Questions Remain About Next Steps for Carr Following Simington's Departure
FCC commissioners may end up deciding on a single item at their June 26 meeting -- text telephone-based telecom relay service rules -- the only NPRM teed up for a vote (see 2506050056). The other items, addressing cable regulation and broadband data collection, may likely wait until the Senate confirms Olivia Trusty and restores a quorum lost with the departures of Commissioners Nathan Simington and Geoffrey Starks. The situation raises interesting issues for Chairman Brendan Carr and Democratic Commissioner Anna Gomez, officials noted.
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Until the agency has a quorum, whether the two remaining commissioners vote on anything is governed by Rule 0.212, which allows the chairperson to convene a “Board of Commissioners” consisting of current FCC members. The rule would allow approval of the NPRM but not orders that reach the "final merits" of a rulemaking, industry officials said. They pointed out, though, a potential exception: The arcane section of FCC rules says the board of commissioners can act on other items “upon a finding by the Board that the public interest would be disserved by waiting [for] the convening of a quorum of the Commission.”
Simington's departure “maybe squanders a couple of months for Carr to start initiating his agenda,” including items from the “Delete” proceeding, said Cooley’s Robert McDowell. He noted that no legal practitioners around the last time Rule 0.212 was triggered, in the 1940s are alive. "With courts no longer providing deference to agencies' interpretations of their own rules or governing statutes after last summer's Loper Bright decision, attempting to cobble together a board of commissioners for significant orders that may get appealed creates an unknowable amount of appellate risk,” he said.
Summit Ridge Group President Armand Musey agreed that Simington’s departure “seems to have the effect of hobbling Carr until another commissioner can be appointed.”
Industry lawyers said the two-member commission raises issues that have been little explored for years. Carr “will do what he can, but it puts him in a bind without any Republican support” until Trusty is confirmed, said a lawyer with wireless carrier clients.
“The problem with the agenda” is that two of the items are orders and may not be able to be approved under Rule 0.212, said Public Knowledge Senior Vice President Harold Feld. “Whether 0.212 is actually good law is debatable, but that is a different subject.”
What Carr appeared to do in his blog post Wednesday was “create an agenda that Trusty can vote on even if she is confirmed hours before the meeting,” Feld said. If Trusty is confirmed before the meeting, Carr “can go ahead with a light agenda while she gets up to speed.” If she isn’t confirmed, Carr can pull the orders, which “aren't particularly urgent,” and just vote out the NPRM.
The FCC “is in a greater state of flux than I’ve witnessed in watching the agency for close to 50 years,” emailed Free State Foundation President Randolph May. Carr is likely “gauging what he can get done, how he can do it, and when.” May warned against minimizing the importance of an order aimed at cutting outdated cable regulations. “I don’t know which rules he has in mind, but this is certainly a ripe area to swing a sharp DELETE axe, so I hope he is able to do it.”
The agenda seems "designed" not to require Republican support for Carr, said Joe Kane, the Information Technology and Innovation Foundation's director of broadband and spectrum policy. If Trusty isn’t confirmed before the meeting, the quorum issue could “prevent two commissioners from taking certain actions as the commission, even if they both agree.”