Biden's Slow Pace in Filling Communications Positions Could Mean Problems Ahead

Much of the focus has been on the struggle to get FCC nominee Gigi Sohn and FTC nominee Alvaro Bedoya through the Senate, but experts disagree to what extent the Biden administration’s slow pace is filling vacancies is a result of dysfunction on Capitol Hill or shows a need for the White House to up its game, especially ahead of the mid-term elections, when Democrats could lose control of the Senate.

The Trump administration seemed to slow roll appointments “as a power tactic to keep the decision-making process at the White House,” said Shane Tews, American Enterprise Institute visiting fellow. “Since this would not be regular order, it's not clear if this is also the Biden administration's tactic too or if they are placing such controversial candidates they just can't make it through the Senate gauntlet,” she said.

Public Knowledge Senior Vice President Harold Feld defended the administration. “As we keep seeing with the delays on Gigi Sohn's confirmation, it has become incredibly difficult and time consuming to get nominees through confirmation,” he said: “This is impacting the ability of the Biden administration to get important work done” and it’s “not clear that the … administration can do anything about it,” he said. “Republicans have leapt at the flimsiest of excuses to delay confirmation of needed appointees.”

House and Senate leaders “should adjourn Congress sine die, not merely pro forma, so Biden can make recess appointments,” Feld said: “If Republicans saw that there was no value in delaying confirmation because of a raft of recess appointments, they would stop playing these games.”

The Biden administration deserves “a solid ‘D’ for ‘deprioritization,’" emailed Sascha Meinrath of Penn State University. “Critically important technology and telecom initiatives are stagnant, with ongoing impasses causing grave harms to communities and the U.S. writ large,” he said: “The White House CTO's office hasn't been adequately staffed, the administration's FCC nominee has been in limbo for closing in on a year, as is Biden's pick as the FTC's fifth commissioner. Meanwhile, NTIA is already in violation of statutory mandates to disburse broadband support to Tribes -- too many of whom continue to have no affordable broadband connectivity options.” The Biden administration “has demonstrated a shocking lack of leadership -- which will haunt Democrats in the mid-term election cycle, likely compounding this very problem,” he said.

Surprising

“Having a White House staff with so little knowledge of wireless issues, especially given the dire need to improve the spectrum pipeline, is extremely surprising and enormously troubling,” said former Commissioner Mike O’Rielly. “Other, non-FCC openings that remain cause major headshaking and question the administration‘s ability to handle complex, coming matters,” he said.

The administration has gotten off to a “slow start” on filling vacancies, said Cooley’s Robert McDowell, a former FCC member. But “career civil servants still do the lion’s share of the work and there are far more of them in place than political appointees,” he noted: “Not having a few political appointees installed may mean that not as many controversial or ideological policy items get implemented. But a lot could get done such as refilling the spectrum pipeline. Many issues, such as those affecting spectrum, have been fertile ground for bipartisanship so the administration should focus on those.”

Controversy over spectrum issues has been a result of actions by the executive branch, not the FCC, said Joe Kane, Information Technology and Innovation Foundation director-broadband and spectrum policy. “Having clear policies set by acknowledged leaders in all relevant roles from the White House on down is important to implementing effective communications policy as opposed to spinning our wheels,” he said.

“Thankfully, we have an NTIA administrator and the FCC has been moving along quite well without a full dais,” said Digital Progress Institute President Joel Thayer. Unfilled slots don’t “bode well for our position on the international stage, especially with the lack of leadership at the State Department,” he said: “The administration really needs to pick up the pace.”

The vacancies are a problem for President Joe Biden, said Free State Foundation Director-Policy Studies Seth Cooper. “Communications policy issues are often complex and the details matter,” he said: “Having personnel in place to navigate those issues and hammer out the details is key. And it becomes that much harder to build consensus across executive branch agencies when there is an absence of people with clout to make inevitably tough policy judgments.” Continuing vacancies create a “perception that the administration lacks internal agreement on communications policy or that it considers broadband access, spectrum use, and other communications issues to be low priority matters,” Cooper said.

Complicated Landscape

New Street’s Blair Levin said the dynamic is complicated. On competition, the administration has a “well-articulated agenda,” he said: “We can argue about the merits, but the July 2021 executive order laid out the actions it wanted. Several of the ones related to communications, [multi-dwelling units] and the consumer label, are moving forward. Several others, Title II and early termination fees, are not.” On a macro level, “the administration was able to get two key appointments on board, but it is still too early to have conviction on whether” FTC Chair Lina Khan and DOJ Antitrust Division Chief Jonathan Kanter “will bring about the change they desire in markets,” he said.

On the budget “the goals are well on the way to being accomplished, with significant appropriations designed to end the access and adoption digital divides,” Levin said: “The administration has not formulated its proposal for a permanent solution to the affordability gap affecting low-income persons, which will be a real measure of its impact on communications policy. Here it is hard to say whether the lack of personnel is a cause.” On noncompetition regulation “there are a number of other issues, such as spectrum, consumer protection, cybersecurity … where it is early but there are some initial steps and it appears that the lack of the third vote” at the FCC “may affect the details but not necessarily the ability to make progress,” he said.

Another policy bucket, “often overlooked,” is technology and “initiatives designed to improve outcomes in the delivery of critical services … through improving the government's own use of technology,” Levin said. “Once we solve the digital divides, there is enormous upside in this bucket,” he said: “I don't think we have seen much movement forward on this front, but whether that is a personnel issue or a matter of policy priorities, is difficult to say.”