FCC Tie Likely to Affect House Commerce Oversight Approach if GOP Wins Majority

The FCC’s persistent 2-2 tie since the beginning of the Biden administration and the resulting dearth of partisan Democratic telecom policy actions will likely blunt the level of criticism Chairwoman Jessica Rosenworcel and the commission will initially face from House Commerce Committee Republicans during the next Congress if their party wins a majority in the Nov. 8 election, said ex-panel Chairman Greg Walden, R-Ore., and other observers in interviews. But Commerce GOP oversight of the FCC would likely ratchet up significantly if and when the commission returns to a 3-2 Democratic majority, officials said. Regardless, there will be a major emphasis on whether the FCC is abiding by the Supreme Court’s embrace of the "major questions” doctrine in its West Virginia v. EPA ruling (see 2206300066), officials said.

House Commerce Republicans’ primary focus would be on ensuring the panel holds FCC oversight hearings “far more frequently” than it has over the course of this Congress, said House Communications Subcommittee ranking member Bob Latta of Ohio in an interview. The subpanel’s first and thus far only commission oversight hearing in this Congress happened March 31 (see 2203310060) amid pressure from Republicans; the last panel before that was in September 2020. “Our duty” will be to bring “all agencies” under House Commerce’s jurisdiction “all the time” during the next Congress, Latta said: “If we don’t, we’re not doing our job” properly.

Latta expects an early focus would be on the FCC’s administration of broadband funding included in COVID-19 aid packages and the Infrastructure Investment and Jobs Act, including the $14.2 billion affordable connectivity program. “When you look at the amount of funding” Congress has allocated since the beginning of 2020 to ensure “we’ve got broadband across the country, that’s a lot of money,” he said: “We’ve got to make sure those dollars are being spent wisely and that we target unserved areas first. We don’t want to see buildout in underserved areas” prioritized, or the sort of overbuilding of existing networks “that we saw during the Obama administration” via the Broadband Technology Opportunities Program.

Retiring House Communications Chairman Mike Doyle, D-Pa., and others believe there won’t be much for House Commerce Republicans to criticize Rosenworcel over early in the next Congress because she has had to rely on bipartisan consensus to conduct business during the 2-2 split.

The FCC deadlock has already lasted far longer than telecom sector stakeholders expected, initially because President Joe Biden waited until late October 2021 to renominate Rosenworcel and select Gigi Sohn to become the commission’s third Democrat (see 2110260076), officials said. The Senate swiftly confirmed Rosenworcel, but Sohn’s confirmation process has been stalled for more than seven months (see 2206070046). Senate Democratic leaders are hopeful a confirmation vote could happen during the upcoming lame-duck session (see 2209130065), but lobbyists believe Sohn’s chances will hinge on Democrats maintaining the chamber’s current 50-50 split or gaining an outright majority.

Deadlock Politics

House Commerce GOP leaders are “teed up and ready to go” and “will probably invite the FCC up on a more regular basis” than happened during this Congress, Walden told us. The tie means “there haven’t been initiatives that go too far one way or the other.” That likely means Republicans initially will focus more on “not some new policy that was crammed through on a partisan basis, but instead on how’s the commission running, what the issues will be going forward,” he said.

“Given the enormous sums of money that have flowed through the commission” during the COVID-19 pandemic, “logically there’d be oversight” of both ACP and the emergency broadband benefit, Walden said. He expects the panel to probe the FCC’s spectrum pipeline plans, depending on how congressional negotiations during the lame-duck session on a spectrum legislative package play out (see 2209300058), along with continued scrutiny of the commission’s broadband coverage mapping practices.

“Republicans are going to be more aggressive,” but the FCC will be less of a “target-rich environment” for House Commerce GOP members’ ire until a 3-2 Democratic majority emerges, said consultant Chuck Flint, former chief of staff to Sen. Marsha Blackburn, R-Tenn. Rosenworcel “has a choice. She can carry the torch for ideological warriors … or she can work across the aisle and continue to solve commonsense problems” as she has throughout the 2-2 split. “If the FCC goes out of its lane, Republicans are going to be right to put them back into that lane,” he said.

Some veterans of past majority-Democrat FCCs are more doubtful. “Oversight is increasingly performative, designed for political rather than legislative purposes” regardless of which party is in power, said Brookings Institution Senior Fellow Blair Levin, chief of staff to then Democratic Chairman Reed Hundt. “It’s hard to see how the Republicans would feel any joy in holding oversight over the things” the 2-2 FCC approved unanimously. “They’re only going to complain about things that were done on a partisan basis,” which Rosenworcel hasn’t been able to do thus far, he said.

If the Senate confirms Sohn or another Democrat, “oversight will be more interesting,” Levin said. A shift to a 3-2 Democratic majority would likely mean work on the party’s telecom policy priorities, including new net neutrality rules that match or go beyond the rescinded 2015 order and Communications Act Title II reclassification of broadband, would be on the agenda. “It’s really only when you have a Democratic majority doing things” on a partisan basis that GOP oversight will ramp up, he said.

Congressional Authority Factor

Doyle believes the letters Commerce Committee ranking member Cathy McMorris Rogers, R-Wash., sent to the FCC and other agencies in September warning them on adhering to West Virginia (see 2209290062) aren’t necessarily a harbinger of how a majority-GOP panel would actually handle oversight. “It’s that time in a midterm year,” in the weeks immediately before the election, when “people say things for political reasons,” he told us: “I don’t even pay attention to stuff like that. It’s a meaningless comment that won’t result in anything concrete.”

A majority-GOP House is likely to conduct “rigorous oversight” of the overall Biden administration that will generally be politically motivated, but within Commerce the Republicans are “more interested in a substantive discussion of how agencies use their statutory authority to conduct rulemakings, including at the FCC,” said Tim Stretton, Project on Government Oversight Congressional Oversight Initiative director. “Congress should be a check on the executive branch in making sure the FCC and other agencies don’t abuse their authority or interpret their statutory authority too broadly,” so Rodgers’ letters were a “valid reminder.”

Walden and other Republicans believe West Virginia could be the primary lens through which House Commerce GOP do oversight if they win control. “The legislative branch always should be vigilant in overseeing agencies that go beyond their scope,” Walden said: “For too long courts gave agencies too much discretion under Chevron deference and agencies took advantage of it.”

Walden cautioned lawmakers to also learn from the case, and write laws “more precisely so as not to give too much flexibility to the executive branch.” There have been many instances where a topic “is really hard” and lawmakers said “let’s have the expert agency figure out how to do it,” he said: “And then what tends to happen is you don’t like what the agency did, and then you beat them up for going in a direction you didn’t want them to go in.”

The Supreme Court gave “Congress an additional tool to conduct oversight” of federal agencies via West Virginia and Rodgers made an “astute move” in putting the FCC “on notice that Republicans are going to be watching closely if the commission gets out of its lane,” Flint said. Rodgers is “taking a proactive approach,” which “sets a tone. The feeling amongst Republicans in years past” is that Democrats have “shown an appetite for stretching the boundaries in agency rulemaking as a means to circumvent Congress,” including in the 2015 net neutrality rules.