Incoming FCC Democratic Majority Unlikely to Rein In Policy Plans Amid 2024 Campaign

The FCC hasn’t sworn in Gomez and she isn’t expected at the commission’s open meeting Thursday, the agency told us Wednesday. “Once the paperwork is ready, we will be working with Commissioner-designate Gomez on when she will be sworn in,” an FCC spokesperson said: “At this point, we do not anticipate that she will be sworn in before Thursday’s Open Meeting.” She’s likely to instead sign on as soon as next week, former FCC officials said. Gomez didn’t comment.

“I have no idea” whether the 2024 election, still more than a year away, will be a factor as FCC Chairwoman Jessica Rosenworcel moves forward on long-delayed policy priorities, said Senate Commerce Committee Chair Maria Cantwell, D-Wash. “They definitely shouldn’t slow down on” improving broadband coverage maps and “still don’t have it right” despite recent improvements that drew plaudits from Senate Appropriations Financial Services Subcommittee Chairman Chris Van Hollen, D-Md., during a Tuesday hearing (see 2309190001).

“There has not been a full, functioning” FCC yet during the Biden administration and “there’s a pending docket of important items that deserve attention” once Gomez joins the commission, said Senate Communications Subcommittee Chairman Ben Ray Lujan, D-N.M. Rosenworcel “has done a tremendous job working with” the commission during the course of the multiyear 2-2 partisan tie, “but I’m hopeful that action that requires” a full five-member body “will be considered, and I wouldn’t be surprised if most of those votes are 4-1” with the support of one of the Republican commissioners.

The FCC “should do whatever is best for the public” and conditions “in the business ecosystem” regardless of how close the action happens in proximity to the 2024 election, said Senate Indian Affairs Committee Chairman Brian Schatz, D-Hawaii. “It's very clear that when Republicans have a majority, they use it,” including during the leadup to the 2020 election under then-FCC Chairman Ajit Pai. “This is not the FCC of the past,” Schatz said: Voters elected Biden president and “gave us a Democratic Senate, so it's our obligation to move forward with” policy priorities when possible.

Rosenworcel “has been able to do things” with the FCC in a 2-2 tie, but “she knows what needs to get done” once a Democratic majority is in place, said House Communications Subcommittee ranking member Doris Matsui, D-Calif.: “They understand that there are some bipartisan things that they need to do,” but “they’re going to get as much done as possible” on Democratic priorities well into 2024. “There were a lot of things” Rosenworcel had to put on the back burner while the commission remained 2-2, “but I think there’s a lot more communication going on about how” to schedule out those agenda items, Matsui said.

Republicans Wary

Senate Commerce ranking member Ted Cruz of Texas and other Republicans are wary about the FCC’s road ahead, with some echoing misgivings they voiced during Gomez’s confirmation process about a hard leftward shift once the Democrats gained a majority. Congressional GOP aides noted a Wednesday paper by Obama administration U.S. Solicitor General Donald Verrilli and ex-Principal Deputy Solicitor General Ian Gershengorn that claims it would be a “serious mistake” for the FCC to try to bring back net neutrality rules akin to its rescinded 2015 order and accompanying reclassification of broadband as a Communications Act Title II service given the Supreme Court's establishment of the major questions doctrine in its 2022 West Virginia v. EPA ruling (see 2206300066). The study was funded by NCTA and USTelecom, but the authors said the views expressed are their own.

Holding off on controversial matters during the election campaign “certainly would be the wise and prudent approach” for the FCC next year, but “I don't know if it will be the approach of the Biden FCC,” Cruz said: That “has been a long and bipartisan practice and if the FCC respects its institutional integrity, it will continue to follow that” norm. “We have seen throughout the Biden administration a willingness to politicize and weaponize federal agencies,” Cruz said. “It will be up to the judgment of the commissioners whether they want to be complicit in undermining the integrity of the agency.”

“I hope” the FCC avoids controversial items next year, said House Communications ranking member Bob Latta, R-Ohio. “Many of the issues” the FCC will need to tackle in the coming year require “both parties working together” rather than the Democrats staking out on their own with “partisan priorities.” Republican FCC Commissioners Brendan Carr and Nathan Simington indicated during a June House Communications hearing (see 2306210076) that “things were going good” at the commission during the tie and Latta hopes that continues.

Republican former Commissioner Harold Furchtgott-Roth emailed that in 30 years of following the FCC, every presidential election year has had some controversial items passed. “I suspect 2024 will be the same,” he said.

'Overstated' Conventional Wisdom

“High-profile and controversial items have been going through” into October of the election year “for a while now,” emailed Public Knowledge Senior Vice President Harold Feld. FCC chairs instead generally don't schedule controversial items after the election if the White House changes parties. He noted then-Chairman Tom Wheeler in 2016 pushed through ISP privacy rules and unsuccessfully pursued opening up the cable set-top box. Pai in 2020 pushed through the Title II remand order with only Republican votes (see 2010270035), Feld said.

Congress' 2017 Congressional Review Act resolution that rescinded the FCC's ISP privacy rules (see 1704170048) “flagged a danger for the Commission” if it releases rules in a time frame that gives Congress a shot in 2025 to vote out a resolution of disapproval, Feld said. If Congress disapproves a rule, the agency cannot reinstate a substantially similar rule without express authorization. What “substantially similar” means “is anyone's guess,” he said: A CRA resolution requires both houses of Congress to have 60 days to consider the rule, with that clock starting again next session if the House or Senate adjourns before the clock runs out, so the FCC would have to finish any rulemaking in April or May to avoid a CRA threat, Feld said.

The conventional wisdom “has always been somewhat overstated,” emailed Benton Institute for Broadband & Society Senior Counselor Andy Schwartzman. The agency “sometimes avoided especially touchy projects,” but there “have been plenty of election year votes on hard issues, including those that were not subject to some sort of judicial or statutory deadline.” Several statutory and court-ordered mandated items are pending, including rules implementing the 2022 Martha Wright-Reed Just and Reasonable Communications Act and the next quadrennial review, he said.

Rosenworcel surely realizes the long delay in Democrats getting a majority means she will have to move some controversial items during the election year, Schwartzman said. “Her tenure will be judged by what she has accomplished, not what she avoided,” once the 3-2 majority is in place. “Having known her for more than two decades, I think she very much wants to get things done,” he said: “She cares deeply about promoting competition and diversity. While I often hear people say she is timid, I believe that assessment is wrong. She is pragmatic and doesn't like to waste political capital, but she has been more than willing to take tough stands and to stick out her neck when she thinks the goal is worth it.”

Rosenworcel “has not been 'sitting on her hands,'” former Commissioner Michael Copps emailed. “She has very adroitly built momentum on broadband, made progress on many fronts, and managed a 2-2 agency as well as anyone has ever done it.” But the FCC “has lots of ground to make up,” he said: “Does that mean it can undo all the damage that’s been inflicted by the previous Commission in the next twelve months? No, but it can still do a lot. Remember the agency has an overarching mission to get broadband out to where it isn’t, so it must focus lots of its resources on this once-in-a-lifetime opportunity.”