Rosenworcel Expected to Have Busy Months Ahead With Some 3-2 Votes
As industry looks beyond the Biden administration (see 2408130062), the FCC could have some busy months ahead of it. A pair of commissioner meetings is scheduled before the November elections, with at least two more before the inauguration of the next president. While past commissions have focused on less controversial items ahead of a presidential contest, which likely won’t be the case this year, industry officials say. Vice President Kamala Harris has emerged as the slight front-runner for the presidency since President Joe Biden left the race based on most recent polls, although the election is expected to be tight.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
Chairwoman Jessica Rosenworcel spent much of her time with a split 2-2 commission. Anna Gomez was sworn in as the third Democratic commissioner in September. As such, Rosenworcel has had less than a year to move on issues without cutting deals with Republicans. In addition, her immediate predecessor, Ajit Pai, ended his chairmanship with a flurry of activity, acting on controversial items until right before the Biden inauguration, a sign that the norm has shifted.
"We live in an age when many traditional norms have faded away or, in some cases, have been shattered altogether,” Cooley’s Robert McDowell, a former Republican commissioner, said. McDowell said he wouldn’t be surprised to see 3-2 votes during the home stretch of the presidential campaign. “Divided votes may be inevitable because the FCC's Democratic majority under Biden-Harris is less than a year old, and during the 2-2 days most of the bipartisan issues were consumed.”
“It’s beginning to look like there very well may be continuity at the commission after the election, with the present majority staying intact,” former Commissioner Michael Copps said in an email: “The present chair is not the previous chair, and I would expect her to proceed with the thoughtful leadership she has always shown.”
Pai wasn’t shy about 3-2 votes in the Trump administration's final days, Public Knowledge Senior Vice President Harold Feld wrote in an email. Feld noted that the FCC approved 3-2, over dissents from Rosenworcel and Commissioner Geoffrey Starks, a net neutrality remand order in October 2020, days ahead of the election (see 2010270035). Over the objections of FCC Democrats, the agency released a controversial broadband deployment report on Jan. 19, 2021, the day before Trump left office (see 2101190073), Feld noted.
“Given that Rosenworcel did not have a Democratic majority until September 2023, and given that Pai was quite willing to disregard the ‘pens down’ tradition when it suited him, I would hope that Chairwoman Rosenworcel will keep pressing forward on important issues even if they are 3-2 votes,” Feld said.
The U.S. Supreme Court’s recent decision in Loper Bright, which raised questions about agency authority to act absent clear direction from Congress, “combined with the net neutrality stay, the shifting alliances within both major political parties and the constant upheaval in the news cycle, make it even harder to determine where … Rosenworcel might focus her efforts,” said Kristian Stout, director-innovation policy at the International Center for Law & Economics.
Stout sees several likely areas for FCC focus in coming months. With various agencies “vying to stake their claim in AI regulation, it’s reasonable to expect that the FCC will seek additional avenues to assert its role in the area,” he predicted. In light of the coming election, “we might see the FCC focus on more politically aligned issues," including rural broadband “where the Democrats feel more comfortable making arguments around equity of access,” he said: “USF will undoubtedly remain a focal point, with further developments likely in the near term.”
Almost all commission norms “have evaporated,” noted former Commissioner Mike O’Rielly, who expects “activity, some good and some bad” in coming months. He noted that some recent FCC meetings have not had overly ambitious agendas. The agency also faces “some real constraints given recent SCOTUS decisions.”
“Many of the current FCC's signature achievements are under threat from courts with less tolerance for pushing the boundaries of the FCC's statutory authority,” said Joe Kane, Information Technology and Innovation Foundation director-broadband and spectrum policy. For example, increasing commercial spectrum access and USF reform “would be substantial achievements, but they need action by Congress before the FCC even gets a crack at implementing them.”
Rosenworcel “certainly seems hell-bent” on adopting the proposed rules requiring disclosures for political ads that use AI-generated content (see 2407250046), Fletcher Heald’s Francisco Montero said. But it's not clear that the commission “even has authority to adopt these rules” and likely lacks authority over content providers, who are “appropriately the focus of AI-generated content in political ads.”
A longtime regulatory lawyer said much depends on Rosenworcel. If she plans to leave early next year, even if Harris wins, “she will want to finish up some signature items, particularly anything related to the homework gap and the various recent consumer-oriented initiatives.” Action on bulk billing is possible, but could prove difficult, the lawyer said: “If she is staying on, there would be less urgency.”