Senators Seek to Beat the Clock on Biden FCC, NTIA Nominees

Senators told us they believe there's a feasible if narrow legislative window to reconfirm FCC Chairwoman Jessica Rosenworcel this year, act on fellow Democratic commission pick Gigi Sohn and affirm NTIA administrator nominee Alan Davidson. The White House announced President Joe Biden’s intent to choose the trio Tuesday, as expected. Biden designated Rosenworcel Tuesday as permanent chair. She had been acting head since January. The White House also nominated Winston & Strawn patent lawyer Kathi Vidal as Patent and Trademark Office director.

Senate Democrats hailed Biden’s FCC nominees, after repeatedly pressuring the White House to act amid the potential for the commission to flip to a 2-1 GOP majority in January 2022 (see 2110080043). Republicans indicated they expect limited support within the caucus for the FCC nominees' confirmation. The White House and others highlighted that Rosenworcel is the first woman to be permanent FCC chair. Biden's nomination of Sohn to be the first openly LGBTQ commissioner also drew widespread attention.

It's “an honor to work with my colleagues on the Commission and the agency’s talented staff to ensure that no matter who you are or where you live, everyone has the connections they need,” Rosenworcel said. Her office cited her role as acting chair in shepherding through a series of bipartisan policy initiatives, including the $7.17 billion emergency connectivity fund and $3.2 billion emergency broadband benefit programs. The FCC canceled Rosenworcel's planned Tuesday news conference around the time the White House announced her renomination.

“If confirmed, I'll work to fulfill” Biden’s “goal of ensuring that every household in the US has robust broadband Internet,” tweeted Georgetown Law Institute for Technology Law & Policy’s Sohn. She praised Biden for naming Rosenworcel FCC chair, a move that’s “well deserved.” Sohn was seen as a leading rival to Rosenworcel to lead the agency. Sohn was previously a top aide to then-Chairman Tom Wheeler and a Public Knowledge co-founder.

“We have a once-in-a-generation opportunity to close the Digital Divide, make the best use of our airwaves, and build a better Internet for all,” tweeted Davidson, a Mozilla Foundation senior adviser. He plans to work “closely” with both Rosenworcel and Sohn. Davidson was previously Mozilla vice president-global policy, Commerce Department digital economy director 2015-17, and Google's first U.S. public policy director. He was involved in Mozilla’s unsuccessful legal challenge to FCC repeal of 2015 net neutrality rules.

'Quick' Timeline

The Senate’s timeline for confirming Rosenworcel “should be fairly quick” since the chamber already approved her two previous times, most recently in 2017 (see 1708030060), said Senate Commerce Committee Chair Maria Cantwell, D-Wash. She believes the chamber can also move relatively fast on Davidson and Sohn, saying the timeline depends on the White House swiftly providing lawmakers with nomination paperwork. Cantwell separately committed to “swiftly considering these nominations" in 2021.

Cantwell intends to bring Rosenworcel in for a Senate Commerce confirmation hearing along with Sohn and Davidson. “We’re going to spend a lot of time on the FCC in the future,” including more focused oversight “and investigate what the FCC has done and not done to meet our goals on broadband” connectivity, among other matters, Cantwell told us. “I think there’ll be a lot of members who will want to talk to them about the future."

“This is long overdue” because leadership roles at the FCC and NTIA are “critically important positions to eliminating the homework gap, broadening investment and connecting every American with fast, affordable internet,” said Senate Communications Subcommittee Chairman Ben Ray Lujan, D-N.M. “There’s a reason some of us have been calling for these appointments since March.” Lujan is “hopeful that there’s enough legislative time because of this delay to be able to” confirm the three nominees by year-end.

“You and I both know that time is a valuable commodity here and especially with the important legislative initiatives that are still pending before” Congress, “we are going to have to fight for time to get these done,” Lujan said. Senate Consumer Protection Subcommittee Chairman Richard Blumenthal, D-Conn., believes there’s still “sufficient time” to act on the FCC and NTIA nominees this year. “It’s a real imperative” that Senate leaders make time to process their confirmations, he said.

Senate Communications ranking member John Thune, R-S.D., assumes Senate Democrats are “going to want to move fairly quickly because of the 2-1 Republican advantage that would occur” if Rosenworcel has to leave at the beginning of January. “I don’t know that I would” personally object to a bid to fast-track Rosenworcel and Sohn through the confirmation process, “but I’m sure we would have members who will” if they reach the Senate floor, Thune said. “Eventually, if the Democrats want” to advance the pair, “it’ll get done.”

“We’ve had a good run” with a 2-2 commission, Commissioner Brendan Carr told reporters Tuesday. “We’ve worked together on big important things” including the emergency broadband benefit program and “the final steps” on the 3.45 GHz auction, he said. “I’m hoping for more,” he said: “There have long been groups on the left that are pining for the good old days of 2014 when we reclassified the internet under the heavy-handed [Communications Act] Title II approach and turned a blind eye at the same time to the consolidation of power in large technology companies.”

There remains "a path forward where we can continue to get bipartisan things done," Carr said: "I have a desire to work with my colleagues. ... It ain't going to be everything I want, but elections have consequences and that's the way it will be." Carr made similar comments in a statement praising the nominees. Republican Commissioner Nathan Simington and Democratic Commissioner Geoffrey Starks also congratulated them.

FCC watchers said confirmation delays are possible, but the Senate could also move quickly. “There are a lot of time-consuming obstacles in the way like debt ceiling, appropriations, and reconciliation,” said Capitol Resources telecom lobbyist John Simpson. “But as we saw with" Simington's fast-tracked 2020 Senate affirmation, if the chamber "wants to get a confirmation done quickly it finds a way to go quickly.” The Senate “has very little floor time left this year with many other top drawer priorities,” emailed former Commissioner Robert McDowell. “Everyone should fasten their seatbelts for a faced-paced and interesting confirmation ride.”

Partisan Divide

Cantwell and other Senate Democrats praised Rosenworcel and Sohn and had no opinions on Davidson. “We need to get a commission that’s operational for the future and” both Rosenworcel and Sohn will “do that,” Cantwell said. “I look forward to hearing more from” Davidson “on what his views are on what to do moving forward,” and believe it’s promising he previously served in the Commerce Department.

Sen. Ed Markey, D-Mass., believes Rosenworcel and Sohn together will make for a “strong” FCC that will be capable of restoring net neutrality rules and reclassify broadband as a Title II service. He said he decided not to sign on to a September letter to Biden with other Senate Democrats in support of Rosenworcel because he wanted to give the White House “latitude” to “make their own decisions.”

“I’m very pleased” Biden picked Rosenworcel to lead the FCC because “she’s extremely well qualified,” said Blumenthal, one of her most vocal Senate supporters. “I value” Rosenworcel’s “expertise” on a range of telecom policy issues, said Sen. Tammy Baldwin of Wisconsin. Senate Finance Committee Chairman Ron Wyden of Oregon and Reps. Yvette Clarke of New York and Anna Eshoo of California were among others who hailed the FCC nominees. House Judiciary Committee Chairman Jerry Nadler, D-N.Y., and Antitrust Subcommittee Chairman David Cicilline, D-R.I., praised Sohn.

Rosenworcel will “probably have more support among the Republicans” than Sohn or other chair contenders “who were being discussed,” but “my assumption is” that Sohn’s views are going to be “very heavy on regulation and net neutrality” since that’s where her “expertise and background is,” Thune said. “I obviously look forward to the opportunity to hear” from the FCC nominees personally but “most of us are familiar at least generally with some of their views” and that “will make it hard for many Republicans to support” them.

Senate Consumer Protection ranking member Marsha Blackburn, R-Tenn., intends to “take a look” at Rosenworcel, Sohn and Davidson. “We’ve worked with” Rosenworcel before but cautioned “I have some difference of opinion” with Sohn “on several issues,” including net neutrality, Blackburn said.

Sen. Dan Sullivan, R-Alaska, praised Rosenworcel for her “understanding of the challenges” Alaska faces on telecom issues but is unfamiliar with Sohn and will need to meet with both of them. “I’m certainly open” to supporting Rosenworcel, but also hasn’t foreclosed placing a hold on her and Sohn because of Alaska-focused concerns, as he did in 2018 during Carr’s reconfirmation process (see 1809120056). “It was important for me to do due diligence and get a commitment from them” on Alaska issues and “if I did it” under former President Donald Trump it’s possible it could happen again under Biden, Sullivan said.

Sohn’s nomination is expected to draw fire from Republicans and possibly slow the process. Yet even longtime opponents expect her to get confirmed. Legislators could raise questions about her membership on the board of streaming service Locast, which was found to infringe broadcaster copyrights, a broadcast industry official said. Sohn’s active record on retransmission consent is also likely to come up, the broadcast official said. NAB “extends congratulations to Gigi Sohn on her nomination to the Commission,” it said. “We look forward to working with the full Commission on how the FCC can ensure a thriving local broadcast industry.” Sohn didn’t comment.

“If I were to give some advice, as if they need any, it would be to respect the House and Senate Members and their contributions to the process,” emailed former Commissioner Mike O’Rielly. “The agency does not reside on an island and is not beholden to an Administration." The FCC “can now return to being a champion for consumers,” emailed Wheeler. “Gigi Sohn is a proven and tested consumer champion; together with" Starks, Rosenworcel "has the opportunity to reverse the practices of the Trump years and return the agency to its consumer and competition responsibilities.”

'Historic' Firsts

Eshoo was among those who highlighted the historic nature of Rosenworcel’s chair designation and Sohn’s nomination. “Rosenworcel and Sohn are brilliant champions for innovation, public safety, national security, universal broadband, net neutrality, and social justice,” Eshoo said. She was part of a group of House Democratic women who pressed Biden in February to select Rosenworcel.

Rosenworcel “will be an outstanding permanent chair -- making history as the first woman in this role,” said New America’s Open Technology Institute Director Sarah Morris. Parents Television and Media Council President Tim Winter praised Rosenworcel’s nomination as “not only as the first female chair of the FCC, but as the first FCC chair who is also a mom.”

AT&T congratulates Rosenworcel on “the historic achievement of becoming first woman nominated,” said Executive Vice President-Federal Regulatory Relations Joan Marsh: “We expect the FCC will hit the ground running under her leadership.” NTCA has "long appreciated her focus on closing the digital divide, and, especially during the pandemic, to giving families and students greater ability to get and stay connected," said CEO Shirley Bloomfield.

“Not long ago, appointing an LGBTQ person to such a key position would be considered a political liability,” said LGBTQ Victory Institute Executive Director Ruben Gonzales in a statement: “Yet the Biden administration is building the most LGBTQ-inclusive administration ever and is proving they can do so while appointing the best possible people.”