Elections Matter, Of Course. But Do Washington Norms Still Matter?

Benton Institute for Broadband & Society

Thursday, November 12, 2020

Weekly Digest

Elections Matter, Of Course. But Do Washington Norms Still Matter?

 You’re reading the Benton Institute for Broadband & Society’s Weekly Digest, a recap of the biggest (or most overlooked) broadband stories of the week. The digest is delivered via e-mail each Friday.

Round-Up for the Week of November 9-13, 2020

Kevin Taglang

Joseph R. Biden Jr. was elected the 46th president of the United States in voting that ended November 3, 2020. He will take office on Wednesday, January 20, 2021. Although we won't know the makeup of the 117th Congress until January, we can start thinking about changes in federal agencies, like the Federal Communications Commission. President-elect Biden has identified four "Day One" priorities for his administration: battling the COVID-19 pandemic, facilitating economic recovery, facing racial inequity, addressing global climate change. Broadband can play a role in each of these areas and the FCC is the agency tasked with ensuring universal, affordable connectivity. But how will FCC leadership change post-election?

The Open Seat

The FCC can only have three commissioners from the same political party and currently has a 3-2 majority of Republicans. But it won’t have the same lineup when Biden takes office. 

The term of FCC Commissioner Michael O'Rielly expired on June 30, 2019 and he will lose his seat at the commission when the 116th Congress adjourns. President Donald Trump had nominated O'Rielly for another term but that nomination was withdrawn in early August. In mid-September, President Trump nominated Department of Commerce official Nathan Simington to replace O'Rielly.

Simington joined the National Telecommunications and Information Administration (NTIA) in June 2020 after three years as senior counsel of Brightstar Corp., a wireless device recycler. His claim to fame is that he was instrumental in crafting the Trump executive order that required the NTIA to file a petition for rulemaking with the FCC requesting that the commission expeditiously propose regulations to clarify section 230 of the Communications Decency Act, which gives social media networks immunity from civil liability for how they moderate content on their networks. He then also worked on the NTIA's filing at the FCC. Commissioner O'Rielly publicly bristled at the idea and it may have cost him his renomination.

Back in September, observers predicted the Senate would have little chance to consider the Simington nomination before the election [it did not]. With Trump's election loss, a lame-duck Senate, and many other pressing matters to attend to, one might not expect the nomination to be approved before the Senate adjourns. Former FCC Commissioner Robert McDowell said it is possible “but it would have to be one of the highest legislative priorities for GOP Senate leadership." 

So how high of a priority is the Simington nomination? 

Confirmation of Simington would ensure Republicans a majority on the FCC as long as he, Brendan Carr, and Ajit Pai decide to stay on. That would be unprecedented, but legal. President Biden would name a new chairman -- most likely one of the current Democrats on the FCC, Jessica Rosenworcel or Geoffrey Starks. But Republicans would still hold a 3-2 majority and be able to block anything on a Biden agenda. Such a move would not be normal, but would prevent the new administration from any policy victories at the FCC. Does that prospect then make the confirmation a priority?

The Current Chairman

Another norm in Washington is that when a new party takes the reigns of the administration, a chairman at a commission like the FCC will resign. Technically, they can retain their seat on the commission -- as a commissioner -- but the new president is likely to name a new chairman... and a commissioners' seat can feel a bit uncomfortable after you've sat in the big chair. For example, before the 2016 election, then-FCC Chairman Tom Wheeler announced he would step down on Inauguration Day. Because the Senate failed to confirm Jessica Rosenworcel for a new term before adjourning in 2016, Republicans instantly had a 2-1 majority at the FCC under President Trump.

In 2020, which has been anything but normal, we don't exactly know if FCC Chairman Ajit Pai will step down after Inauguration Day. There are a number of possible scenarios:

  • If Nathan Simington is confirmed by the Senate and Chairman Pai remains as a commissioner, Republicans would retain a 3-2 majority at the FCC. This would be a bit of a nuclear option, but Washington has considered a number of those in recent years.
  • If Simington is not confirmed, come January 2021, the FCC has only four commissioners. In this scenario, Ajit Pai could be motivated to stay on as a commissioner so that Democrats don't have a majority at the FCC. Either Commissioner Rosenworcal or Commissioner Starks would head a split body and no controversial items would move forward. Here again, the Biden administration is denied (at least until a fifth commissioner is confirmed by the Senate) any major policy victories at the FCC without Republican support.
  •  Even if Simington is not confirmed, Ajit Pai could follow tradition and step down from the FCC. In this scenario, Democrats instantly have a majority and the gavel and could get started on the Biden agenda on January 21. 

“It really is a fascinating situation here,” former FCC Chairman Tom Wheeler said. “If Ajit sticks with precedent, then it’s 2-1 [with a Democratic majority]. If he doesn’t, then he can stymie any action until the Republicans in the Senate decide it’s time to approve somebody.”

Ajit Pai's current term ends on June 30, 2021. But the law allows that if he is not renominated and confirmed, he does not have to leave the FCC until December 2022. 

The FCC's next public meeting is November 18; expect him to get a question about his future plans then.

The Next Chairman

There will be a great amount of palace intrigue in the coming weeks about who President Biden will tap to be the next FCC chair. What we know is that Biden campaigned on having a government as diverse as America. Past that all we know is that there will be lists and lists of names floated about until the nomination is finally announced. On January 21, however, President Biden will have two choices for at least interim chair: Jessica Rosenworcel and Geoffrey Starks. 

Jessica Rosenworcel's current FCC term started with a tumultuous renomination process that actually saw her depart the commission for a time. Because of the delays in seating her, her current terms actually ended this past June and she must be renominated and confirmed by the end of next year or she will have to leave the commission. Senate Democrats rallied behind Rosenworcel in 2017 to get her back on the commission. That might bode well for her prospects in 2021 and beyond. 

Commissioner Starks has also won praise for his work at the FCC as an advocate for universal broadband, consumer protections, and government accountability. Prior to becoming a commissioner, Starks helped lead the FCC’s Enforcement Bureau, handling a wide variety of complex investigations. 

Keep in mind, President Trump tapped then-Commissioner Pai to be FCC chair immediately allowing Pai to move quickly on a new agenda. Might President Biden follow that example in naming a chair(wo)man immediately so the new administration doesn’t have to wait on a long confirmation process to install the next chair?

The Hearing

Shedding some light on possible FCC scenarios was a hearing this week on the Simington nomination. Although one might expect opposition from Democratic senators, Simington's biggest worry may be due to lack of support from Republicans.

Not all Republicans are sold on his merits, Politco reported, which means the Senate GOP may not have the political will to jam through his nomination in this brief, chaotic lame-duck period. Part of the concern is Simington's lack of experience in telecommunications. 

But during the hearing, Simington got a boost from President Trump who tweeted: "Nate Simington, a very smart and qualified individual, is having his Senate hearing today. Republicans will hopefully confirm him to the FCC ASAP! We need action NOW on this very important nomination!!"

At the hearing, Senator Richard Blumenthal (D-CT) said he was concerned that Simington was being sent to the FCC to execute the Trump order targeting social media. “It’s not that often that the president of the United States tweets about a nominee” appearing before a committee that very hour, said Sen. Blumenthal.

Simington described his role in drafting the Section 230 petition as a minor one, helping with editing and public relations. Once it became clear he was to be considered for the FCC position, he ceased active work on the matter. He said if confirmed, he would consult the FCC’s ethics counsel about the issue and abide by their recommendations as to recusing himself from a vote. Sen. Blumenthal said he will put a hold on the nomination until and unless he commits to recusing himself from any decision on the fate of Section 230.

The Committee Chair

Interestingly, Nathan Simington was not the choice for FCC commissioner of Senate Commerce Committee Chairman Roger Wicker (R-MS). Normally, a president defers to the committee chair when selecting a commissioner. By failing to confirm Simington, Chairman Wicker might actually have more influence over the next Republican on the FCC. With the O'Rielly and Pai seats open in January, President Biden could nominate a Democrat-Republican pair of FCC commissioners with Wicker, in essence, picking the Republican.

Chairman Wicker has scheduled an executive session on November 19 to markup up a mix of legislation and nominations; the Simington nomination is not on the agenda.

The Senate

Of course, the balance of power in the U.S. Senate will not be determined until Georgia completes its runoff elections in January 2021. With two seats at stake, a sweep by Democrats would mean their party controls the White House and both houses of Congress. A Democratic-controlled Senate is likely to be more receptive to and expeditious with Biden nominations. The Georgia elections, then, may have a huge impact on Joe Biden's calculus when filling out his administration.

The 2021 Commission

The FCC, we know, will look different in 2021. Even before the election, we knew Commissioner O'Rielly would depart. The election now means a new chair as well. How much more the FCC changes depends in great part on whether Washington norms will be followed. Will FCC Chairman Ajit Pai move on? Will Commissioner Jessica Rosenworcel get a new term? Will President Biden have zero, one, two, or three FCC seats to fill in 2021? 

Quick Bits

Weekend Reads (resist tl;dr)

ICYMI from Benton

Upcoming Events

Nov 18 -- Executive Session (Senate Commerce Committee

Nov 18 -- Open Meeting (FCC)

Nov 18 -- Harvesting True Breakthroughs in Rural Broadband Tech (Fierce)

Nov 18 -- November Lifeline Program Webinar (Universal Service Administrative Company)

Nov 18 -- How Broadband Enhances Local Economies (NTIA)

Nov 19 -- Platform Harms and Accountability: Preparing Civil Society to Meet New Global Challenges (NetGain Partnership)

Nov 19 -- Universal Availability: A Broadband Blueprint for Success (INCOMPAS)

Dec 1 -- Technological Advisory Council Meeting (FCC)

Dec 9 -- Champions of Digital Equality: 35th Anniversary Kickoff (MMTIC)

Dec 14 -- The Courts, The Hill and The FCC - A Year in Review and Setting the Stage for 2021 (NATOA)

The Benton Institute for Broadband & Society is a non-profit organization dedicated to ensuring that all people in the U.S. have access to competitive, High-Performance Broadband regardless of where they live or who they are. We believe communication policy - rooted in the values of access, equity, and diversity - has the power to deliver new opportunities and strengthen communities.

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Kevin Taglang

Kevin Taglang
Executive Editor, Communications-related Headlines
Benton Institute
for Broadband & Society
727 Chicago Avenue
Evanston, IL 60202
headlines AT benton DOT org

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