Senate GOP Will Likely Expedite Trusty Confirmation After Simington, Starks Exit FCC

“I look forward to continuing to serve the public interest in the years ahead and to contributing to the vital conversations surrounding our communications infrastructure, national security, and technological leadership,” Simington said. “I remain committed to advancing the cause of limited government, free speech, and American innovation.”

Simington said the FCC “is in excellent hands" under Carr's leadership, but officials and lobbyists told us the commissioner’s departure sent shock waves through the chairman’s office and among telecom-focused conservatives, who had counted on Starks’ previously planned exit to shift the commission to an outright Republican majority before the Senate votes on Trusty.

Starks’ definitive resignation announcement followed a few hours after Simington’s, leading some officials to question whether the commissioners coordinated. Starks announced his departure plans in March (see 2503180067) and later clarified that the FCC’s May meeting would be his last as a commissioner. “Serving as a Commissioner has been the highlight of my career,” Starks said Wednesday. “I am immensely proud of all that we have achieved together.” Some telecom lobbyists wondered between the announcements whether Senate Democrats would pressure Starks to stay on to challenge Carr.

Simington Chief of Staff Gavin Wax told us the commissioners didn’t coordinate their departures, and Simington’s “personal and professional needs” dictated his decision to exit this week. He has another job lined up, but it isn’t clear yet where, industry and agency officials told us. Wax said Simington's “departure is obviously a great blow, and the commission will be losing a huge intellectual force.”

Lobbyists had for months expected Simington to leave the FCC this year (see 2412040046), but at one point, he promised to stay until the Senate confirmed a Republican to replace former Democratic Chairwoman Jessica Rosenworcel so as not to endanger a GOP majority, a former Republican commission official told us. Simington’s relationship with Carr has increasingly “soured” since the November presidential election, the official told us, and he decided to leave now because he was “tired of waiting” for the Senate to move on Trusty, whom President Donald Trump nominated in mid-January (see 2501160077).

Confirmation Timeline

Senate GOP leaders quickly indicated after Simington’s resignation announcement that they would place a renewed priority on confirming Trusty to create a Republican FCC majority. “I suspect” Simington’s departure will increase pressure on the Senate to move quickly on Trusty, Majority Leader John Thune, R-S.D., said in a brief interview.

Senate Commerce Committee Chairman Ted Cruz, R-Texas, said the chamber should “absolutely” prioritize Trusty’s confirmation. Senate leaders as recently as last week appeared on course to bring up Trusty or NTIA administrator nominee Arielle Roth no sooner than right before the upper chamber breaks for the week leading up to the July Fourth holiday, with lobbyists at the time telling us their confirmations were more likely to happen in the lead-up to Congress’ August recess (see 2505290053).

Wax declined to comment on rumors that Trump might nominate him to fill Simington’s seat. Several right-leaning telecom officials and lobbyists told us some top Senate Republicans would likely have major concerns about nominating Wax, given his brief time on Simington’s staff, his lack of other telecom policymaking experience and a history of controversial social media posts. Lobbyists noted that when Trump nominated Simington to the FCC in 2020, he faced similar inexperience concerns but could at least point to a stint as an NTIA senior adviser (see 2009150074). Trump may decide to leave Simington’s seat empty in tandem with not picking a Democratic nominee to succeed Starks, several officials said.

“There’s no doubt that Simington is a competent individual,” but “taking the bully pulpit was not his strong suit,” said Strand Consult President John Strand. He said he expects Simington to move into industry since he knows a lot about finance. “For some people, a political landscape like the one at the FCC just isn’t a good fit.”

New Street’s Blair Levin said he expects a Senate vote in a matter of months. “But that is not a certainty as Senate time is precious and Senate concern over the [budget] reconciliation bill may take all the time and political capital,” he said in a note to investors.

Quorum Questions

The upcoming lack of an FCC quorum may have little practical effect, lawyers and former FCC officials said. The agency will still be able to do many things on delegated authority, and Carr’s FCC was already largely doing that because he hasn’t had a majority, said Democratic ex-FCC Chairman Tom Wheeler. Carr will still be “running the commission and having major impact without commission votes.”

Without a quorum, “nothing ‘new or novel’ that requires a commission vote can be acted upon,” Cooley’s Robert McDowell, a former Republican commissioner, said in an email. “We are frozen for now.” He predicted that “Democratic Senators placing holds on almost every confirmation [means] it may be a while before … Trusty can ride to the rescue. In the meantime, the chairman will have to rely on items that can be worked on by bureau action.”

If the FCC needs to act without a quorum, such as during its June 26 meeting, an obscure agency rule could allow for votes with just two commissioners. When a quorum isn't available, the rule allows the FCC chair to convene a “Board of Commissioners” consisting of the current FCC members. It's allowed to vote on rulemakings but barred from deciding hearing proceedings, acting on applications for review or recon petitions, or making adjudicatory decisions, including merger approvals. The FCC could use the procedure to vote on uncontroversial items that Carr and Democratic Commissioner Anna Gomez support, but it likely couldn’t act on matters such as the Skydance/Paramount deal or VTel Wireless' recon petition against the extension of 5G buildout deadlines, attorneys and former FCC officials said.

Joe Kane, the Information Technology and Innovation Foundation's director of broadband and spectrum policy said in a post on X that the last use of the board of commissioners rule he could find was in 1947. The rule's wording appears to indicate that the FCC intended it for emergencies where a quorum of commissioners was temporarily unavailable, said Pillsbury attorney Scott Flick.

Former FCC General Counsel and Wiley partner Tom Johnson said in a post that invoking the board of commissioners rule would be “a valid exercise of the Commission's authority” under language in the Communications Act, which allows the FCC to delegate functions to a panel of commissioners.

Actions taken on delegated authority or without a quorum are easier to challenge in court, so it’s unlikely that the FCC would make controversial moves until there are three commissioners, especially given expectations that the Senate will confirm Trusty relatively soon, attorneys told us.

The prospect of an incoming GOP majority after Trusty’s confirmation also means it’s unlikely that the Trump administration would seek to push the boundaries of the board of commissioners rule by firing Gomez and leaving Carr the sole commissioner, attorneys told us. They said rules approved by a one-member commission would face an uphill battle in court.

Carr has demonstrated in his first months as chairman that he doesn’t “need a majority to do most of what he wants to do,” Levin said. “Partly this is due to defining the job differently than past chairs, emphasizing the power of the bully pulpit to cause Congress and others to act more than relying on formal FCC decisions.” Carr has also “used his own power over merger reviews and enforcement actions to accomplish what he wants without a full Commission vote.”