Whether Gomez Can Play Dual Roles at FCC and WRC Remains Question

Anna Gomez, for now, remains head of the U.S. delegation to the World Radicommunication Conference, which starts Nov. 20 in Dubai, while she awaits taking office as an FCC commissioner. But doing both jobs concurrently could be difficult and would require broader agreement among federal agencies. The Senate confirmed Gomez 55-43 Thursday (see 2309070081).

No legal or technical reasons prevent Gomez from holding both jobs at the same time, but there are political and policy issues, experts said. The White House would have to sign off on her playing a dual role, experts said, and there would have to be interagency agreement. The State Department traditionally has the lead role at the WRC because of the need to balance the positions of the FCC and industry with other agencies, placing Gomez, now a State Department senior adviser, in a tough position as an FCC commissioner, experts said.

Practical matters are also involved. After President Joe Biden signs the paperwork formally making Gomez a commissioner, which is expected to happen quickly, she will have to start focusing on her duties as a commissioner. She will have to get up to speed quickly on items before the FCC and those proposed by Chairwoman Jessica Rosenworcel for commissioner votes. That would be difficult to balance with the travel expected of the head of delegation in the months before the start of a WRC, said lawyers with international experience.

Three commission meetings are slated before the WRC opens, with the November meeting only five days before the conference. The Dec. 13 FCC meeting is scheduled while WRC is in progress. Members of the delegation told us Gomez continues to say she plans to fill both roles. The State Department didn’t comment Friday.

State sent a letter last week to Sen. Marsha Blackburn, R-Tenn., aimed at addressing her concerns about confirming Gomez before the conference (see 2307120073). Blackburn joined most Republicans in voting against Gomez Thursday.

State has left open the issue of who would lead the U.S. WRC delegation, and the department didn’t comment Friday. “The Administration believes this WRC comes at an important and exciting time where the potential uses for radio spectrum have increased through technological innovation as well as improved techniques for spectrum management and spectrum sharing,” the letter said.

An FCC commissioner has never headed a WRC delegation for good reasons, emailed TechFreedom General Counsel Jim Dunstan. “If nothing else, FCC rules should forbid her from discussing ongoing matters at the FCC,” he said: “Given how many spectrum dockets are open at the FCC, technically speaking, she should have very little she can talk about at WRC. That's not a good look, and probably doesn't present the best scenario for having a strong advocate at the helm of the U.S. WRC delegation.”

Dunstan noted many items have “languished” for “an astounding 32 months" because of the extended 2-2 split on the commission. One of the biggest, he said, is the agency’s statutory mandate to adopt digital discrimination rules by Nov. 15. The FCC moved the November meeting up to that date, he said. If Gomez serves in both jobs during the next 67 days, Dunstan asked, is she “really going to have time to stand up a staff, do a full review of the 1,625 (and counting) comments in the proceeding … and form her own opinion and pose questions/comments on a staff draft?”

“I assume the administration has been working to make this happen, or has a replacement in the wings,” said Public Knowledge Senior Vice President Harold Feld. The administration may have kept a potential replacement “under wraps … to avoid making it a potential issue during her confirmation,” he said. Feld noted the questions from Blackburn: “Not naming a replacement while Gomez's confirmation was pending avoided inviting any comparisons between Gomez and her replacement. Frankly, no matter who the administration named as a replacement … Republicans would have found a way to make it an issue. This kept things clean and avoided an unnecessary sideshow.” Gomez could do both jobs, but that would be difficult, Feld said.

Aside from legal or interagency agreement roadblocks, Gomez would be “in a very tough position if she must begin her tenure as an FCC commissioner while leading” the U.S. delegation, emailed Free State Foundation President Randolph May. “There’s a reason why occupying these dual roles is unprecedented,” he said. “As spectrum issues become ever more important in ensuring ubiquitous broadband access in the digital age, this WRC is very important for maintaining U. S. leadership.” May said it would be “eminently sensible” for Rosenworcel to delay consideration “at least for a few months” of the “widely anticipated Net Neutrality Redux proceeding.”

Cooley’s Robert McDowell was more optimistic Gomez could take on both jobs. “It is more than possible to do both jobs well at the same time with coordination between the FCC and State,” he said: “If that happens, State and the FCC will be more unified than ever. A dual-role Senate confirmed commissioner who’s also an ambassador could actually enhance the U.S.’s prestige at the WRC.”