Tate Likely to Be at FCC for Most of Martin’s Remaining Months
FCC Commissioner Deborah Tate is unlikely to win a second term on the commission, but will probably be in office through the end of December or early January, government and industry officials said. Without Tate, FCC Chairman Kevin Martin would have to win support on various items from a four member commission, split evenly between Democrats and Republicans.
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Tate’s vote is potentially significant on the pending Verizon Wireless-Alltel merger, approval of Sprint Nextel’s WiMAX partnership with Clearwire and universal service and intercarrier compensation reform. “Tate has been Martin’s safe vote on a number of major items,” said a wireless industry attorney. “If Tate is around into January, it means he won’t be faced with the same split on the commission.”
Tate, whose term expired in June 2007, will have to leave as soon as the Senate adjourns sine die. But the Senate is expected to stay in session on a pro forma basis into January so President Bush can’t temporarily fill judgeships and other federal posts through a round of recess appointments that bypass the Senate.
Under federal law, a recess appointee serves through the first term of the next Congress, or for approximately a year into the next presidency. Tate could potentially receive a recess appointment as well. Former FCC Commissioner Susan Ness received such an appointment from President Clinton in December 2000 and stayed on as a commissioner until she was replaced by Kathleen Abernathy.
“You'd be giving Bush the opportunity to make recess appointments,” said an FCC official of an early Senate adjournment. “I would be shocked if the Senate goes out sine die before they come back. On Jan. 2 or 3 they come back, they gavel out the old Congress sine die and they gavel in the new Congress.” An industry source said in addition to concern over recess appointments, Senate leaders want the flexibility to come back into session if they see the need to do so.
Tate was sworn in as a member of the FCC in January 2006. Her re-nomination has been pending before the Senate since June 2007. Tate’s best chance to win approval for a full term faltered this year when Martin refused to strike a deal with Sen. Harry Reid, D-Nev., that would have allowed votes this year on new terms Tate and Jonathan Adelstein. In return, Martin would have agreed to leave the FCC if a Democrat is sworn in as president in January.