FCC Status Quo Likely for Now Post-Rosenworcel Confirmation

The Senate’s Tuesday reconfirmation of FCC Chairwoman Jessica Rosenworcel to another term (see 2112070029) provides more certainty for upcoming policy moves, but it isn’t likely to mean any major changes in how the agency functions because it will remain in a 2-2 tie for now, lawmakers and experts told us. Democrats are relieved Senate action forestalled the possibility the FCC would shift to a 2-1 GOP majority in January but believe the ongoing stalemate underscores the need to confirm Democratic commission nominee Gigi Sohn, whose path forward remains uncertain (see 2112010043). Republicans see the ongoing stalemate as an opportunity for Rosenworcel to continue seeking bipartisan consensus.

The Senate’s 68-31 vote to approve Rosenworcel included 49 Democrats and 19 Republicans. Sen. Cory Booker, D-N.J., was the only lawmaker who didn’t vote; he was among the 64 who voted Monday to invoke cloture on Rosenworcel (see 2112060061). Sens. Ted Cruz of Texas and Mike Lee of Utah were the only Commerce Committee members who didn’t oppose advancing Rosenworcel last week and then voted against her on the floor. Four other Republicans who voted against Rosenworcel in committee also opposed her on the floor, including Communications Subcommittee ranking member John Thune of South Dakota.

Several non-Commerce senators told us they backed Rosenworcel because of her longstanding relationships on Capitol Hill. Armed Services Committee ranking member James Inhofe, R-Okla., told us Rosenworcel's “incredible background” as a Commerce aide was far more of a factor in his decision to support her than her support in January for staying the commission’s Ligado L-band order (see 2101200001). “I actually had a pretty close relationship” with former Commerce Chairman Jay Rockefeller, D-W.Va., when Rosenworcel was Communications chief Democratic counsel, “but then I looked and I saw what she has done” as an FCC commissioner, Inhofe said. “She knows more on the issues,” is “way ahead of the game” and is “the type of person that’s going to do the right thing.”

Former Senate Appropriations Financial Services Subcommittee Chairman John Kennedy, R-La., told us he ultimately decided to support her confirmation Tuesday after voting no on cloture Monday. “I just wanted a little more time to think about” Rosenworcel’s record than Democratic leaders were willing to provide, Kennedy said. He backed her Tuesday “based on my experiences with her” as lead Senate FCC appropriator and her role in expanding broadband access in rural areas. Rosenworcel “was very helpful, and she seemed like a reasonable person,” he said.

“Democrats and Republicans both have worked with” Rosenworcel on telecom issues while she was a Hill aide and at the FCC, said Sen. Joe Manchin, D-W.Va. They “knew her … knowledge that she had of the system” and particularly the range of problems with the FCC’s broadband coverage data mapping practices. “She knew the maps were wrong, she wanted to correct those maps,” he told reporters. “She was very much up on it” and knows “you can’t … get broadband coverage throughout rural America unless the maps are corrected.”

Manchin acknowledged he talked with Rosenworcel shortly after the Nov. 3, 2020, presidential election but not about the possibility she would become chair under President Joe Biden. “I’ve worked with her before” and “had her in West Virginia seeing the problems we’ve had in rural America with broadband” access “and “she really gets it,” he said. “I think she’s going to be wonderful for the FCC.” Manchin is far less familiar with Sohn but said “I’m sure we’ll get into” considering her confirmation. He’s considered one of several potential swing Democratic votes on Sohn.

Senators' Expectations

Senate Commerce Chair Maria Cantwell, D-Wash., told us Monday she hopes Rosenworcel will be motivated post-confirmation to push the FCC forward on releasing improved broadband maps given the emphasis she and other committee members placed on that issue during her November confirmation hearing (see 2111170071). “I think everybody was loud and clear” that the maps need to be the FCC’s top priority, especially while the deadlock remains, Cantwell said. She praised Rosenworcel during a floor speech, including the then-nominee’s “great knowledge of the FCC at a moment where we need tremendous leadership” on broadband mapping ahead of the commission’s disbursal of $14 billion in affordability money via the Infrastructure Investment and Jobs (IIJA).

Rosenworcel “has been working to be able to get important issues adopted and moved through” the FCC while it’s been 2-2 “and she’ll continue to do that” while the deadlock continues, said Communications Chairman Ben Ray Lujan, D-N.M. “I just hope there’ll be a fifth commissioner sooner rather than later.” Lujan hopes that once Democrats who are uncertain on Sohn “see her responses” to post-hearing follow-up questions “that will address any concerns that anyone has. I know there were many questions submitted” by panel members from both parties.

“We’re all eagerly awaiting those” responses “this week, but I’m optimistic about moving forward,” especially given the likelihood the Senate will delay its end-of-year recess by at least one week, Lujan said. Sens. Jacky Rosen, D-Nev., and Kyrsten Sinema, D-Ariz., are viewed as undecided on Sohn. Rosen’s concerns about Sohn involve her position on IP and media ownership diversity and her involvement with shuttered sports rebroadcaster Locast as a board member for its operator Sports Fans Coalition (see 2112030058).

“After nearly a decade” at the FCC “I think [Rosenworcel] is pretty well known,” which is why so many Republicans backed her reconfirmation, said Senate Commerce ranking member Roger Wicker, R-Miss. He anticipates the 2-2 FCC stalemate lasting into the new year because he believes “at this point,” Sohn doesn’t have the votes on the Democratic side to advance out of committee given expectations no Republicans will back her. “This is likely to be a 2022 issue,” Wicker said.

“I would hope” the “leadership style” Rosenworcel will adopt post-confirmation “will be conducive to transacting business in an efficient way but one that includes a lot of input” from lawmakers, Thune told us. “I hope that she reaches out and tries to consult with Congress on big issues,” including on net neutrality given expectations she will support at least a return of the FCC’s rescinded 2015 rules. “I didn’t vote for” Rosenworcel, but “she is a way better pick than any of the other folks that” Biden could have chosen, Thune said. “I hope that she will at least work with us on trying to solve problems in a way that doesn’t involve the heavy hand of government.”

Continued Bipartisanship?

Many FCC watchers told us they don’t expect the confirmation to change much about commission activities until Rosenworcel also has a 3-2 Democratic majority. As acting chairwoman, Rosenworcel “had the same powers and influence” she has now, said former FCC Chairman Mark Fowler in an interview. Once she has the votes, industry officials expect Rosenworcel to make much bolder policy moves.

“The good news is that the FCC can continue to carry out the largely bipartisan business that it has before it” now, including disbursing the $14 billion from IIJA via an extension of the current emergency broadband benefit program, said Free Press co-CEO Jessica Gonzalez. “There’s a ton of items that move through the commission every month that are just in keeping with the regular order of things.” It’s “good that [Rosenworcel] doesn’t have to vacate the building, as some feared would happen if the Senate didn’t quickly approve her, Gonzalez said.

“I don’t think people change their direction or priorities when they” shift from acting to permanent chair, said Patrick Communications media broker and broadcaster Larry Patrick. “The commission continues to be stuck in low gear until they get that fifth commissioner.” It’s “all about counting to three,” said Free State Foundation President Randolph May.

Others said that being confirmed gives Rosenworcel a freer hand, even without a Democratic majority on the FCC. “Until you’re confirmed as chair, confirmation is job No. 1,” said Fletcher Heald attorney Frank Montero. Rosenworcel’s path to getting Biden to renominate her was unusually long and fraught, so it made sense for her to tread lightly until it was complete, a former FCC official said.

Until Rosenworcel secured reconfirmation, “she had to play things a little carefully,” Montero said. “She still doesn’t have the majority, but as far as her rhetoric, her public speaking, the gloves are kinda off.” May said the long lack of majority could mean Rosenworcel remains more careful about steamrolling the other side even after it becomes an option. “I'm hopeful, but not confident, that this prolonged period of deadlock will have served in its own way to increase the collegiality among the current cohort of commissioners,” he said.

Rosenworcel could now begin taking more affirmative steps to shape the FCC in line with her own vision, many told us. It's common for an incoming FCC chair to bring their own people in the bureau chief positions and other FCC jobs, and Fowler said it was one of the first things he did as chair. Many bureaus remain led by staff installed by predecessor Ajit Pai.

Statements

“It’s a tremendous honor” to be the agency’s first permanent chairwoman, Rosenworcel said. “People across the country count on the FCC to support the connections they need for work, learning, healthcare, and access to the information we require to make decisions about our lives, our communities, and our country. I look forward to working with the Administration, my colleagues on the Commission and FCC staff, members of Congress, and the public to make the promise of modern communications a reality for everyone, everywhere.”

Republican FCC Commissioners Brendan Carr and Nathan Simington congratulated Rosenworcel. “Under her leadership, the FCC has taken significant steps towards eliminating the digital divide, increasing support for telehealth services, and enhancing the security of America’s communications networks,” Carr said. Rosenworcel “has ably led the Commission for the past year, and during that time we have achieved a number of significant, bipartisan objectives in the public interest,” Simington said. “It is my hope and expectation that we will continue this vital work together in the years to come.”

Rosenworcel is a “champion of consumer protection, universal service, competition, and public safety,” tweeted House Communications Subcommittee Chairman Mike Doyle, D-Pa. She “will be a dynamic, determined enforcer and advocate for all consumers and underserved Americans,” said Senate Consumer Protection Subcommittee Chairman Richard Blumenthal, D-Conn., in a statement. “I’ve seen firsthand” her “commitment to ending the scourge of robocalls and closing the digital divide that plagues far too many disadvantaged” communities. “Now more than ever, the FCC needs a chair who understands the importance of net neutrality and critical protections for broadband users, and I know” Rosenworcel “is up for the task,” said Sen. Ed Markey, D-Mass.

A wide range of communications sector stakeholders hailed Rosenworcel’s reconfirmation: 5G Americas, 5Gfor12GHz Coalition, America’s Public Television Stations, AT&T, Comcast, Common Cause, Connect Americans Now, CTIA, Frontier, Incompas, Information Technology Industry Council, Internet Innovation Alliance, NATE, NCTA, National Emergency Number Association, NTCA, Parents Television and Media Council, Public Knowledge, Rural Wireless Association, Verizon, Wireless ISP Association and WTA.