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Biden's Unplayed 'Layup'

GOP Unlikely to Aid, Hinder Growing Chances FCC Majority Flips, Thune Says

Republicans are unlikely at this point to actively aid or diminish the chances of a possible 2-1 GOP-dominated FCC (see 2110080046), with acting Chairman Geoffrey Starks at the helm, come January, Senate Majority Whip John Thune, R-S.D., said in an interview. Such a scenario appears to be a growing possibility given the evenly divided Senate and a White House that hasn’t nominated anyone to the FCC almost nine months into Joe Biden's presidency. Acting Chairwoman Jessica Rosenworcel’s term expired in June 2020, meaning she would have to leave Jan. 3 absent Senate reconfirmation.

A 2-1 majority-GOP FCC “seems like” more likely with each day that passes without Biden naming his picks for the two Democratic seats that require nominees, said Thune, the Senate Communications Subcommittee's ranking member: “They haven’t been able to get their act together on that” so far and “there are a lot of Democrats who have a view about that and it doesn’t seem like the White House is listening much these days.”

I don’t think” the GOP caucus is going to “go out of our way to block” Senate confirmation of any Democrats Biden names to the FCC, Thune told us: But, it's also unlikely Biden will nominate people whom “most Republicans would support anyway because I’m guessing they’re going to be people who will have a very heavy hand on the regulatory wheel.” Democrats raised concerns in December about possible GOP blocks of Biden FCC nominees (see 2012020069).

Senate Democrats are treating seriously the specter of a looming FCC GOP majority, citing it as a major reason they’re increasing the pressure on Biden to name his picks (see 2109220049). “This has been a priority for me since the beginning of the year” and Biden administration officials were saying “every few weeks” as early as March “that these positions would be filled” imminently, Senate Communications Chairman Ben Ray Lujan of New Mexico told us. "The clock is running" out fast given there are only four legislative weeks scheduled before the end of the calendar year.

'Have to Hurry'

They have to hurry” and announce their nominees, said Sen. Brian Schatz, D-Hawaii: The FCC “would grind to a halt” under a GOP majority even with a Democratic chair. “This is why you win an election, so you can have people” at independent agencies “who will implement your policies,” he said. “This should be a layup” for Biden and “there’s still time, but layups have to be completed. They don’t just give you the 2 points.”

All five commissioners need to be in place for the FCC to fully function, Lujan said, questioning why it would be “in anyone’s interest to not have a fully functioning FCC” given the billions of dollars in broadband money it’s responsible for disbursing. Schatz, Lujan and other Democratic caucus members who signed a letter last month urging Biden to finalize his nominees and name Rosenworcel as permanent chair (see 2109230064) told us they haven’t received any response.

The three Senate Commerce Committee Democrats who didn’t sign onto that letter -- Chair Maria Cantwell of Washington, Ed Markey of Massachusetts and Raphael Warnock of Georgia -- told us they don’t outright oppose making Rosenworcel permanent FCC head. “My staff and I just wanted a little more time to think about” whom to back for the post, Markey said.

The Biden administration has already “ignored other things we’ve said,” so it’s not clear how much value a pro-Rosenworcel letter would have now, Cantwell said. She also wanted to give Rosenworcel the opportunity to win the nomination on “her own.” Warnock said not to “read too much into” his not signing on to the Rosenworcel letter. “We’ll say more about that” later, he said.

The continuing ebb and flow in the prospects for Georgetown Law Institute for Technology Law & Policy’s Gigi Sohn to get an FCC nod remains a factor. White House Office of Legislative Affairs Director Louisa Terrell is among the Biden administration officials pressing for Sohn despite pushback from some centrist Democratic senators, Hill aides and lobbyists told us. Several public interest groups have also recently been engaged in a “quiet effort” writing the administration in favor of a Sohn nomination, lobbyists said.

Communities Closing the Urban Digital Divide and the D.C. Education Coalition for Change Friday launched a Twitter campaign Friday using the hashtag “#WeNeedAFifthCommissioner” and directed at White House Chief of Staff Ron Klain. The Artists Rights Alliance, MusicAnswers and Songwriters Guild of America jointly wrote Biden Thursday urging him to name Rosenworcel permanent chair.

'Mischief'

Never underestimate the mischief a 2-1 GOP majority could make,” former Commissioner Michael Copps told us: “It would be dangerously irresponsible to let that happen, and so utterly unnecessary.”

A full slate of commissioners could still be sworn in by year's end,” said former Commissioner Robert McDowell. “With cloture no longer needed for FCC confirmations, even a 50-50 vote with Vice President [Kamala] Harris casting the tie-breaker could win the day,” he said: “If it is true that previous potential nominees were too far to the left for some Democratic senators to stomach, one question will be could moderate or vulnerable Democrats … vote to confirm a new hard-left candidate who is less familiar to Washington insiders?”

McDowell said former Democratic Senate staffers and lobbyists are telling him that “it will take a cram-down of Herculean proportions in a 50-50 Senate to get the FCC at full strength before sine die.”

Let’s say the President announces someone tomorrow,” said former FCC Chairman Tom Wheeler. “I would think the Republicans would not be hesitant to make it challenging for that person to be confirmed,” he said. Wheeler’s own confirmation was delayed for months in the Senate in 2013.

My guess is that the White House will end up renominating Rosenworcel as chair as a default, then the Senate will have to find time to get the confirmation hearing in before the end of the year,” said TechFreedom General Counsel Jim Dunstan: “At some point they'll realize the crisis that awaits them is more important than squabbling over $1 trillion versus $3 trillion in new spending" at issue in budget reconciliation talks.

Concerns about a 2-1 GOP-dominated FCC are “overstated,” said Princeton University assistant professor Jonathan Mayer: “There is still sufficient time for the White House and the Senate to avoid that outcome.”