FCC Nominee Starks Seen Facing Pressure to Be Forceful Democratic Voice

Starks, seen as largely unknown as Enforcement Bureau assistant chief (see 1806150031), is expected to face pressure as soon as he's confirmed to be a forceful voice standing up to FCC Republicans, communications officials and lobbyists said. Commissioner Jessica Rosenworcel faced similar pressure before she was returned and has emerged as a sometimes-strong critic of moves by the Republican majority. Senators in both parties told us they also have high hopes for Starks, their visions largely reflected their political stances.

The Starks-Carr pairing cleared the GOP and Democratic caucuses’ hotline processes for allowing nominees and legislation to be approved under unanimous consent, said Hill officials in both parties. Senate Commerce staffers were “shocked” when the nominees weren't included among a raft of items Senate Majority Leader Mitch McConnell, R-Ky., cleared as he wrapped up Thursday in preparation for the weeklong July 4 recess, a telecom lobbyist said. “Everybody thought it was a done deal.” Senate Commerce didn't comment.

The items the Senate cleared under unanimous consent included the Marrakesh Treaty Implementation Act (S-2559), which eases access to written works in handicap-accessible formats for blind and reading disabled individuals (see 1806290051). Senators voted 86-11 to pass the House-approved 2018 Agriculture and Nutrition Act farm bill (HR-2), which contained several broadband-related provisions (1806220056).

What transpired after the hotlines remains unclear, but lobbyists who concentrate on either Democratic or Republican lawmakers agreed the impetus for delaying Carr and Starks reflected larger Senate political battles. McConnell and other GOP leaders ultimately decided to spike the push on Carr and Starks in favor of pushing them as part of a larger package of nominees before the August recess, said a telecom lobbyist who monitors Republican lawmakers. It’s “nothing personal [about] the two nominees, just process,” one Democratic lobbyist said. Several noted chatter about Democrats’ pique over the Senate’s confirmations process ahead of what’s expected to be an acrimonious debate over President Donald Trump’s eventual nominee to replace retiring Supreme Court Justice Anthony Kennedy (see 1806280018).

'Full Team' Coming?

There's every reason to believe the Senate will move to confirm Carr and Starks before the abbreviated August recess despite expectations that the battle over Kennedy’s successor will consume many lawmakers’ attention, lobbyists said. Thune told reporters Thursday it's important to have “a full team” at the FCC given the telecom policy issues Congress is examining.

There may be some pressure to bring the FCC back to full strength before a long-sought House Communications Subcommittee oversight hearing on the agency, which the subcommittee noticed for July 25 (see 1806050042), telecom lobbyists said.

Starks would succeed former Commissioner Mignon Clyburn for a term ending in 2022. Carr's additional five-year term would end in 2023. The Senate last year confirmed Carr to an abbreviated term ending this year (see 1708030060).

Senators' Hopes

Thune acknowledged Starks has “a lot of pressure on him over there, especially in this [political] atmosphere" to hew to a strongly partisan Democratic bent. “I hope that he’ll be a thoughtful person and be willing to consider what’s in the best interests of the consumer,” Thune told us. “He’s got a good understanding of the issues” because of his EB experience, but “he also has been involved in some of the pitched battles of the last few years. Those have been some pretty partisan fights. But I hope he will look at the facts and be able to work in a way that helps find consensus.”

Starks will advocate for Democratic-supported positions on net neutrality and USF issues, expects Senate Communications Subcommittee ranking member Brian Schatz, D-Hawaii. “The most essential aspect of being an FCC commissioner is to understand it’s not like other agencies where they get confirmed and then are never heard from again," Schatz told us. "We on [Senate Commerce] expect to have an ongoing, consultative relationship with the commissioners, and I think he understands that because he comes from the FCC.”

Senate Commerce ranking member Bill Nelson, D-Fla., told us he's confident Starks will be “an excellent” Democrat on the FCC because Senate Minority Leader Chuck Schumer, D-N.Y., strongly recommended the nominee to Trump. “He will be an activist on behalf of consumers, which I welcome,” forecast Senate Consumer Protection Subcommittee ranking member Richard Blumenthal, D-Conn. “I am not a fan of what [Pai] did” in rescinding 2015 net neutrality rules, and “they’re going to have to deal with this,” said Sen. Amy Klobuchar, D-Minn. “I would hope that any FCC commissioner would rise to the occasion.”

Independence Sought

Former EB Chief Travis LeBlanc, who hired Starks, said the nominee "would not seek to be a commissioner for fame or fortune.” Starks would "continue to do the people’s work," LeBlanc said. "Unlike many positions at the commission, the nature of enforcement is not to be in the public limelight on the day-to-day work of investigating alleged infractions." It's "plainly a mistake to assume that one has to be loud to be bold, decisive, and heard," LeBlanc said. "As Geoffrey outlined in his testimony last week, he will be guided by certain core values: connecting all Americans to safe and secure networks at reasonable charges, protecting consumers, and promoting diversity, competition, localism and innovation.”

Starks “could be someone who would step into [Clyburn's] shoes,” said Public Knowledge President Gene Kimmelman. “He seems to have a similar passion and dedication to the public interest, and a willingness to work with anyone on meaningful and principled compromises that promote it. My sense is that, without knowing his particular positions on issues, he’s a very diligent, thoughtful person who wouldn’t be doing this unless he really took the direction to promote the public interest seriously."

“I hope that the partisan divide that emerged at the FCC during the last administration comes to an end,” said Mark Jamison, University of Florida telecom professor and member of the Trump FCC transition landing team. “Ability of the agency to operate independently of political pressure is important if we expect telcos and others to make long-term investments.” Being independent is hard “because it requires commissioners to act in ways that appear disloyal to their political parties,” Jamison said: “That is what is expected of an independent agency.”

"Congress designed the commissioner positions to be somewhat insulated from external pressures, much like judgeships,” said former Commissioner Robert McDowell, now at Cooley. “Commissioners can't be fired,” McDowell said. “No commissioner has to bend to pressure. ... Once they start bending to please specific constituencies, the more they will be pressured down the road. That said, you never know how someone is going to behave and react to the high-profile nature of the job until after they take the oath."

Starks should “follow the truth, be devoutly independent and vote [his] conscience,” said Adonis Hoffman, who worked for Clyburn. “It might feel good to be the loyal opposition, but political pragmatism can be valuable in achieving your goals. Starks comes in with solid legal, policy and regulatory experience. The next step is to become a principal and pick up the mantle of leadership that many are hoping for.”

International Center for Law & Economics Executive Director Geoffrey Manne said former FTC Commissioner Joshua Wright, a Republican, set an example for Starks. “Wright was in this ‘second minority commissioner’ position when he joined the FTC,” Manne said. “No one would call him shrinking violet, and he certainly always spoke his mind. And yet, he had a very good relationship with the majority [Democratic] commissioners. He dissented at times, of course, but it was rarely anything like ‘standing up to’ the majority commissioners. He pursued his policy agenda to the extent he was able as a minority commissioner, and in speeches and the like, I don't believe he ever called out the majority.”