FCC Seen Having Very Busy Months in Early 2024
Industry lawyers and analysts expect a busy start for the FCC in 2024, with the 3-2 Democratic majority able to approve items without the FCC’s two Republicans, and Chairwoman Jessica Rosenworcel eager to address priorities before the usual freeze in the months before and after a presidential election.
Some big items appear likely in the spring, with revised net neutrality rules topping the list, industry observers told us. Other issues, such as allowing fixed wireless use of the lower 12 GHz band and final 4.9 and 5.9 GHz rules, have a well-developed record and appear ripe for FCC action, officials said. There are 14 items on the FCC's circulation list, with the oldest a March 2022 NPRM on potential rules for siting facilities in flood plains (see 2310110039).
Expect Rosenworcel to take on the “more controversial high-priority items” early this year, leaving other things for summer and fall, emailed former Democratic commissioner Michael Copps, a special adviser at Common Cause. The biggest “hot button” item is restoring net neutrality rules as soon as possible, Copps said. “Time is of the essence in all of this.”
For Copps, other likely priorities include “getting high-speed, affordable broadband out to all Americans,” digital discrimination rules and spectrum items, especially if the commission gets its auction authority back. In addition, Copps said he's hoping for “a really comprehensive and forward-looking Quadrennial Review.”
Former Republican commissioner, Cooley’s Robert McDowell, said this FCC is in an unusual position headed into an election year because it took so long for the administration to get a majority at the agency. Action on the more partisan “top priorities” was delayed, he said. The conventional approach is for the FCC to tackle controversial issues requiring 3-2 votes early in a presidency, he noted. “The Rosenworcel FCC will be known in part for being dealt a hand that reverses the order of all that -- the partisan 3-2 votes will be flowing until election day,” McDowell said.
The FCC has had almost four months since Democratic commissioner Anna Gomez took office “to begin moving quickly on those issues that will get the most attention from the general public,” like net neutrality rules, said Jon Peha, Carnegie Mellon University engineering and public policy professor and former FCC chief technologist. Decisions are likely on those issues, including broadband labels, in the spring, he said, noting there’s more to do after that.
Media attorneys expect movement on broadcast regulation. The chairwoman “has an opportunity now that she hasn’t had before to advance her agenda,” said Brooks Pierce broadcast attorney Coe Ramsey. Some media matters -- such as action on workforce diversity and TV blackouts -- go along with Rosenworcel’s support for digital equity and aiding consumers, a former 10th-floor aide told us. The FCC could take more action along those lines in 2024, the aide said.
“Rosenworcel will likely kick it into high gear now that she has what appears to be a very cooperative majority,” said Fletcher Heald’s Francisco Montero. Gomez is unlikely to break ranks often with Rosenworcel, he predicted. With the election looming, “Rosenworcel sees this as the final sprint to craft her legacy at the agency and, who knows, move on to bigger things” in a second Biden administration or to the private sector if there’s a second Trump administration, he said.
“There’s a mad rush to finish things that are underway, not necessarily even to start new things,” said former FCC engineer Michael Marcus, an adjunct professor at Northeastern University. On the wireless side, the laser focus on 5G has distracted from other FCC work, he said.
Andrew Schwartzman, Benton Institute for Broadband & Society's senior counselor, agreed that the early months of 2024 will be busy. Rosenworcel could “punt” until after the election some controversial items that aren’t “time sensitive,” he added.
Rosenworcel “almost certainly will go full steam to try to get controversial, and, in my view, unwise items adopted,” Randolph May, president of the Free State Foundation, said in an email. He mentioned net neutrality, digital discrimination, and the MVPD early termination fee proposals. “In reality, in each instance, consumers are likely to be harmed by the commission’s actions,” he said.
The FCC “will be very busy” but its agenda may not prove important “from the perspective of the economy or society,” New Street’s Blair Levin said in an email. The most important communications policy issue “in terms of people impacted” is whether Congress provides additional funding for the affordable connectivity program, and the future of the USF is before the courts and Congress, he said.
The biggest economic question is whether Dish Network “can establish itself as a viable fourth facilities-based wireless provider without going into bankruptcy,” Levin said. The FCC may become involved, “but that is primarily about market forces, not policy, though it has huge policy implications,” he said. The future of the lower 3 GHz band, the most important for carriers, is before Congress, NTIA and DOD, he noted. “The FCC seems to be distant from the communications issues that matter,” he said.
With the 2018 QR order issued at the end of December, a 2022 review order is expected early this year. The FCC is likely to spend much of 2024 in litigation over the 2018 QR, attorneys told us.
“All eyes will be on the appeal that is expected to come soon,” said Kathleen Kirby, Wiley broadcast attorney. Broadcasters will have 60 days to file a court challenge of the 2018 order once it appears in the Federal Register. NAB is widely expected to do so. Like the 2018 version, the 2022 QR isn’t expected to relax broadcast ownership rules. “I’m not expecting anything significant to help radio,” broadcast attorney Dawn Sciarrino said.
Some media lawyers said the FCC could eliminate the UHF discount, a policy where UHF stations count less toward the national cap on broadcast station ownership. The discount was enacted when those stations were less desirable for broadcasters, but that hasn’t been true since the digital transition. Current and former FCC officials told us they are unaware of 10th floor discussions about eliminating the discount, but it has long been viewed as a possible move for Rosenworcel. “The UHF discount is something that the chairwoman has long said makes no sense,” said Kirby. Eliminating the discount would likely result in prolonged litigation, the attorneys said.
With 2024 an election year, Kirby said the FCC could also act on political ads. As a commissioner, Rosenworcel was a proponent of requiring machine-searchable databases of political ad buyer information from broadcasters (see 2112200018). The FCC also reached consent decrees with a host of broadcasters over political file violations during Rosenworcel’s administration (see 2202040044) On the other hand, it's possible the FCC will punt, as an election year is too sensitive a moment for dealing with such matters, a broadcast industry official said.