President Joe Biden’s failure to nominate a fifth Federal Communications Commission member has forced Democrats to work with a 2-2 deadlock instead of the 3-2 majority the president’s party typically enjoys at the FCC. But things could get worse for Democrats starting in January. If Biden doesn’t make his choice quickly enough to get Senate confirmation by the end of this year, Republicans could get a 2-1 FCC majority despite Democrats controlling both the White House and Senate.
That possibility can be easily averted if Biden and the Senate spring into action, but it’s closer to becoming a reality than anyone expected when Biden became president. The reason is that acting FCC Chairwoman Jessica Rosenworcel’s term expired in mid-2020. US law allows commissioners on lapsed terms to stay until “the expiration of the session of Congress that begins after the expiration of the fixed term,” which means she can stay until the beginning of January 2022.
To ensure a 3-2 Democratic majority in January, Biden has to nominate a third Democrat, renominate Rosenworcel or nominate a replacement for Rosenworcel, and hope that the Senate confirms both nominations in time. As president, Biden can promote any commissioner to chair, but the Senate decides whether to confirm each newly nominated commissioner. That process usually takes a few months or longer. Tom Wheeler was confirmed as FCC chairman in October 2013, six months after his nomination.
“If a GOP majority happens…”
With three and a half months left in the year, it would still be surprising if Republicans gain a 2-1 majority at the FCC. But it’s also surprising that Biden waited so long that a Republican majority became a real possibility—particularly given Biden’s promises to lower Internet prices, end hidden broadband fees, restore net neutrality rules, and promote the deployment of municipal networks.
“Is it a real possibility that there’s a 2-1 Republican majority? The further we get in the year, the more that becomes a possibility,” Chris Lewis, president and CEO of consumer-advocacy group Public Knowledge, told Ars. “The rules about appointments and nominations are clear. Acting Chair Rosenworcel is almost out of time, and we’ve yet to see names put forward by the president. If a GOP majority happens, it will be because the Biden administration and the Senate failed to act in time.”
Despite Biden nominating a new commissioner for the Federal Trade Commission yesterday, advocacy groups that closely follow the FCC still don’t know when the FCC pick will be announced by the White House. Lewis told Ars today that commission observers are “still in the dark. I know there’s a lot of chatter about how the infrastructure package plays into when Biden may announce. That makes sense to me. But otherwise, we don’t know.”
Biden has taken longer to pick a permanent FCC leader “than any president since Jimmy Carter in 1977,” The Washington Post recently noted. But Carter announced his pick on September 12 of that year, so Biden has now taken even longer. Biden also hasn’t chosen a permanent leader for the Commerce Department’s National Telecommunications and Information Administration, and the delay is the “longest ever since the agency’s founding in 1978,” the Post wrote.
Potential Biden pick was opposed in Senate
Blair Levin has been following and involved in FCC developments for decades. He was FCC chief of staff for Chairman Reed Hundt in the 1990s, he was the official who oversaw the development of the FCC’s National Broadband Plan released in 2010, and he’s now a senior fellow at the Brookings Institution and a policy analyst for New Street Research. In July, Levin wrote that the potential nomination of longtime consumer advocate Gigi Sohn “led to enough Senatorial opposition that she is no longer at the top of the rankings, leaving the situation murkier than ever.” Levin further noted that while “interim Chair Rosenworcel continues to have significant Senate support, her inability to obtain the nomination after more than six months suggests to us that there is some internal White House opposition. But there is no clear front-runner for replacing her.”
Levin told Ars that he has no solid information on who Biden will pick or when he’ll make an announcement. Like Lewis, he says that Biden’s delay has lasted so long that it is now possible for the GOP to gain an FCC majority in January. “Yes, there is a real possibility that the Democrats never gain a majority and even find themselves in the minority,” Levin told us.
Free Press VP of Policy and General Counsel Matt Wood said that Biden is cutting it closer “than anyone would like” but that he still thinks it’s likely Democrats will avert the worst-case scenario. Wood pointed out that in December 2020, the Senate’s then-Republican majority fast-tracked the confirmation of Trump nominee Nathan Simington in order to create the FCC’s 2-2 deadlock. The confirmation was almost three months after then-President Donald Trump made the nomination, which isn’t atypical, but Republicans sped up the process after Biden won the election.
“Unfortunately, yes, [a 2-1 GOP majority is] possible. I still think it’s unlikely,” Wood told Ars today. “It wasn’t a great moment in American governance, but the Simington timetable last year shows that these things can move more quickly than they typically do.”
Biden and Senate leadership haven’t agreed
Which candidate is at the top of Biden’s list is unknown, and he’s apparently waiting until he can agree with Senate Democratic leaders on the makeup of the expected 3-2 Democratic majority. Ideally, Biden would nominate two Democrats simultaneously, and the Senate would pair the nominations and fast-track their approvals.
Democrats could already have an FCC majority if Biden had prioritized a nomination and settled on a choice amenable to senators by the time of his inauguration in January or even by March, April, or May. A September 2020 article by Protocol—two months before Biden beat Trump in the election—listed 14 potential nominees with experience at the FCC or in the telecom industry.
“There’s a long list of Democrats with FCC experience, and a number of them are people of color, which is sure to be a factor for Biden if he’s elected; several insiders said that being a white male would be just short of disqualifying for the top slot at the FCC under a Biden administration,” Protocol wrote in that article just over a year ago, noting that there was already plenty of speculation about Biden’s pick.
FCC takes back seat in Biden era
The deadlocked FCC is playing a reduced role in the Biden administration. By contrast, the president has kept the Federal Trade Commission fully staffed, and the choice of Lina Khan as FTC chair promises to turn that agency into a more aggressive antitrust regulator. But the FTC is focusing on Big Tech and has to oversee competition in many industries. The FTC lacks the FCC’s telecom expertise and will not spend nearly as much time or resources on protecting broadband consumers as a fully staffed FCC would.
Even on broadband, the FCC is apparently losing some of its sway. The pending Infrastructure Investment and Jobs Act, a result of Biden’s bipartisan deal with Congress, would spend tens of billions on broadband deployment. But grants from the legislation’s $42.45 billion Broadband Equity, Access, and Deployment program would be distributed by the National Telecommunications and Information Administration instead of the FCC.
This may be due to former FCC Chairman Ajit Pai’s mismanagement of a $9 billion rural-broadband fund, which has forced Rosenworcel to “clean up” mistakes that would send funding “to parking lots and well-served urban areas.” Levin recently said that the rural-fund screwup created a feeling that Congress “can’t trust the FCC,” according to a Telecompetitor article.
“Tremendous missed opportunity”
The FCC has some important things to do even with a 2-2 deadlock, like distributing new emergency broadband subsidies that Congress created in response to the pandemic. Controversial tasks like restoring net neutrality rules or the various other regulations and consumer protections eliminated by the Trump-era FCC would require a Democratic majority.
Biden recently urged the FCC to take action against the broadband industry’s misleading advertised prices and high termination fees, to end exclusive deals between ISPs and landlords that limit tenants’ choices, and generally to reverse Pai-led FCC decisions that benefited Internet service providers instead of Internet users. But Biden’s inaction is the main thing preventing the FCC from accomplishing the White House’s broadband goals. Biden may have faced Senate resistance behind the scenes, but he could have chosen to send nominations to the Senate even without a guarantee that they would be approved.
“Failing to seat a full commission this year could be a tremendous missed opportunity for the Biden administration to move forward on the goals it has laid out to fully close the digital divide and protect an open Internet,” Lewis told Ars. “This work takes time, and oversight of the FCC from a Congress in reelection mode in 2022, or with a new makeup in 2023 could disrupt that important work.”
FCC can’t vote on anything remotely controversial
Wood noted that the FCC often has party-line votes on topics that are controversial only in the Beltway—like municipal broadband networks, which are supported by both Democratic and Republican voters despite Republicans in Congress trying to ban the public networks. Similarly, Pai led a 3-2 vote to repeal net neutrality rules even though most Republican voters supported the regulations.
With a 2-2 deadlock in which both Republicans generally oppose Democratic priorities, Wood said that the FCC “can’t really move ahead on anything that is the least bit controversial within the Beltway,” even if those policies are supported by large majorities of Americans.