‘Nightmare scenario’: Biden’s delay in appointing FCC leaders could lead to a Republican takeover

President Joe Biden’s delay in announcing his plans for what to do with the Federal Communications Commission (FCC) has left him close to what seemed unthinkable just months ago: His party losing a majority at the agency.

Biden has been historically slow in announcing who will permanently chair the five-person agency. That delay, as observers have noted, has already pushed back any potential big-ticket items the FCC is expected to tackle under Democratic majority, like restoring net neutrality rules and the agency’s authority over broadband, or working on privacy rules, and broadband affordability and availability.

When Biden took office, it was widely expected that a Democratic-led FCC would restore net neutrality rules—broadly speaking rules that prohibit internet service providers (ISPs) from blocking, throttling, or engaging in paid prioritization of internet traffic under Title II of the Communications Act—and the agency’s authority over broadband, which was abdicated when the Republican FCC repealed the rules in 2017. Meanwhile, former President Donald Trump signed legislation in 2017 that repealed privacy rules passed by the FCC that would have banned ISPs from collecting, sharing, or selling consumer data without consent. A Democrat-led FCC could also expand programs like E-Rate and Lifeline, which offer subsidies to help schools, libraries, and low-income Americans get online.

Essentially, there’s a long list of items people would like to see the FCC tackle, but it can’t realistically do it without a full agency, where any large decisions would take a party-line vote.

When taking office, Biden inherited a deadlocked 2-2 agency after former Chair Ajit Pai stepped down. Presidents have the ability to name a chair of the FCC and nominate commissioners, who are then confirmed by the Senate. Despite near-constant pressure from public interest groups and others to fill out the agency since taking office, Biden has only named Jessica Rosenworcel, a Democrat, as the acting chair. But eight months into his administration, Biden has yet to go further by either making Rosenworcel the permanent chair and nominating a fifth commissioner or nominating someone else to become chair of the agency.

In fact, Biden’s pace is the longest it’s taken for a permeant chair to be named at the agency since 1977 when former President Jimmy Carter nominated Charles Ferris to become the chair in September, as the Washington Post noted.

While the delay has halted any movement on a number of different agenda items, Biden now faces another hurdle: If he waits much longer, he faces the possibility of the FCC having a 2-1 Republican majority in just a few months. Evan Greer, the director of Fight for the Future, called the situation a “nightmare scenario.”

“It has taken way too long, and the White House needs to prioritize this,” Greer said of Biden’s lack of movement at the FCC, adding: “My hope is that it has just been taking a long time and any day now we’re going to hear a nomination for someone just as badass to run the FCC as the folks who are now running the FTC. But hurry it up because people are getting anxious day-by-day.”

Greer added:

“The current scenario is sort of already a nightmare, in the sense that we’re in the middle of a pandemic and access to affordable and open internet is more important now than ever before and the agency that is supposed to be overseeing that industry is effectively kneecapped … The even worse nightmare scenario is this ends up taking so long that we have a 2-1 majority of people at the FCC that are effectively shills for the telecom industry.”

It’s unclear why the administration isn’t prioritizing these appointments. However, the assumption is that with so many front-facing policy goals, Biden’s energy has simply been elsewhere. Earlier this year, observers told the Daily Dot they believed the delay in an FCC pick was because the administration was prioritizing other issues, like dealing with the pandemic. Now, the clock is ticking toward a January deadline that, if Biden doesn’t act soon, could push back all of those agenda items even more.

‘The longer we go in this year, the more likely it becomes’

When Biden took office, it seemed likely that the fate of the FCC would be similar to other federal agencies: A chair would be named, and the priorities for the agency would soon become obvious. But that hasn’t happened, and now there’s a risk that Biden’s delay could give Republicans a majority at the agency.

Rosenworcel was named acting chair in January, but her term as an FCC commissioner technically ended last year. However, laws allow her to remain at the agency until “the expiration of the session of Congress that begins after the expiration of the fixed term.” That means her term ends in January 2022.

A 2-1 Republican majority wouldn’t mean that the two Republicans, Nathan Simington and Brendan Carr, set the FCC’s agenda. The remaining Democrat, Geoffrey Starks, would become the acting chair. But the FCC wouldn’t tackle anything that needs a party-line vote. The Republican majority would essentially be seen as a blunder by Biden—not to have a fully staffed FCC amid a pandemic that could move on a number of issues that Democrats want to see happen.

The January deadline makes a 2-1 Republican majority at least a possibility if Biden doesn’t move quickly. A potential nomination takes time and would not necessarily be a quick process. To wit: Tom Wheeler, who was nominated by former President Obama in April 2013 was confirmed by the Senate in October 2013. Obama’s first FCC chair, Julius Genachowski, was nominated in March 2009 and confirmed in June 2009.

Sometimes nominations move faster. Simington, a Republican who former President Donald Trump picked to serve on the agency in the waning days of his presidency, was nominated in September last year and confirmed in December. Republicans, it appeared, rushed Simington’s nomination before the makeup of the Senate was finalized following the runoff elections in Georgia after the 2020 election.

Biden’s delay in making a choice—and Rosenworcel’s looming deadline—makes that kind of speedy confirmation, this time by Democrats, necessary if they want a full agency before then.

In fact, the Senate would need to move quicker than it did with Simington.

“I still don’t think [a Republican majority at the FCC] is going to happen, but it is far too close and much more likely than it ought to be,” Matt Wood, the vice president of policy and general counsel at Free Press Action, told the Daily Dot. “There really shouldn’t have been any question of it, yet here we are with the possibility in a few months.”

The timeline gets smaller when you consider the Congressional calendar.

The Senate is quickly running out of working days for the remainder of the year, something that Wheeler highlighted at a recent New Street Research event, according to Fierce Telecom. That means—coupled with other legislative issues—finding time to hold confirmation hearings is tough.

“We’re now down into essentially a month of legislative business in the United States Senate, and getting somebody through in this environment and in this period of time is difficult,” Wheeler said, according to the news outlet.

Chris Lewis, the president and CEO of Public Knowledge, told the Daily Dot that while he understood that the Biden administration has “a lot on its plate” like the infrastructure package and voting rights, he was “disappointed” that the president had taken this long to fill out the FCC.

“I think we’re missing opportunities to start proceedings that really take the full commission,” Lewis told the Daily Dot, adding: “Rulemaking takes time. To do it properly, with proper notice and comment, it takes time. That’s why it needed to get started earlier.”

As for Biden’s delay, Lewis said the “clock [is] winding down” before the 2-1 Republican majority becomes a real possibility.

“The longer we go in this year, the more likely it becomes,” Lewis said.

Last week, a group of senators urged Biden to name Rosenworcel the permanent chair of the FCC, saying that a designation “can no longer be delayed.” The senators argued that the infrastructure bill and other broadband initiatives needed “qualified appointees” to “coordinate the deployment effort across your administration.”

But to some public interest groups, the looming deadline only underlines why Biden should have made his plans for the FCC clear earlier.

“The Trump administration came in and just eviscerated the FCC and did away with not just net neutrality, but the entire Title II framework that millions of people fought for to ensure we had this agency protecting the public from this incredibly powerful and abusive industry. And then on his way out, they rammed through Simington—they didn’t hesitate or dance around or whatever, they just did it,” Greer, of Fight for the Future, said. “I would like our supposed champions to be as aggressive about trying to restore this agency to its ability to protect the public from the goliaths as their predecessors were at dismantling it.”

Despite the delay, observers are still hopeful that Biden will nominate a public interest advocate and not someone with ties to the telecom industry, something more than 100,000 people online have signed petitions urging the president to do. Advocates pointed to other nominations the Biden administration has made, notably Lina Khan and Alvaro Bedoya at the FTC, Tim Wu to serve on the National Economic Council, and Jonathan Kanter to serve as the assistant attorney general for the antitrust division at the Department of Justice.

“Whenever we get a full commission, from everything we hear the Biden administration is committed to these principles,” Lewis said, pointing to the executive order Biden signed urging the FCC to restore net neutrality, among other things. “We know what he believes, now we just need an FCC that can execute on those values.”