Likely Ga. Victories Pave Way for 3-2 Democratic FCC, Net Neutrality Rules

Most news outlets declared Democrat Raphael Warnock the winner over incumbent Republican Sen. Kelly Loeffler, whom he led by 68,000 votes, 50.8%-49.2%. Outlets later called Democrat Jon Ossoff the winner over Republican Sen. David Perdue. Ossoff led Perdue Wednesday afternoon by more than 32,000 votes, 50.4%-49.6%. Ossoff and Warnock declared victory -- yet Loeffler and Perdue hadn’t conceded. Republican Bubba McDonald won reelection to the Georgia Public Service Commission (see 2101060041).

Observers view Democratic FCC member Jessica Rosenworcel as the top candidate for chair (see 2012310023). Some Congressional Black Caucus (CBC) members and civil rights groups urged Biden to instead give the gavel to Commissioner Geoffrey Starks, who is Black.

Experts expect the FCC to move quickly to reclassify broadband as a Communications Act Title II service, building on the 2015 order under then-Chairman Tom Wheeler, which Republicans largely reversed in 2017. Experts say the FCC could now go further than Wheeler did, including less forbearance and possibly indirect regulation of broadband service.

Former Commissioner Michael Copps, now at Common Cause, hopes Biden quickly appoints a third Democratic commissioner. “Change in Senate leadership would be huge for FCC commissioner nominations and for restoring public interest oversight, which has suffered so many body blows the past four years,” he said. “It would also determine what communications bills make it to the floor of Congress, what hearings and investigations are held on the Hill, and the budgets federal agencies receive.”

"Senate control is a relative phrase, and a majority has only so much influence to steer legislation," emailed former FCC Commissioner Mike O'Rielly, a veteran congressional staffer who just affiliated with the Hudson Institute (see personals section, this issue). That could mean "communications lawmaking becomes harder to achieve, making independent agencies’ role more important." The Georgia election outcomes won’t affect most FCC work, which is bipartisan and often unanimous, he said: "But for some matters, like nominations and support to pursue a more aggressive agenda, changes" in Senate "control will have some noticeable effects."

Quick Confirmations?

“With the Senate confirmation process under the control of the Democrats, the prospect of a 2-2 FCC throughout 2021 has evaporated in a nanosecond,” Cooley’s Robert McDowell predicted: “Look for a full complement of FCC commissioners to be confirmed by late spring, keeping in mind that there are no longer old-fashioned filibusters for FCC nominees.” The new FCC's likely reclassification of broadband under Title II “could unfold more quickly than conventional wisdom might predict,” said McDowell, a former commissioner.

Rosenworcel “remains the favorite,” but Biden has freedom of choice for chair, said Benton Institute for Broadband & Society Senior Counselor Andrew Schwartzman. “That the 2-2 deadlock will not last very long gives the chair … a much easier path to making staff changes and starting work on new or changed priorities,” he said: Democrats can use the Congressional Review Act to “veto many of the regulatory changes that [Pai] pushed through over the last several months.”

“Personnel is policy, and scales have tipped in a way that opens up opportunities for the Democratic agenda both in Congress and at agencies like the FCC,” said Targeted Victory Vice President-Public Affairs Nathan Leamer, a former Pai aide. CBC members’ backing of Starks is an “indication that the chairmanship has not been decided," Leamer said. "The future agenda of the FCC could hinge on who punches that ticket.”

“Biden should have an FCC majority by this summer, which probably means movement on net neutrality and Title II in the fall,” said Cowen analyst Paul Gallant.

Secure ‘Leadership’

“The FCC leadership should be secured in short order,” emailed Phoenix Center Chief Economist George Ford. Former Commissioner Mignon Clyburn is the “obvious pick for chairman, but her opportunity cost may be too high and she has been there, done that,” he said.

A Democratic Senate takeover “means the hyper-cynical Republican ploy of jamming through” Republican Commissioner Nathan Simington’s confirmation (see 2012080067) "long after the November election, all for the express and sole purpose of hindering the agency's efforts, will be much easier to overcome,” said Free Press Vice President-Policy Matt Wood. There's "a far clearer path to a fair hearing and final vote on strong FCC nominees who'll put the public interest ahead of lobbying wish lists."

There should be less congressional interference and inquiry into the decisions of a Democratic-controlled FCC and more coordination with Commerce Committee chairs, said Adonis Hoffman, former chief of staff to then-Commissioner Mignon Clyburn who has worked in the House and lately consults on telecom. “Democrats have not had such a clear path or greenfield in decades, and the conditions are ripe for major legislation.” That includes “privacy, tech regulation and stricter merger scrutiny,” he said. "Interbranch squabbles will be fewer and farther between,” Hoffman said. “This also bodes well for the passage of minority tax certificates and possible modifications to diversity in media ownership."

Fletcher Heald broadcast attorney Francisco Montero thinks a Democratic-controlled Senate could make the confirmation process go more smoothly. The balance of power could also mean more congressional influence on who eventually occupies seats at the agency, he said. Many FCC commissioners have been chosen from the ranks of congressional staffers. An FCC that isn’t deadlocked is more likely to throw its weight around, but Democratic commissions haven’t traditionally shown much interest in the broadcast industry, Montero said.

Net Neutrality

Copps and others cautioned that Democrats will have the thinnest of majorities in both chambers, which could make legislating on net neutrality difficult. The House has 222 Democrats and 211 Republicans, with two seats vacant. “One or two defections could derail good legislation,” Copps said.

Democrats taking a Senate majority would “be important in terms of framing the discussion” on net neutrality because “they’ll get to control the agenda,” said Public Knowledge Director-Government Affairs Greg Guice. “There might be more interest in moving legislation forward" and the issue will at least “get an airing” in both chambers. There’s “not much wiggle room,” especially since at least one Senate Democrat -- Kyrsten Sinema of Arizona -- resisted signing on to the pro-Title II Save the Internet Act during the last Congress (see 1903120078), Guice said. Ossoff and Warnock back a return to the 2015 rules or similar regulations.

Internet Innovation Alliance honorary Chairman Rick Boucher believes other telecom matters will take precedence for Congress this year over net neutrality, including improving broadband access and affordability amid the pandemic. Those issues now have “a greater sense of importance than anything related to net neutrality," he said. If the FCC tackles net neutrality, it should seek legal basis in Telecom Act Section 706 rather than Title II, he recommended.

Fight for the Future Deputy Director Evan Greer is among the pro-Title II backers now urging swift Senate action on net neutrality. “Democrats have no excuse," she said. “They need to get to work right away protecting people’s basic rights in the digital age. This means quickly confirming a new” FCC chair “who will restore net neutrality and ensure everyone has affordable Internet access.”