticipation of fundamental change. While the capital markets do not like uncertainty, there are new signs of clarity and comfort emerging for investors and companies in this space.

The Trump doctrine

Hazarding an early guess on the “Trump doctrine,” we should expect a more benign, pro-business approach to communications regulation as it affects TMT.

That would be in stark contrast to the Obama policy, which emphasized “competition, competition, competition” and penalized consolidation and convergence.

The Trump worldview is not anathema to growth through acquisition by big corporations, whether broadcast, cable or telco. It is not so much a retreat from consumer protection as an advancement of corporate priorities in a jobs-first economy.

We also should expect the Trump team to be less smitten with the tech sector’s agenda or shiny objects. In this scenario, things look good for the likes of AT&T and Comcast, for example, and not so rosy for the likes of Amazon and Google, which held sway with Obama and were avidly anti-Trump.

Less regulation; farewell net neutrality

The Trump doctrine is sure to usher in a light-touch regulatory role for the federal government. In practical terms, this means a reversal of Obama’s heavyhanded regulation in the so-called “open Internet” or net neutrality rules.

The Republican Congress never accepted Obama’s net neutrality approach to internet regulation. Industry, too, fought the regulators on multiple occasions, before losing in the U.S. Court of Appeals.

With a clear path through the 115th Congress or the Federal Communications Commission (FCC), net neutrality stands to be among the first items to be undone under the Trump administration.

Bigger is not always “badder’

Under Trump, size will not matter.

Big corporations are not seen as inherently bad or suspect, despite candidate Trump’s shoot-from-the-hip reactions to questions on mergers during the campaign. In fact, the more measured Trump will rely on big companies to lead the way in rebuilding America’s economy by repatriating jobs and reinvestment.

Although the Obama administration reviewed and ultimately approved some major communications mergers, it did so grudgingly. Charter Communications was able to get its deal with Time Warner Cable through the FCC and Justice Department, but not without drama and delay.

Major broadcasters like Nexstar and Sinclair have faced inordinate delays in mergers involving routine, run-of-the-mill TV license transfers, only to be slapped with onerous conditions at the end of the process.

We can expect the Trump administration to emphasize streamlining and efficiency in the review of communications mergers. This augurs well for the proposed AT&T-Time Warner merger and the pending Nexstar-Media General merger. Both deals mean more jobs for more Americans in local communities.

It also should be a green light for a potential Sprint-T-Mobile deal, which has been waiting for the right regulatory environment to flourish. Looking prospectively, if companies can demonstrate the economic benefits of a proposed merger — primarily jobs, innovation and local development — they will find favor with Trump.

Communications Act rewrite and FCC jurisdiction

The Communications Act of 1996 is the statutory beacon for federal policy in the media and communications space. As its title suggests, however, the Act is 20 years old, and is in desperate need of revision, if not reform altogether.

Whenever talk turns to rewriting the Communications Act, much of the discussion focuses on the role and jurisdiction of the Federal Communications Commission (FCC), which has been harangued by Congress for overstepping its bounds.

The FCC is one of the most important regulatory agencies in the U.S. government, and perhaps in the world. With statutory authority over the nation’s communications apparatus, systems and devices, the FCC holds the power to approve or deny mergers; assess liability; levy fines and penalties; bring suit; award licenses and contracts; allocate spectrum; conduct hearings and inquiries; promulgate and interpret rules; establish standards and codes, and exercise a wide range of regulatory actions affecting television, radio, telephone, wireless, mobile, Internet, cable, satellite, and international telecom services in the multibillion dollar communications and information technology sector.

The agency raises millions of dollars for the U.S. Treasury through fees, fines and penalties, even though it has operated at less than full capacity for years. It is home to exceptionally capable and committed attorneys, economists, engineers and public servants who belie the term “bureaucrat.”

Despite all its power, the FCC is broken. Most of its major decisions have fallen along a 3-2 party fault-line, and allegations of improper process became the rule, not the exception.

What’s more, the FCC — intentionally or not — has alienated entire industries by its “thumb on the scale” decisions. With billions of dollars in capital often hinging on a single ruling, investors, innovators and business leaders lost confidence that the agency would act prudentially. That is a widely held view across the panoply of communications providers from broadcasters, multichannel video programming distributor (MVPDs), telcos and, to a lesser extent, technology companies.

The hope among TMT industry leaders, now, is that the Trump FCC will aright this imbalance. While FCC reform is a good place to start, it should not be the full sweep of a Communications Act rewrite.

Internet regulation, broadband, spectrum allocation, media ownership, data management and privacy are among the policy issues that warrant review and refreshment.

Media ownership

Tom Wheeler launched his FCC chairmanship with a shot across the bow of broadcasters in 2014. His out-of-the-blue attack on the rules by which broadcasters attribute their ownership interests in joint sales agreement (JSA) arrangements went straight to the heart of media ownership.

Although the broadcasters rallied Congress to undo the FCC’s rules, the larger principle remains unsettled.

Likewise, the FCC’s insistence on keeping a decades-old rule to ban the ownership of newspapers and broadcast stations in the same market is imprudent in today’s times.

The Trump doctrine eschews limitations, particularly when it comes to media.

Thus, we should expect a rollback on regulations that impose what appear to be arbitrary or antiquated restrictions on who can own what in the media — except for foreign broadcast ownership.

Telephone Consumer Protection Act (TCPA)

The Obama FCC adopted one of the most controversial anti-business rulings in decades, as it reinterpreted the Telephone Consumer Protection Act (TCPA).

Seen by many companies as a boon for class action litigants, the TCPA imposed costly restrictions on the ability of businesses to communicate with their customers with auto dialer technology.

Both Republican FCC Commissioners — Ajit Pai and Michael O’Rielly — have been opposed to the FCC’s interpretation of the TCPA and have delineated its detrimental effect on business.

In a Trump administration, their view will prevail, and the current TCPA ruling is likely be reversed.

Privacy, spectrum, set-tops and more

A number of key TMT issues remain unsettled at the end of the Obama era.

These include rules affecting internet privacy, set-top boxes, zero rating offerings, and spectrum licenses, use and allocation. Amidst a receptive Congress and a majority-Republican FCC, we can expect a heavy dose of industry lobbying in the early days of the Trump administration.

The rollback of Obama regulations will be replaced with the tenets of strong growth and less government. Under these conditions, the Trump doctrine will dominate the telecom, media and technology sector for the foreseeable future.

Adonis Hoffman is chairman of Business in the Public Interest and adjunct professor at Georgetown University. He is editor of Inside the FCC, a former senior legal adviser to an FCC Commissioner, and committee counsel in the U.S. House of Representatives.

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