Biden’s delay is historic: No previous president has waited this long to appoint a chairman of the five-member body. The closest parallels are Jimmy Carter and Richard Nixon, who waited until mid-September to appoint their agency heads. But Biden missed that deadline, alarming Democrats on Capitol Hill who have few legislative days left this year to confirm which candidates the president might nominate.
The White House did not respond to a request for comment on the delay.
“There is no good excuse,” Senator Ben Ray Luján (DN.M.), who chairs the Senate Commerce Subcommittee on Communications, Media and Broadband, told POLITICO. recent interview. “I am absolutely concerned that what the administration is putting in place is a 2-1 Republican-majority FCC under a Democratic administration. This is unacceptable. “
“We are in a hurry,” agreed Senator Brian Schatz (D-Hawaii), who joined Luján and 23 other Democratic caucus members last month in asking Biden to appoint the agency’s acting president, Jessica Rosenworcel, at the permanent head.
Senate Commerce President Maria Cantwell (D-Wash.) Demanded the White House “go faster” in May, telling POLITICO: “We need names.” Luján directly raised the issue with Biden and again with Vice President Kamala Harris months ago, assuring reporters that the White House had communicated the agency was a priority. Senator Richard Blumenthal (D-Conn.) Expressed his concern this summer, telling POLITICO he felt an “urgency” over the lack of leadership. In a hearing last week, Representative Anna Eshoo (D-Calif.) Called the White House’s inaction “disturbing.”
The five-member agency is already short of a Democrat, leaving the parties in a 2-2 split. Meanwhile, Rosenworcel’s term on the committee expired in June 2020, meaning she is due to leave in late 2021 unless Biden appoints her and the Senate confirms her for a new five-year term.
If she leaves without a replacement, the role of interim president would fall to Junior Democratic Commissioner Geoffrey Starks. He would have the power to set the voting agenda at monthly FCC meetings, but – like Rosenworcel – would need GOP support to move anything forward. The two FCC Republicans could prevail over decisions about broadband expansion, approval of telecom mergers and the level of regulatory control to be placed on ISPs, which could limit what it brings to the vote .
The White House’s lack of activity sends K Street and Capitol Hill on a spiral of speculation and rumor.
Whoever Biden chooses will have a perch to shape the president’s policies regarding broadband and open Internet. Many people interested in the result also see their choices as a signal of the administration’s commitment to give voice to under-represented populations or constituencies.
The Hispanic Congressional Caucus called on Biden to nominate a Latino person, for example, for a seat on the FCC. And progressive advocacy groups want Biden to avoid candidates with connections to the telecommunications industry – pressure that may have excluded some candidates this year. Several House Democrats had endorsed Biden’s transition team member Edward “Smitty” Smith – a telecommunications attorney who worked to get the Trump-era T-Mobile-Sprint merger approved – for the position of chairman of the FCC. But he recently accepted a promotion at his law firm, telling many he was out of the pack.
At one point this summer, industry lobbyists and Hill collaborators were convinced Rosenworcel, who stood by Biden’s side as he signed a major executive order on competition, was a lock for the job. Then came a wave of speculation surrounding veteran progressive public interest Gigi Sohn in July. Attention recently turned to Catherine Sandoval, a former California regulator who helped thwart a merger between AT&T and T-Mobile a decade ago.
Starks, the FCC’s other Democrat, is also in consideration for president and has support from civil rights groups and members of the Congressional Black Caucus.
Meanwhile, the clock is ticking.
“I guess they’re probably checking some names,” Cantwell said of the White House.
Biden appointed Rosenworcel as the agency’s acting chief in January, and she has since led eight open FCC meetings. But without a Democratic majority, she was forced to find a consensus with the agency’s two Republicans.
This resulted in agendas devoid of partisan fireworks but still full of activity. Among the actions carried out so far: establishment of multi-billion dollar pandemic assistance connectivity programs; the launch of a grant program to help rural wireless operators extract controversial Huawei and ZTE equipment from their networks; and this month, a much-publicized auction of 5G waves. But the commission did not take more contested progressive priorities like the revival of guarantees of net neutrality or the requirement of a “nutrition label” for the Internet bills of consumers.
Observers from the left-wing agency say it would be obvious to name Rosenworcel, who has been popular among many Democrats since he joined the FCC in 2012 and is known to have coined the term “Homework Gap” to describe the divide in parents’ online connectivity. .
“I’m super frustrated,” said Christopher Ali, a professor at the University of Virginia who studies broadband. “I feel like she’s trying to run an agency with both hands and both feet tied behind her legs because there’s really nothing she can do.”
Rosenworcel also probably can’t plan far in advance without knowing if she will be the permanent leader, Ali added. “It is upsetting that the Biden administration did not do this when broadband is such a high priority for them,” he said.
More and more, his anxious supporters are speaking out.
Rosenworcel, a former member of the Senate, has long proven adept at acquiring allies, and 2021 has been no different. Earlier this year, dozens of House Democrats eager to see the FCC secure its first permanent female president offered their support, as did education and public safety groups and the Communications Workers of America. In September, half of the Democratic Senate caucus and Rep. Mike Doyle (D-Pa.), Who heads the House Telecommunications, Energy and Commerce subcommittee, pushed Biden to nominate her.
More than a dozen education groups wrote to Biden about it in late September, as did a mix of online safety advocates. A trio of groups from the music community turned up the volume in their own letter last week.
“I have literally never heard a negative word about Jessica Rosenworcel from a US senator, Republican or Democrat,” Schatz said. “She is well respected in the private sector, among advocacy organizations and in Congress.”
Rosenworcel received a similar groundswell in 2013, when 37 senators urged then-President Barack Obama to appoint Rosenworcel as president, after she had been on the committee for a year. Obama ultimately chose former telecommunications executive Tom Wheeler, who has remained influential in Biden circles.
Then again, half of Senate Democrats did not sign the latest pro-Rosenworcel letter, led by Senator Joe Manchin (DW.Va.).
While Schatz and some Democratic offices told POLITICO not to read anything about the number of missing names, non-signatories included progressives such as Sens. Elizabeth Warren (D-Mass.) And Bernie Sanders (I-Vt.), Whose offices do not comment. Biden’s other tech picks this year – such as Lina Khan at the FTC, Jonathan Kanter at the DOJ, and Tim Wu at the National Economic Council – have been winners with the Progressive Bloc.
Many believe that Wu, known for coining the term “net neutrality”, is a central player in the selection of FCC candidates.
And Rosenworcel has alienated some Democrats in the past. During the Obama years, it proved to be a fickle deciding vote on the FCC’s Democratic majority, and progressives criticized it for sparking an attempt to overhaul the cable box market. Democratic Senators Ed Markey of Massachusetts and Ron Wyden of Oregon even briefly blocked his nomination in late 2016 because of their anger.
Although Wyden now supports Rosenworcel as president, Markey – a veteran member of the Senate Trade Committee who has long been instrumental in telecommunications debates – was notably absent from the recent letter. The progressive Massachusetts Democrat is also the former boss of Ron Klain, Biden’s chief of staff.
Markey confirmed to POLITICO that he is not yet expressing his support in one way or another, stressing the importance of the position and noting the ongoing internal deliberations.
“I’m still talking to my staff,” Markey remarked. “We’re still reviewing it and trying to figure out what Biden’s agenda would look like.”
Republicans, meanwhile, see the status quo as an unexpected giveaway. They hope they can continue to delay partisan fights that would likely win out over their views, touting what they see as a productive bipartisan agenda under Rosenworcel’s 2-2 split.
“It always makes me laugh a little when I think about how busy the agency has been,” Brendan Carr, the agency’s senior Republican commissioner, told reporters after the agency’s August meeting. “I’m sure the staff would disagree with ‘the FCC deadlocked’.”