Some Consensus Possible With 2-2 FCC Amid Gridlock Concerns

The upcoming shift to a 2-2 split FCC at the start of President-elect Joe Biden’s administration doesn’t necessarily have to mean total gridlock, as those opposed to Senate confirmation of Nathan Simington as commissioner are forecasting, officials and FCC observers told us. They do believe FCC Democrats’ ability to move on big-ticket policy priorities, like bringing back the rescinded 2015 net neutrality rules, will be hindered until the Senate confirms Biden’s to-be-named nominee for the seat held by Chairman Ajit Pai. The Senate confirmed Simington Tuesday with unanimous Republican support and similarly uniform Democratic opposition (see 2012080067).

Senate Republican leaders told us they’re eyeing the possibility of seeking telecom policy concessions from Democratic FCC nominees to secure their confirmation if runoff elections for both of Georgia’s seats in the chamber result in the party retaining the majority. Democrats have raised concerns that Simington’s confirmation this year would leave Biden’s nominee for the third Democratic FCC seat and sitting Commissioner Jessica Rosenworcel without a natural Republican pick to advance as a pair through the Senate (see 2012020069). Rosenworcel’s term ended June 30, but she can remain through Jan. 3, 2022, unless the Senate confirms a replacement.

Kevin Martin's chairmanship offers a model for how the FCC head can still get things done with a 2-2 split industry lawyers said. Martin was able to negotiate agreements with Democrats before Robert McDowell joined the FCC as a third Republican vote in 2006. Action had to wait on more controversial items (see 0605300131).

“Throughout its history, the FCC has been at less than a full complement of commissioners and ‘deadlocked’ at 2-2 many, many times,” McDowell told us: “It has always been able to maintain its productivity, and there is no reason to believe that it will be fundamentally impaired at 2-2 in 2021.” McDowell noted he was twice the lone Republican on a three-member FCC, and both times, it completed many items, often 3-0.

Deadlock has the potential to both help and hinder prospects for Rosenworcel and others seen as contenders to be Biden’s pick to lead the FCC (see 2011160048), lobbyists and officials told us. Biden wouldn’t have to immediately renominate Rosenworcel for her to become the commission’s non-temporary head, but her control of the gavel could be brief if Republicans decided to stonewall her reconfirmation, lobbyists said. Rosenworcel has drawn support from some Senate Democrats, including Commerce Committee member Richard Blumenthal of Connecticut.

The National Education Association backed Rosenworcel Wednesday for chair. Rosenworcel’s “long-standing work to close the Digital Divide and help connect students for education makes her the right choice,” said NEA President Becky Pringle in a statement. “She has championed" providing internet for all students, including “the efforts to update and expand the E-Rate.”

Senate Strategy

Senate Republicans recognize that Biden is entitled to have three Democrats on the FCC, but they haven’t committed to allowing that person or Rosenworcel to move without a bipartisan pairing, as they did with Simington, said Senate Majority Whip John Thune, R-S.D., in an interview. “We just wanted to make sure” Simington was confirmed now so “we weren’t at a disadvantage going into next year,” said Thune, who also chairs the Communications Subcommittee. “Depending on who the nominee is, when the time comes, we’ll give that person fair consideration and process” the confirmation “like anything else.”

It “would be ideal” if Biden’s nominee to the Pai seat and Rosenworcel would make commitments to the Senate on their views about net neutrality and other hot-button policy matters, Thune said. “I’m sure the confirmation hearing” for Biden’s nominees “would be interesting for that reason, among others. For sure net neutrality’s going to be a hot issue” that would be on Senate Commerce Committee Republicans’ radar (see 2010290001).

“I would like to get a nominee over” at the FCC “who will say that Congress needs to act on” net neutrality “so we don’t have this consistent state of uncertainty from administration to administration,” Thune said.

Commerce Chairman Roger Wicker, R-Miss., wouldn’t say whether he wants Biden’s Democratic FCC nominees to make policy commitments. “But we really do need to speak legislatively” on net neutrality, he said. “It’s unseemly for the FCC to go back and forth on” that issue and reclassification of broadband as a Communications Act Title II service “based on who the president is. We need to get away from that and come to a consensus” in Congress. He and Sen. Kyrsten Sinema, D-Ariz., began working on a net neutrality compromise measure last year (see 1903120078), though that has since slowed.

Senate Democrats we spoke with wouldn’t say whether they see an FCC deadlock putting more pressure on them to seek a net neutrality compromise.

The Biden administration just needs to “get a nominee” to Pai’s seat over to the Senate “right away” so the chamber can moot concerns about the FCC majority, said Commerce ranking member Maria Cantwell, D-Wash.

“I’m not willing to entertain the hypothetical of a deadlocked FCC, and I’m certainly not willing to entertain the idea that that will accidentally help us to do policymaking,” said Communications ranking member Brian Schatz, D-Hawaii. “We have to get a full complement at the FCC” early in the Biden administration.

Republicans have the advantage that neither GOP Commissioner Brendan Carr nor Simington faces another confirmation vote soon, and a “deadlock could last a bit longer than some are expecting,” said R Street Institute Technology and Innovation Policy Fellow Jeffrey Westling. Democrats “may be willing to make concessions on things like a net neutrality law that is palatable for Republicans in exchange for agreement on an additional commissioner,” he said. Biden could also seek a nominee more Republicans would support, he said.

Cooperation vs. Resistance

Federal agencies are running into a couple different kinds of deadlock “with great frequency” -- one being no clear majority on an agency’s board, the other being the increased difficulty in confirming appointees to those boards, said George Washington University law professor Richard Pierce, who has expertise in administrative law and regulation. The increasingly politically polarized environment in Washington could mean Biden “could have a hell of a problem” getting GOP confirmation of any appointees, he said.

Pierce said political polarization also is leading to fewer compromises and agreements across the aisle at agencies. “Compromise has become a dirty word,” he said: That's resulting in a growing number of situations where changing presidential administrations means particular sets of regulations pingponging, such as likely will happen with net neutrality, he said.

“If you have Republicans who are willing to work within the context of a Biden agenda, so that things that are important to Democrats move forward, then, sure, we’ve had 2-2 commissions,” said Public Knowledge Senior Vice President Harold Feld. “It’s not like you have to declare war right away, but you can’t normalize the Republican control of the agenda,” he said. “You have to be willing to play hardball if you’re going to get things accomplished, and that means being willing to do things that are going to be painful to Republicans and Republican constituencies and be willing to stand up to the inevitable howling.”

“Bigger problems will arise when there is not fundamental agreement,” said Benton Institute for Broadband & Society Senior Counselor Andrew Schwartzman. “Over the last decade or so, there have been many more major issues where the vote has not been unanimous,” he said. “Where the items are time sensitive, a new chair may have to make significant concessions.” Compromise may not be possible on everything, he said: “This is especially problematic for transactions that require a majority vote. Uncertainty alone might kill off some deals.”

Pai led through a bipartisan approach that “Rosenworcel is likely to continue and expand,” said University of Florida professor Mark Jamison. “Where there are partisan divisions, she can charge the Office of Economics and Analytics with research that can clarify the tradeoffs.”

The FCC has traditionally worked mostly in a bipartisan fashion, said Citizens Against Government Waste Vice President-Policy and Government Affairs Deborah Collier. “For spectrum auctions in particular, there has been long-standing and often unanimous agreement,” she said. “The FCC is far more likely to be able to function with a 2-2 tie than many other independent agencies.” Net neutrality is likely to be a focus, “but the solution to this issue must be legislative,” Collier said.

“Thankfully there is a broad bipartisan consensus on some of the more pressing issues in regards to spectrum especially,” emailed Taxpayers Protection Alliance Vice President-Policy Patrick Hedger.

“Plenty can get done with a 2-2 FCC, but mainly the sorts of things that are not highly partisan in nature,” said Phoenix Center Chief Economist George Ford: “The Senate, if it remains Republican, cannot stall an appointment forever.” Ford expects the FCC to seek Title II reclassification. “Drafting a Title II NRPM, and even the order since the decision has already been made irrespective of the evidence, will start immediately, and will be on the agenda posthaste after securing a Democrat majority,” he said.

Industry

Broadcasters don’t see a deadlocked FCC as a problem. They’re skeptical that it would be deadlocked for long. “No news out of the FCC is good news,” said Robert Folliard, Gray Television senior vice president-government relations and distribution. A deadlocked commission lowers the chances of “re-regulatory” broadcast rules emerging. “It has happened before, and nobody went apoplectic,” said Anne Crump, broadcast attorney with Fletcher Heald.

Facility improvements, transaction approvals and enforcement actions can all happen at the bureau level, so broadcasters don’t actually need a great deal of intervention from the eighth floor to go about their business, said radio attorney John Garziglia of Womble Bond. Transactions that seek waivers of ownership rules may need the full commission to act, but such deals faced an uphill battle even at the current Republican-controlled commission, broadcasters said. The fate of Scripps/Ion is unlikely to be changed under a deadlocked FCC, attorneys said.

The one major rulemaking broadcasters are expecting is on the quadrennial review, and that’s dependent on how the Supreme Court rules on the FCC’s Prometheus IV appeal. Broadcasters expect the court to restore the Pai FCC’s deregulation, such as the eight-voices test, and a deadlocked FCC would be less likely to find a way to restore such rules or mitigate them.

The satellite industry likely will see 4-0 decisions most of the time, instead of 2-2, since satellite issues are generally nonpartisan, said Satellite Industry Association Senior Director-Policy Therese Jones. “It’s mostly one fewer person to talk to” in ex parte meetings, she said, noting that action on the orbital debris proceeding isn’t expected soon anyway.