Nominations Chatter Fuels Talk of State Regulators Joining FCC

Congressional Democrats are returning from a month-plus recess more willing to vent frustrations over President Joe Biden’s delay in announcing nominees to two Democratic FCC seats. They cite growing concerns the sometimes-lengthy Senate confirmation process could result in the current 2-2 split commission switching to a 2-1 GOP majority in January. Acting Chairwoman Jessica Rosenworcel’s term expired in June 2020, meaning she would have to leave Jan. 3 absent Senate reconfirmation.

Stakeholder attention has turned to Santa Clara University law professor Catherine Sandoval, a former California Public Utilities Commission member and former head of the FCC Office of Communications Business Opportunities, as a potential contender for an FCC slot. Her prospects for nomination are as unclear as those of other contenders who have drawn attention this year. Some former state regulators would welcome the renewed presence of one of their own on the commission.

“We’ve got to get a full FCC” complement in place and “fully functioning, so we can get on to business,” said Senate Commerce Committee Chair Maria Cantwell, D-Wash., in an interview. She believes action on the nominations would be important regardless of implications for the FCC’s partisan composition. Democratic Commissioner Geoffrey Starks would become acting chair in January if Rosenworcel leaves without a confirmed permanent head. He would have nominal control of the agenda and couldn’t pursue new policies without buy-in from at least one GOP member, officials said.

There’s still enough time left on the legislative calendar to confirm new FCC nominations this year if Biden names his picks soon, Cantwell said: Senate leaders are willing to fast-track their process if needed to prevent a GOP majority on the commission and bring back Democratic control. Biden’s delay has surpassed that of former President Jimmy Carter, who didn’t nominate Charles Ferris as FCC chairman until Sept. 12, 1977.

“We need a full, functioning five-member” FCC in place and it’s concerning that hasn’t happened this late in Biden’s first year in office, said Senate Communications Subcommittee Chairman Ben Ray Lujan, D-N.M.: “This is a priority” that requires immediate action. It remains “critically important” that Biden renominate Rosenworcel and make her permanent chair by Dec. 31, Lujan said.

'Frustrating'

“I’m very concerned about the potential for Republican domination” at the FCC if Democratic nominees don’t secure confirmation by the start of January, but Biden is “very much aware of that danger,” said Senate Consumer Protection Subcommittee Chairman Richard Blumenthal, D-Conn. He believes the White House will forestall such a scenario. That needs to happen “sooner rather than later” given there's limited time before Rosenworcel would have to depart, Blumenthal said. He backs keeping Rosenworcel at the helm.

“It’s very frustrating” that this administration hasn’t announced FCC nominations and “many of us have expressed our concerns that this needs to get done soon,” House Communications Subcommittee Chairman Mike Doyle, D-Pa., told us. “I guess this hasn’t been at the top of the list” for the White House. “I’m not the only one” who has raised concerns that further delays will result in a Republican commission majority, he said: “That just can’t happen.”

Rosenworcel “is an excellent member of the FCC and an excellent acting chair,” Doyle said. She’s “someone who could easily be permanent chair, but” it’s going to “take a Senate confirmation.” It “wouldn’t bother me if she stayed on as chair, but I want her to stay on the commission” regardless, Doyle said. “I’ve made that known” to the White House.

Senate Commerce ranking member Roger Wicker, R-Miss., believes it’s unlikely the White House and Senate Democrats will allow further delays that would usher in a GOP FCC majority, though “for whatever reason the process has been really slow.” He expects this administration would strongly urge Cantwell and other Democrats to fast-track confirmation of FCC nominees and that party leaders would act to make that happen, as Republicans did last year to add GOP Commissioner Nathan Simington after then-President Donald Trump lost re-election (see 2012020069).

“Even if appointments were announced today, it will be hard to get the nominees confirmed by year's end,” said Cooley’s Robert McDowell, a former FCC commissioner: “The first year of the Biden administration could pass without any big bold policy initiatives being launched.”

Sandoval

Sandoval has drawn attention because of her past role as an FCC official and her support for using Communications Act Title II to justify net neutrality rules (see 1410170028) and other Democratic telecom policy priorities, lobbyists said. Sandoval led the FCC Office of Communications Business Opportunities 1995-1999, starting under then-Chairman Reed Hundt. She was a CPUC commissioner 2011-2017 and is a past member of the Federal-State Joint Conference on Advanced Telecom Services. Sandoval didn’t comment.

Sandoval, who was also viewed as a potential FCC pick if Democrat Hillary Clinton had won the 2016 presidential election (see 1611070063), could now be an alternative to Georgetown Law Institute for Technology Law & Policy’s Gigi Sohn (see 2107090063), lobbyists said. Picking Sandoval, who is Latina, would also assuage members of the Congressional Hispanic Caucus who have been pushing for the nomination a Latino commissioner (see 2104280057). Several other Latino candidates have also been in contention.

Sandoval “has a very strong resume and is a very strong candidate” who “should be considered” for an FCC seat, Lujan told us: “I would not be surprised if she was a finalist.” He noted the “exemplary job” former New Mexico Public Regulation Commissioner Gloria Tristani did as an FCC commissioner 1997-2001. State regulators have a “substantive understanding of the technical aspects of the responsibilities” the FCC has at the federal level that would serve them well as federal regulators, Lujan said. He was a New Mexico PRC member before his 2008 election to Congress.

Officials noted the field of potential nominees hasn’t narrowed considerably. DLA Piper’s Smitty Smith and outgoing Senate Commerce Democratic aide John Branscome are taking on new roles (see 2109130062). Some lobbyists question whether they have ruled themselves out of the running. Branscome and Smith didn't comment.

“The only thing I have heard is vague and speculative,” said Benton Institute for Broadband & Society Senior Counselor Andrew Schwartzman. “Sandoval certainly has credentials to be a very strong candidate, but so do several others.”

States

Officials cited Biden’s recent nomination of District of Columbia Public Service Commission Chair Willie Phillips to the Federal Energy Regulatory Commission as an example of the administration’s willingness to name a state regulator to a federal role. FERC may add state commissioners more often than the FCC because of state telecom deregulation and energy usually being a much larger part of state officials’ portfolios, said former FCC Commissioner Mignon Clyburn.

Naming a veteran state regulator to the FCC could enhance cooperation with state officials, Clyburn told us: She believes her 11 years’ experience as a South Carolina Public Service Commission member was an advantage when she became federal chair of three federal-state joint boards. “The relationships were established,” Clyburn said. State commissioners tend to be less political, she said: At NARUC meetings, “I really had to think twice” about which colleague belonged to which party.

USF contribution could get more attention with a state member on the FCC because it has been higher on state commissions’ radar than at the FCC, Clyburn said. “This is where the states are the canaries in the coalmine.” Multiple states have made intrastate USF contribution changes and USF Joint Board state members submitted a proposal for the federal program that the previous FCC never took up.

“State commissioners tend to be closer to the average person,” said Stinson's Russell Frisby, a former Maryland Public Service Commission chairman. He told us people used to come up to him at supermarkets to ask utility questions. Politics may be less intense in states, but “clearly anyone ... appointed to the FCC is political,” Frisby said: Many state members aren’t as wired into federal telecom issues, but recent NARUC resolutions show much interest in federal broadband programs like the emergency broadband benefit and the Rural Digital Opportunity Fund.

The CPUC is “institutionally and structurally different” from “almost any other state commission in the nation,” said Wilkinson Barker attorney Raymond Gifford, former Colorado PUC chairman. “While most state commissions have only very thin involvement with communications regulation these days, California has remained relatively involved,” he emailed: Sandoval, like Clyburn before her, would probably “be more attuned to the federalism issues and prerogatives that often rankle states, and probably more solicitous to state regulatory efforts.”

State regulators “are ‘where the rubber meets the road,’” emailed former FCC and ex-California Public Utilities Commissioner Rachelle Chong. “On broadband infrastructure issues, you will have a deeper understanding of the issues that are encountered.”