Democrats Losing Patience With Delays on Biden's FCC Picks

Pressure is expected to grow now that the FTC has a temporary 3-2 Democratic majority following Tuesday night's swearing in of Chair Lina Khan. Biden’s decision to designate Khan as FTC head soon after her Senate confirmation to the commission (see 2106150068) took lawmakers and others by surprise. The White House kept the planned move a secret in case it caused some Republicans to vote against Khan's confirmation as commissioner, lobbyists said.

FTC Commissioner Rebecca Kelly Slaughter will remain at her post, a Slaughter aide confirmed Wednesday. Slaughter served as acting chairwoman from Jan. 21 (see 2101210067) until Khan took over Tuesday. The aide pointed to Slaughter’s previous statement saying she looks forward to working with Khan.

House Commerce Committee Chairman Frank Pallone, D-N.J., welcomed Khan’s appointment Wednesday. “The FTC is a critical agency and its work has never been more important,” he said. “I’m committed to empowering the agency and ensuring it has the resources and authority it needs.” Americans for Tax Reform’s Open Competition Center and others criticized Khan’s elevation.

Senate Commerce Committee Chair Maria Cantwell of Washington and other Democrats told us Wednesday they have received no indication from the White House that FCC nomination announcements were imminent. Communications sector lobbyists similarly weren’t aware of any signs of any FCC nominations happening immediately. The White House didn’t comment.

Ending 2-2

The White House needs to “go faster” in naming an FCC chair and a third commission Democrat to break the partisan deadlock, Cantwell told us: It will be “important” that the Senate has enough time to potentially confirm those nominees before August recess. The Senate is set to break at the end of the week of Aug. 2 and return Sept. 13. “There’s so much we’re trying to do” on telecom policy that’s being delayed by the lack of a full commission, but “you’d have to ask” the FCC members whether they feel they have been effective during the deadlock, Cantwell said. The FCC didn’t comment.

“Maybe [Biden] will nominate somebody” to the FCC “who’s so great we’ll all be excited” and forget about the lengthy delay, Cantwell said. She remains neutral on the chairmanship derby, saying she would be “happy” if Biden names acting Chairwoman Jessica Rosenworcel to the permanent post, but if the White House wants to “do something else,” that would also be fine. “We just need names,” Cantwell said.

“Every day that goes by that we don’t have a fully functioning FCC I think is slowing down … getting more broadband infrastructure across” the U.S., said Senate Communications Subcommittee Chairman Ben Ray Lujan, D-N.M. Rosenworcel “is doing a tremendous job given she has” a 2-2 split, but “can you imagine what she can do with” all five seats filled. He stressed the importance of Biden renominating Rosenworcel as permanent chair and nominating an NTIA administrator “so we have a full leadership” team “as we talk about” spectrum policymaking issues.

“I’m not panicking” yet about the Biden administration’s apparent lack of progress on FCC nominees, but “it’s a concern” given the telecom priorities the commission may only be able to achieve via a Democratic majority, said former lead Communications Democrat Brian Schatz of Hawaii. “We need to get moving,” especially given 2021 is almost halfway finished.

Other Democrats were more circumspect.

Rosenworcel “has been doing a very good job” with a tied FCC “and I’m sure the administration is trying to find just the right nominees who can continue the great work that’s already taken place this year,” said Sen. Ed Markey of Massachusetts. “I’m certainly hopeful” the White House will “act soon” on filling out the commission, said Sen. Richard Blumenthal of Connecticut.

GOP 'Mystified'

Senate Republicans are surprised it’s taken Biden this long to choose his FCC picks. They cited Democrats’ furor last year when then-majority GOP leaders fast-tracked confirmation of Nathan Simington to the commission in hopes of temporarily stymieing the incoming Biden administration’s telecom priorities in 2021 (see 2012020069).

“I think all of us are mystified about how long it takes a new administration to come up with nominees” to the FCC and other federal entities, said Senate Commerce ranking member Roger Wicker, R-Miss. “It’s not just the regulatory bodies” that continue to have vacancies, as “we still have hardly ambassadors” even in the wake of Biden’s first summit with the G7 nations’ leaders and “a number of subcabinet” positions. “I thought this was why you had transition committees working during” the 2020 presidential campaign, he said.

Republicans are “probably OK” with how the FCC is functioning amid the tie given that once Democrats claim a commission majority, “they’ll be doing a lot more bad stuff” than they can do now, said Senate Communications ranking member John Thune of South Dakota. “It seems like” the FCC members have “figured out a formula to get things done” and GOP Commissioner Brendan Carr has indicated in recent conversations that he believes they have been able to do as much “as possible in a bipartisan way.”

Democrats are going to face a “real challenge” to confirm any FCC nominees before the August recess “given how everything else is backed up right now and the other things they have on their agenda,” Thune said. “If I were a betting person, I don’t see how that happens during the window between now and August.”

Khan’s ascendancy is seen to be affecting the dynamics of the FCC nominations derby. Some Senate Republicans are privately indicating Biden’s decision to not indicate his plan to name Khan as chair until immediately after her confirmation will likely affect how they view any new FCC nominees in case the administration chooses to repeat the tactic. Lobbyists pointed to DLA Piper’s Smitty Smith as a contender whom Biden could choose to elevate to FCC chair in a similar fashion.

Wicker demurred from saying whether the Khan appointment would make him take a different tack to evaluating future FCC nominees. He voted to confirm Khan and supported her stance on reining in Big Tech (see 2105120063). Choosing an agency leader is a “wholly administration decision and I don’t think it has any significance” in affecting the confirmations process, Wicker said.

'Lost' Year?

There’s no chatter indicating the state of play has shifted against Rosenworcel. No potential candidate among those whose names have emerged in recent months to be the third FCC Democrat appears to be definitively out, lobbyists said. The most recent candidate to emerge is House Communications Subcommittee FCC detailee Parul Desai (see 2106020054).

Democratic lawyers said they have heard for several weeks that the White House was about to name an FCC chair. The administration appears to be waiting to make sure it could get the Khan nomination through the Senate before moving on other key positions, including FCC chair.

The administration is nearly into historic territory. Bill Clinton's administration waited until June 29, 1993, to nominate Reed Hundt, with the intention of designating him as chair. Hundt took office Nov. 29. Starting that April, acting Chairman James Quello had a functional 2-1 Democratic majority.

“Delay always hurts,” said New Street’s Blair Levin, Hundt’s chief of staff: “A new chair has to pull together a team. That means critical work can't start for several months after one has started.” A “lot of the talent that might have been available on day one either has gone elsewhere in the administration or has become stuck in their current situation,” Levin said.

Hundt was under immediate pressure after he took over to redo the initial rules implementing the 1992 Cable Act and put in place the rules for the first spectrum auctions, Levin said. A new chair will face similar pressures. “Starting late means less time to do the things that require new approaches, experimentation and consensus building,” Levin said. He cited addressing the USF contribution base.

"We are starting to run out of legislative days before the August recess,” said Public Knowledge Government Affairs Director Greg Guice: If something doesn’t happen by then, confirmation is unlikely before October. “You basically at that point have lost an entire year of your administration,” he said: The FCC “has an agenda that looks very different from the Republican agenda that was run over the last four years, so it’s important that they start doing their work in earnest.”

“Several federal departments are in similar predicaments, so I’m not terribly concerned,” said former Commissioner Michael Copps, now at Common Cause: “But the FCC has much to do, and I hope the administration and then the Senate will get the agency up to full strength. It’s time.”

Demand Progress Senior Strategist Mark Stanley and Center for Democracy & Technology Equity in Civic Technology Project Policy Counsel Cody Venzke noted policy priorities they wrote the Biden administration last week would be impacted by delays in FCC confirmations (see 2106140044). If the FCC "can't build a consensus on addressing thoughtful regulation of broadband to ensure there's an equitable platform for everyone ... we're going to be closing a lot of people out of opportunities," Venzke told us.

“The current makeup of the FCC has done a great job forging ahead,” said Nathan Leamer, an aide to former Chairman Ajit Pai. “Assuming a partisan 3-2 split is needed for the agency to be fully effective is an unfortunate misnomer.” Leamer said: “The current 2-2 split has given the FCC an opportunity to evaluate new ideas such as reforming the USF contribution system, balanced ways to forge ahead on a 5G agenda and protect consumers.”