Senate Confirms Starks and Carr, Ensuring Stability for FCC

The Senate confirmed FCC Commissioners Geoffrey Starks and Brendan Carr to new five-year terms Saturday, providing stability for the agency and assuring a 3-2 Democratic-controlled commission through the end of the current administration. Two big, contentious items are already in the pipeline -- a net neutrality NPRM at the commissioners' Oct. 19 open meeting and a Nov. 15 statutory deadline to issue digital discrimination rules, with a commission meeting also scheduled for that day. If the Senate hadn't acted, Starks would have had to leave in January and the FCC would have been back to a 2-2 split between Democrats and Republicans.

Regulatory lawyers said FCC staff has been working quietly on net neutrality and digital discrimination, getting ready for a 3-2 commission, though it’s unclear in how many other areas that has been the case. Chairwoman Jessica Rosenworcel scheduled votes on net neutrality and six other items for the Oct. 19 meeting, the first with new Commissioner Anna Gomez (see 2309280071).

“On a lot of issues, it’s not like going back to square one and starting over,” emailed former Commissioner Michael Copps. “The agency has data and records galore, so these can be deployed and, if necessary, quickly updated. Net neutrality shows that. Ditto for bringing back some of the media regs … abandoned [during the last administration]. And getting serious about diversity across the board.”

"Not surprising that items have been held out awaiting a new majority and the more liberally minded outside the agency likely have a laundry list of ideas that are not about bringing progress but scoring points with new burdens, obligations, requirements, limits, restrictions, inquiries, etc.," emailed former Commissioner Mike O'Rielly. "For a telecom industry in desperate need for policy to catch-up with market realities, like stripping away the old regulatory mindset and friendlier approach to M&A, it could be a cold winter. Beyond an expected backwards media ownership approach, it's more often going to be tilting the directions of items than springing new ones and attempting to expand jurisdictional boundaries."

“This certainly opens up opportunities for the chairwoman to move on more controversial issues,” said Digital Progress Institute President Joel Thayer. “There are a lot of heated spectrum” items “like 12 GHz, that the FCC can move on,” he said. Thayer said he has been told staff has focused a lot on digital discrimination, though he’s not sure “it’s as baked as net neutrality was.”

The FCC has “been ready to go to meet the statutory guidelines” on digital discrimination, but “the scope of the order will change significantly” from what a 2-2 commission would have been able to do, said Jonathan Cannon, R Street fellow-technology and innovation and a former aide to Commissioner Nathan Simington. “I could also see Rosenworcel looking at expanding E-rate, which she has been hoping to do for a long time,” Cannon said: "I'm sure she's got ideas for the next few months. I think she'll start moving rapidly.”

Divided Votes Coming

"As evidenced by the chairwoman's rapid release of the [Communications Act] Title II NPRM, it is likely that for months other bureaus have also been busy drafting items that require 3-2 votes," said Cooley's Robert McDowell, a former commissioner. "The agency will be experiencing many divided votes deep into 2024," he predicted.

Rosenworcel is already getting advice from her fellow commissioners on what they consider important areas for FCC focus.

Carr wants more focus on spectrum. “We have slowed down -- we are stalling out,” he said last week at the Mobile World Congress in Las Vegas: “The question is are we going to re-accelerate and get going or are we not?” The U.S. spectrum “deficit is real,” with federal government users having about 12 times the amount of spectrum that commercial operators do, he said.

“Let's keep pushing on access, on adoption, on affordability,” Starks said at MWC. The Affordable Connectivity Program has surpassed more than 21 million enrolled households, he said: “It's imperative that we continue to build on that progress and continue to fight for a stable future for the program.” The FCC also needs “to keep pushing on spectrum” and reauthorization of its auction authority, Starks said. FCC auctions have “driven competition, unleashed new wireless technologies, allocated spectrum efficiently and improved our security,” he said.

Net neutrality and issues with a strict deadline, such as media ownership, are undoubtedly going to take up most of the agency's time in coming months, said Christopher Terry, University of Minnesota School of Journalism assistant professor-media law. The FCC is likely going to end the 2018 quadrennial review with a "milquetoast" wrap up that includes promises about expeditiously finishing the 2022 one, he said. But dramatic changes in media ownership rules are doubtful, since the agency is hamstrung by a statute that is somewhat ambiguous and by having not acted for so long that any kind of major action, making it hard to justify, he said. Realistically, the agency could have net neutrality rules adopted by this time next year, he said.

"The Chairwoman cares about making broadband accessible to everyone, regardless of where they live or who they are, so expect action on that front," emailed lobbyist David Goodfriend. "She also cares about local news and media diversity, so no one should be surprised if she takes action on a range of dockets to advance those priorities."

Joe Kane, Information Technology and Innovation Foundation director-broadband and spectrum policy said Gomez “is a smart and experienced attorney, not just a rubber stamp for a checklist of partisan priorities,” he said: “I fully expect her to exercise her own judgment in advancing consumer-focused concerns.” Rosenworcel will likely need support from Gomez, if she embraces "more extreme positions” in a digital discrimination proceeding or on other items, he said.

"We expect the commission to quickly adopt digital discrimination rules," said Public Knowledge Director-Government Affairs Sara Collins, adding the rulemaking has "been a clear priority" for Rosenworcel.

Now that there's a full commission, "we hope the FCC will take these actions" ahead of the deadline to "ensure digital discrimination regulations protect consumers and prevent inequities," said National Digital Inclusion Alliance Policy Director Amy Huffman. The FCC should "move beyond the status quo," Huffman said: "If consumers’ lived experiences shape these rules, the FCC will be more effective in preventing digital discrimination in the future." The FCC didn't comment on the status of its rulemaking.

Numerous trade groups cheered the reconfirmations, saying they clear the path to pursuing tech, media and telecom policy priorities from closing the digital divide and modernizing broadcast policies to encouraging broadband investment. Competitive Carriers Association CEO Tim Donovan said the group hopes "that in cooperation with a fully confirmed FCC, together we can make significant headway on issues ... including restoring the FCC’s lapsed auction authority and funding the ‘rip and replace’ shortfall threatening national security."

The 5G for 12 GHz Coalition expressed hope Monday that a 3-2 commission will be able to move quickly to permit fixed wireless use of the lower 12 GHz band. American Public TV Stations APTS CEO Patrick Butler said the group wants the 3-2 commission to focus on public television datacasting and how ATSC 3.0 "can help bridge the digital divide."