Is the Federal Communications Commission Out of Commission?

The five-member Federal Communications Commission has just two commissioners—Chairman Brendan Carr and Commissioner Anna Gomez.  Which means, for the first time since anyone can remember (perhaps ever), the FCC lacks a legal quorum to do business. So what happens? Does that mean the FCC just shuts down? Does the agency proceed on autopilot? Turns out, like so much these days, the answer is both complicated and unclear.  Section 154(h) of the Communications Act says: “Three members of the Commission shall constitute a quorum thereof.” That seems fairly straightforward. If you don’t have a quorum, you can’t do business. Two is less than three, so the Commission has no quorum and can’t do any business. Simple, right? But Section 155(c) gives the Commission the authority to delegate most of the routine functions (and some non-routine functions) to a variety of employees, individual commissioners, or a “panel of Commissioners.” The Commission has therefore delegated a good deal of authority – particularly on technical and routine stuff, which is actually the bulk of what the FCC does – to the various bureaus and offices that make up the agency. In addition, Rule 0.212 allows the Chair (or acting Chair) to create a “Board of Commissioners” of all the Commissioners present and able to act (here, Chairman Carr and Commissioner Gomez).