Democrats Would Control Agenda in GOP-Dominated FCC

The scenario has played out before. Republican Dennis Patrick was minority chairman December 1987-August 1989 after Republican Mimi Dawson left and a 2-2 commission became a 2-1 commission. Throughout that period, former Senate Commerce Committee Chairman Fritz Hollings, D-S.C., refused to hold confirmation hearings for President Ronald Reagan's two Republican nominees. Patrick's 2-2 FCC repealed the fairness doctrine in 1987. In an FCC where the chair isn't the majority “it becomes extremely important for the chair not to surprise the other commissioners,” Patrick said in an interview. “You have to let them know what is coming up and collaborate with them to the extent you can.” Patrick conceded that relations between the parties are more contentious now than in the 1980s but said collaboration has always been hard on lightning rod issues such as the fairness doctrine, but “it can be done.”

“A surprising amount will depend on chemistry,” emailed Peter Pitsch, Patrick’s then-chief of staff: “Our dynamics were generally good, both in terms of personalities and policy druthers, but then my memory may be a tad rose-colored. However, I do remember both [Democrats] Jim Quello and Patricia Diaz Dennis being in sync with our deregulatory predilections.”

Benton Institute for Broadband & Society Senior Counselor Andrew Schwartzman agreed going 2-1 won’t change the FCC’s day-to day-operations much, but “to say ‘oh well, it won’t be a whole lot different’ doesn’t address the escalating damage” to a progressive agenda, he said. “There are all manner of initiatives that have not been started and will be further delayed.”

Republican Commissioner Brendan Carr told us "what we’ve seen over the last nine months with a 2-2 FCC is we’ve gotten an awful lot of really good common-sense things done” via consensus, and “I’ve got no reason to expect that type of productivity would change if the numbers at the FCC change” to a GOP majority. “We’ve implemented” the $7.17 billion emergency connectivity fund and $3.2 billion emergency broadband benefit programs, which “were not easy lifts” and “we worked to the center and compromised,” he said.

Starks would still have “a tremendous amount of power” over the FCC agenda if he becomes acting chairman facing a GOP majority, Carr said. “There’s really no vehicle for bringing items up at the monthly meeting absent the chair deciding what we vote on.” There can be up to five commissioners, but “at the end of the day it’s the FCC chair who’s going to decide on when we vote and what we vote on,” he said. The mechanism for Republicans to get things on the agenda of a 2-1 FCC is “persuasion,” Carr quipped at a September news conference.

“A 1-2 commission would be a new formulation for me, but I doubt it changes the items or goals all that much more than the current structure,” said former Commissioner Mike O’Rielly. “It’s already generally a milquetoast agenda and that’s just fine,” he said: “Even against my better interests, I think it's an unfathomable notion that the current acting chair, who is exceptionally capable and ideologically aligned with the liberal movement, wouldn’t be selected and approved by then, making this moot.”

Functionally there’s little difference between a 2-2 commission and a three-person FCC with a minority chair, said Matthew Berry, chief of staff under former FCC Chairman Ajit Pai. “To get things passed, you’d still need at least one Republican commissioner,” said Berry.

Starks is interested in consensus by nature, and a 1-2 FCC with him as acting chairman would likely operate that way, Pai told us. More-controversial policy moves a Democratic majority might pursue, such as resumption of Title II regulation of ISPs, can’t be done now with a 2-2 FCC, and the same would hold true for 1-2 agency, he said. However, Pai added, “the bread-and-butter work would go on,” such as spectrum auctions, infrastructure initiatives and telehealth programs.

Delegated Authority

Pai said Starks would have the option of directing staff to do more on delegated authority -- a step Rosenworcel seemingly hasn’t taken. Pai said the level of delegation has been relatively consistent across parties and different chairs and an uptick on delegated authority would be unexpected.

Pai said it was helpful to be tapped in January 2017 as permanent chairman, even though he wasn’t confirmed for another nine months, because it let him “hit the ground running.” He said it’s not clear if Rosenworcel has felt hindered by being acting chairwoman. He said being permanent chairman let him “speak firmly on behalf of the agency.” In situations where the FCC is getting pushback from other agencies on such issues as the 5.9 GHz band, “one might speculate it would be difficult for the FCC to mount a defense given there might not be a permanently empowered lead of the agency,” he said.

Pai said he's “as surprised as anybody else” there still hasn’t been a nomination for a permanent FCC chair. Whether one gets confirmed this year seems dicey, he said. “There aren’t a lot of legislative days left,” and the Senate has big legislative priorities before it, he said.

“I think the commission has operated well for the last nine months or so,” Berry said. A “harmonious environment” is the only way to get orders adopted when the chair doesn’t have a majority, and that keeps commissioners from “rocking the boat.” There’s no rules mechanism that would let the Republican commissioners get items on the FCC agenda without the chair’s assent, said Berry. With just three commissioners, the agency’s must-vote rules wouldn’t even apply, he said.

Agenda Setting

The most significant power a chair has is controlling the agenda, and it’s hard to see how even with numerical dominance a minority party could usurp that, emailed former Commissioner Henry Rivera, now at Wiley. The chair would be compelled to work with the minority commissioners and get support from at least one of them to get any item passed, and the minority commissioners “would have enormous leverage to get what they wanted passed and to get the chair to place items they want on the agenda -- much more leverage than they currently have,” he said. A commissioner has some control over the agenda by pulling an item, but “this privilege is limited and used sparingly” he said.

The reconstituted FCC could still get things done, said former FCC Commissioner Robert McDowell, who noted a three-member FCC sometimes works more “harmoniously” than a five-member commission. “When Mike Copps, Jonathan Adelstein and I were the only three commissioners for six months in 2009, we took care of the digital TV transition, medical body area networks and voted unanimously on 50 important items,” he said. McDowell was also on a 2-1 FCC in 2012, which got things done, he said: “There's no reason a quirky 2-1 GOP majority led by a Chairman Starks could not get a lot done. And there is a lot for them to do, especially [on] spectrum.”

Minority party numerical dominance of a regulatory agency “happens occasionally,” most typically in the first year of a new president’s term as some positions haven’t rotated over, said Center for American Progress Director-Financial Regulation and Corporate Governance Todd Phillips. The Federal Deposit Insurance Corp. and National Credit Union Administration currently have Republican majority boards, he said. Since an agency chair typically sets the agenda and decides what gets voted on, it can result in a stalemate where the chair can bring up items, but others will vote them down and the minority party has the votes to pass what it wants, but the chair won’t bring those items up for a vote, he said.

'Win for the People?'

Chairs also have power to tell staff what to do, as agency staff largely reports to the chair and not the commission as a whole, Philips said. So in a 1-2 FCC, the chair can tell staff to take sub-regulatory steps such as issue guidance documents regardless of whether there’s GOP support, he said.

“While some have called a 2-1 Republican majority a ‘nightmare scenario’ the reality is this FCC has worked diligently for consensus bipartisan achievements,” emailed Nathan Leamer, a former aide to Pai, citing efforts to close the digital divide and protect consumers. “The current commissioners should be commended for going beyond the letter next to their names and instead finding ways to work together. I have no reason to think that would not continue.”

“The operational realities are that little will change,” said Institute for Policy Innovation research fellow Bartlett Cleland. “Agenda items not garnering two Republican appointee votes will not move forward regardless of who sets the agenda. The political optics are certainly odd though, however, perhaps the FCC becomes a place next year where much can be done through genuine collaboration rather than a retreat to predictable political posturing. Just maybe the country could get a win for the people instead of for the political class?”