Biden’s puzzling FCC delay could give Republicans a 2-1 majority in FCC

Enlarge / President Joe Biden signs an executive order as (LR) Secretary of Transportation Pete Buttigieg, Chairman of the Federal Trade Commission Lina Khan, Secretary of Health and Human Services Xavier Becerra, Secretary of Commerce Gina Raimondo, Attorney General Merrick Garland , Director of the National Economic Council Brian Deese and Acting Chairman of the Federal Communications Commission Jessica Rosenworcel watch the White House July 9, 2021, in Washington, DC.

President Joe Biden’s failure to nominate a fifth member of the Federal Communications Commission has forced Democrats to work with a 2-2 stalemate instead of the 3-2 majority that the president’s party typically enjoys in 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 secure a 2-1 majority in the FCC despite Democrats’ control of both the White House and the Senate.

This possibility can be easily avoided if Biden and the Senate spring into action, but it is closer to becoming a reality than expected when Biden became president. The reason is that the tenure of Interim FCC President Jessica Rosenworcel expired in mid-2020. US law allows commissioners with expired terms to stay until “the expiration of the session of Congress which begins after the expiration of the fixed term”, which means that it can stay until the beginning of January. 2022.

To secure a 3-2 Democratic majority in January, Biden must name a third Democrat, reappoint Rosenworcel or name a replacement for Rosenworcel, and hope the Senate confirms both appointments in time. As president, Biden can promote any commissioner to the presidency, but the Senate decides whether or not to confirm each newly appointed commissioner. This process usually takes a few months or more. Tom Wheeler was confirmed as chairman of the FCC in October 2013, six months after his appointment.

“If a GOP majority occurs …”

With three and a half months remaining in the year, it would still be surprising if the Republicans got a 2-1 majority in the FCC. But it’s also surprising that Biden waited so long for a Republican majority to become a real possibility, especially given Biden’s promises to lower internet prices, end hidden broadband charges, and reinstate. net neutrality rules and to promote the deployment of municipal networks.

“Is there a real possibility that there is a 2-1 Republican majority? The further we go through the year, the more of a possibility it becomes,” Chris Lewis, chairman and CEO of the advocacy group, told Ars. consumers Public Knowledge. “The rules for nominations and nominations are clear. Acting President Rosenworcel is running out of time, and we have yet to see any names proposed by the President. If a GOP majority occurs, it will be because the Biden administration and the Senate failed to act on time. “

Although Biden yesterday appointed a new commissioner for the Federal Trade Commission, advocacy groups closely following the FCC are still unsure when the FCC’s choice will be announced by the White House. Lewis told Ars today that the groups are “still in the dark. I know there is a lot of talk about how the infrastructure package plays out in when Biden can announce. It must have been. meaning to me. But otherwise, we don’t know. “

Biden took 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 did not choose a permanent head for the Commerce Department’s National Telecommunications and Information Administration, and the delay is “the longest since the agency was established in 1978,” wrote the Post.

Biden’s potential choice was opposed in the Senate

Blair Levin has been following and participating in FCC developments for decades. He was the FCC’s chief of staff to President Reed Hundt in the 1990s, he was the official who oversaw the development of the FCC’s national broadband plan published in 2010, and he is now a senior researcher at Brookings. Institution and political analyst for New Street Research. . In July, Levin wrote that the potential appointment of longtime consumer lawyer Gigi Sohn “sparked enough opposition in the Senate that she was no longer at the top of the rankings, leaving the situation darker than ever.” . Levin further noted that while “Acting President Rosenworcel continues to enjoy strong support from the Senate, her failure to secure the nomination after more than six months suggests to us that there is some internal opposition in the White House. But there is no clear precursor to replace it. . “

Levin told Ars he had no solid information on who Biden would choose or when he would make an announcement. Like Lewis, he says Biden’s delay lasted so long that it’s now possible the GOP will get a majority in the FCC in January. “Yes, there is a real possibility that Democrats will never get a majority and even end up in the minority,” Levin told us.

Free Press vice chairman of policy and general counsel Matt Wood has said Biden is pulling him closer “than anyone would like,” but still thinks Democrats are likely to avoid the worst of it. case. In December 2020, Wood pointed out that the Republican majority in the then Senate had accelerated the confirmation of Trump’s candidate Nathan Simington in order to create the 2-2 stalemate for the FCC. The confirmation came nearly three months after then-President Donald Trump made the nomination, which is not atypical, but Republicans accelerated 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 big time in American governance, but Simington’s timeline last year shows that these things can move faster than they usually do.

Biden and Senate leaders disagree

The candidate at the top of Biden’s list is unknown, and he is apparently waiting to be able to agree with the Democratic Senate leadership on the composition of the expected 3-2 Democratic majority. Ideally, Biden would nominate two Democrats simultaneously, and the Senate would combine the nominations and speed up their approvals.

Democrats could already have an FCC majority if Biden had prioritized a nomination and settled on a choice accessible to senators when he was inaugurated in January or even March, April or May. A September 2020 Protocol article – two months before Biden defeated Trump in the election – listed 14 potential candidates with experience in the FCC or in the telecommunications industry.

“There is a long list of Democrats with FCC experience, and a number of them are people of color, which will certainly be a factor for Biden if he is elected; several insiders have said being a white man would be just disqualifying for first place in the FCC under a Biden administration, ”Protocol wrote in this article just over a year ago, noting that there was already a lot of speculation about the choice. by Biden.

FCC steps back in the Biden era

The deadlocked FCC plays a reduced role in the Biden administration. In contrast, the president has kept the Federal Trade Commission in its entirety, and the choice of Lina Khan as president of the FTC promises to transform that agency into a more aggressive antitrust regulator. But the FTC is focused on Big Tech and must oversee competition in many industries. The FTC does not have the telecommunications expertise of the FCC and will not devote as much time or resources to broadband consumer protection as a fully staffed FCC.

Even on broadband, the FCC is apparently losing some of its influence. The current infrastructure investment and jobs law, the result of Biden’s bipartisan deal with Congress, would spend tens of billions of dollars on broadband deployment. But the legislation’s $ 42.45 billion broadband equity, access and deployment program subsidies 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 forced Rosenworcel to ‘fix’ mistakes that would send money ‘ to car parks and well-served urban areas ”. Levin recently said the bankruptcy of the rural fund created a sense that Congress “cannot trust the FCC,” according to a Telecompetitor article.

“A great missed opportunity”

The FCC has important things to do even with a 2-2 stalemate, like handing out new emergency broadband grants that Congress created in response to the pandemic. Controversial tasks such as restoring net neutrality rules or the various other consumer regulations and protections eliminated by the Trump-era FCC would require a Democratic majority.

Biden recently urged the FCC to lower internet prices, stimulate competition, and generally overturn many of the Pai-led FCC rulings that have benefited internet service providers rather than internet users. . But Biden’s inaction is the main thing stopping the FCC from achieving White House broadband goals. Biden may have faced resistance from the Senate behind the scenes, but he could have chosen to send nominations to the Senate even without a guarantee that they would be approved.

“Not sitting on a full committee this year could be a tremendous missed opportunity for the Biden administration to move forward on the goals it has set for itself to completely bridge the digital divide and protect an open Internet.” Lewis told Ars. “This work takes time, and monitoring the FCC from a Congress in re-election mode in 2022, or with a new roster in 2023 could disrupt this important work.”

The FCC can’t vote on anything controversial

Wood noted that the FCC often has party line votes on topics that are only controversial in the Beltway, such as municipal broadband networks, which are supported by Democratic and Republican voters despite Republicans in Congress trying to ban public networks. Likewise, Pai led a 3-2 vote to repeal the net neutrality rules even though most Republican voters supported the regulations.

With a 2-2 standoff in which the two Republicans generally clash with Democratic priorities, Wood said the FCC “can’t really move forward on anything less controversial within the ring road. “even though these policies are supported by a large majority of Americans.

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