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At FCC, 3rd terms remain elusive as Clyburn's plans unclear

The future of the Federal Communications Commission's Mignon Clyburn is unclear, though questions about whether the commissioner will serve a rare third term at the agency are likely to increase as the Senate considers filling other open seats.

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Clyburn's second term at the commission expired on June 30, 2017, and so far neither she, nor President Donald Trump, has said whether she might stay for a third term, which is uncommon if not unknown in FCC history. Clyburn continues to serve due to a grace period known as a "holdover," which can end either when a replacement is confirmed or at the end of the congressional session the following year. For Clyburn, that period could stretch until December 2018.

"I don't have any news to make or any announcements to make other than to say it continues to be a privilege to serve," Clyburn said during a press conference after the FCC's July 13 open meeting. She added she sees herself as being "a voice for those who have been historically ignored."

Questions around Clyburn's seat are likely to garner more attention as the Senate moves forward on confirming President Donald Trump's nominations for the two open spots at the agency, as well as on the reconfirmation of FCC Chairman Ajit Pai. Like Clyburn, Pai is in a holdover period, as his term officially expired in 2016.

Matt Wood, policy director of the media advocacy group Free Press, noted that it is "not very common" for a third FCC term, though there is some precedent.

Since the 1970s, only two commissioners have served 10 or more years on the commission: Democrat Michael Copps, who served from May 2001 to December 2011; and Democrat James Quello, who served from April 1974 to November 1997.

In the history of the commission, which stretches back to 1934 and includes 83 commissioners, only seven have recorded tenures that lasted 10 or more years.

"It's not something most people get to do," Wood said.

Michele Hilmes, professor emerita of media and cultural studies at the University of Wisconsin-Madison, said there are several reasons why it is rare for a commissioner to stay at the FCC for a decade or more.

She noted the most memorable and controversial figures on the commission are generally chairmen who step down after each presidential election cycle. As an example, she pointed to Newton Minow, who served as chairman from March 1961 to June 1963. He famously gave a speech to broadcasters in which he called television, with a few exceptions, "a vast wasteland."

A more recent example is Tom Wheeler, who served as FCC chairman from 2013 to 2017. During his tenure, Wheeler pushed through the Open Internet Order of 2015 and the related net neutrality rules, and repeatedly invoked the mantra, "Competition, competition, competition." In 2016, as Wheeler's term was about to end, Jamie Barnett, a partner at Venable LLP and former chief of the Public Safety and Homeland Security Bureau at the FCC, told Law360 that Wheeler was a visionary as chairman, but like "any visionary who has the practicality to get things done, a controversial one."

Clyburn's tenure has not been particularly controversial. Among the top issues she lists on her commission biographical page are "enhanced accessibility in communications for disabled citizens, ... media ownership rules that reflect the demographics of America, affordable universal telephone and high-speed internet access, greater broadband deployment and adoption throughout the nation, and transparency in regulation."

Another reason as to why three-term FCC commissioners are rare is because we have not seen a political party hold the presidency for three terms since George H.W. Bush, Hilmes said.

"It's related to the administration changes," she said.

Wood said rampant speculation about Clyburn's future at the commission has not turned up anything concrete to date.

"You hear people say she's leaving, you hear people saying she's not. I don't think anybody really knows," he said.