Rosenworcel Taking On Fewer Items at Meetings Than Predecessor Pai

The number of items the FCC is considering at its monthly meetings has slowly declined in the two years since Jessica Rosenworcel was designated to lead the agency. The January meeting was over in about half an hour and had two items for votes. Similarly, Rosenworcel has teed up just two items for this month's meeting. A review of the record found the FCC tackled 59 items, large and small, at meetings the first year under Rosenworcel. That was down to 42 in year two. In more than half the meetings in year two, commissioners tackled three or fewer items at the meetings.

Rosenworcel followed an unusually busy chairman, Ajit Pai, who had the benefit of leading a 3-2 majority throughout his chairmanship. It's been 2-2 during the whole of Rosenworcel's tenure. Pai's first year as chairman saw 81 meeting items, with 79 in year two. The Rosenworcel commission had more items than the Tom Wheeler commission, which totaled 69 items the first two years. Under her, tentative agendas averaged 5 items in 2022, 5.91 items in 2021. Some industry observers say Rosenworcel may be struggling to find consensus items on which she doesn’t have to make concessions in year three of a 2-2 FCC.

“The Commission has delivered and will continue to deliver on a robust agenda, whether during Open Meetings, on circulation, on delegated authority or through non-regulatory actions,” an FCC spokesperson emailed.

Industry officials told us the FCC is keeping them busy for the most part, especially on closing the digital divide, from the push for better broadband maps to the affordable connectivity program.

“It’s sad -- there’s so many things they could and should be doing,” said former FCC acting Chairman Michael Copps, Rosenworcel’s onetime boss. Rosenworcel is “doing as much as can be done with a 2-2 commission,” and accomplishing a great deal in broadband infrastructure, but the agenda would likely be very different with a Democratic majority, he said.

Gigi Sohn should be confirmed, so the FCC is “freed up” to act, Copps said. The continuing delays in her confirmation aren’t happening in good faith, he said: “I don’t know what else there is to learn about Gigi Sohn” (see 2302030073).

The FCC may be “running short on consensus items” after two years of a 2-2 split, emailed Jim Dunstan, TechFreedom general counsel. Some items that might be able to “make it over the line” if Rosenworcel offers Republicans concessions “are now being held on the assumption that we're just a few short days/weeks/months/whenever from having a third Democrat, where compromise is no longer needed,” he said. If Sohn or another Democrat is confirmed “we'll see a floodgate” of 3-2 votes, he predicted. “Whether the agency … can weather that flood of items is a good question,” he said.

Pandemic Trend

The trend was for shorter meetings throughout the COVID-19 pandemic, “so I don't think it's too surprising that they're remaining shorter now,” said Joe Kane, Information Technology and Innovation Foundation director-broadband and spectrum policy. Kane finds it interesting that “there seem to be fewer items moving to final orders than usual” even though “most votes were bipartisan, even when the commission was fully staffed.” Partisanship may not be “the biggest explanation,” he said.

Kane noted Rosenworcel has undertaken some “significant” internal restructuring, which could be taking staff time from other issues. “It's also possible that more work is being done at the agency and office level that doesn't need to make its way to an open meeting agenda,” he said.

The challenge isn't coming up with items on which commissioners can agree, emailed New Street’s Blair Levin: “The challenge is looking forward and identifying what policies are critical to making communications faster, cheaper and better for all Americans and starting a productive debate.” Levin noted more than 40 million Americans “may have broadband that is slower, more expensive and worse, if they have it at all” when the ACP runs out of funds next year. What is the FCC doing to make sure that doesn't happen? he asked.

The agency has been accomplishing big things without a majority, but those accomplishments would have been even stronger without the need to make concessions to Republican members, said Free Press General Counsel Matt Wood. “There are some things that have been weakened” and it’s not clear what the agency can do in controversial proceedings such as the one on equal employment opportunity data, he said. The agency can function at 2-2 but not without hard choices that a Democratic majority wouldn’t have to make, he said.

FCC watchers on the right don’t believe the 2-2 commission has been paralyzed. “The commission has been able to focus on the ongoing work that needs to be accomplished like spectrum matters and broadband mapping, while not getting distracted by controversial matters like 'net neutrality' that are completely unnecessary for the agency to undertake,” said Free State Foundation President Randolph May.

Succeeding Through Cooperation

The FCC is mostly showing it can succeed through cooperation, said Jonathan Cannon, R Street fellow-technology and innovation and a former acting legal adviser to Commissioner Nathan Simington. The FCC “has avoided political fights and worked to fulfill the agency's mission to work for the public interest,” Cannon said. While it’s more difficult to find agreement in some areas, like digital discrimination, “on matters of spectrum, deployment and more, the agency has demonstrated … resiliency and hard work of the staff,” he said.

Those who argue the FCC is neutered at 2-2 are “hyperbolic naysayers,” said Digital First Project Executive Director Nathan Leamer, a former aide to Pai, in a blog post. “In a time of partisan gridlock where Republicans and Democrats can’t even agree on the color of the sky, the Federal Communications Commission has been a pleasant surprise of bipartisanship -- accumulating a long laundry list of bipartisan accomplishment.”

“Yes, the FCC at 2-2 has accomplished a lot of things, but there are things you can’t do without a fifth vote,” Free Press' Wood said. “The 2022 quadrennial review is barely out of the gate, who knows what can be done there at all,” he said.