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Few Partisan Decisions

With String of 4-0 Votes, Rosenworcel Has Runway for More

Jessica Rosenworcel's tenure as FCC acting chairwoman has featured bipartisan unanimity. Former commissioners and others don't see her running out of noncontroversial agenda items soon. They told us to expect issues that could be contentious, such as revisiting net neutrality and new orbital debris rules, to be back-burnered until a third Democratic commissioner is appointed, breaking the current 2-2 balance. Current commissioners credit Rosenworcel including them in decision-making and communicating with them.

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Tough votes loom “once we get a full complement of members, but a chair's approach can still make a difference,” said former acting Chairman Michael Copps, now at Common Cause. “A chair's reaching out to colleagues and recognizing it is a five-member commission, not a one-member corner office, can lead to better outcomes on many issues, even some of the contentious ones.” Disagreements are likely “assuming the new commission is truly serious about exercising its authority to protect the public interest,” he said.

Rosenworcel presided over three meetings and 16 unanimous votes on such items as preliminary 3.45 GHz auction rules (see 2103170061) and updated rules for a program to pay for replacing Huawei and ZTE equipment in U.S. networks (see 2102170049). Also getting unanimity were orders on circulation regarding establishment of the $3.2 billion emergency broadband benefit program (see 2102250064), rules for a second round of pandemic telehealth program (see 2103300063) and modified orbits for thousands of planned SpaceX satellites (see 2104260044). Rosenworcel's office didn't comment Friday.

The April 22 meeting had unanimous OKs requiring disclosure on broadcast content sponsored by foreign governments and an NPRM on text-to-988 (see 2104220074). Commissioner Brendan Carr said then that there were "very, very few" decisions at the agency based on politics. He said numerous spectrum items could likely advance with bipartisan support, such as 2.5 GHz and 6 GHz: "There are a lot of really, really impactful things in the pipeline for us to do." Carr said Rosenworcel's tenure "has been remarkably productive. ... No one is getting everything they want," with both sides compromising: "There are a lot more things we can do like that, and I expect we will." Rosenworcel told reporters her office was "working closely with our colleagues at the agency and trying to find consensus as much as we can and do as much as we can" while there's a 2-2 split. "Coordinating with them is how we are going to make progress."

The FCC "can go quite a while on its current trajectory," with numerous items deserving attention that could garner 4-0 votes, said former Commissioner Mike O'Rielly. Items getting adopted "are more than 'B-level' items," he said. Bigger-ticket items likely are still being worked on behind the scenes, he said. The agency can go "a long time" tackling noncontroversial items, agreed former Commissioner Robert McDowell, now at Cooley. The vast majority of FCC votes are unanimous even with five commissioners, and enforcement matters, spectrum issues and robocalls usually get full support, he said. “A lot of what the FCC does, there's no need for it to be partisan," he said. "It's not usually a philosophical thing." Some contentious issues, like Communications Act Title II broadband classification, likely won't get addressed in a 2-2 FCC, he said. "That's just one item out of thousands."

Some Unity

Some broadband and spectrum items can get unified FCC OK, even after the agency returns to its full complement of members, many agree.

And there likely are “ample” relatively straightforward, noncontroversial items to provide rulemaking fodder for the FCC for a long time, said consultant Adonis Hoffman. There isn’t necessarily much pressure to come up with rulemakings, industry attorneys said. Bureaus can handle most situations on delegated authority, and the FCC doesn’t have to have votes at monthly meetings, said Pillsbury's Scott Flick. The first two meetings of 2021 were largely based on presentations. If needed, the agency could “tread water” for a long time, Hoffman said.

The uncertainty could discourage initiating items that require a long lead in, Flick said. Rosenworcel’s office might not want to begin something that it can’t be sure it will get to finish, he suggested. That could lead to her office keeping its powder dry until the FCC’s makeup is settled. It likely wouldn’t be difficult for the agency to find small rulemakings that won’t get challenged by Republicans, Flick said, citing several of the then-Chairman Ajit Pai media modernization items.

Once it has a fifth commissioner, the FCC should still focus on areas with bipartisan agreement, including broadband deployment and freeing up spectrum, said Josh Withrow, National Taxpayers Union Foundation director-technology policy. “It does sound like net neutrality, in some form or another, is likely to be early on the menu and that’s going to turn everything very partisan very fast,” he said.

President Joe Biden’s current spending proposal, $100 billion for government broadband investment, “could crowd out the increased private investment that was the hallmark of the last administration,” said Jessica Melugin, director of the Competitive Enterprise Institute’s Center for Technology and Innovation. “With a Democratic majority, it’s certainly more likely that the emphasis shifts from getting more spectrum into highest and best use in private hands and clearing away the regulatory underbrush ... to top-down government programs, like municipal broadband,” she said.

Disagreement Rising

The level of partisan disagreement is rising, said Brent Skorup of George Mason University’s Mercatus Center, citing the fight over rules for citizens broadband radio service. “Democrats seem to favor more experiments with shorter license terms, no presumption of renewal, smaller license areas, and regulated sharing in order to promote smaller operators and new technologies,” he said: “Republicans resisted most changes because those policy experiments require more FCC intervention and make long-term network investments riskier.” With no imminent auction raising those questions, “the new commissioners could find more agreement than their predecessors,” though “it’s likely there will be partisan disagreements on spectrum assignment in the next few years,” he said.

Net neutrality will be the biggest fight, predicted Kristian Stout, International Center for Law & Economics director-innovation policy. “There are some spectrum issues hanging out there, but none of them strike me as likely to be highly divisive.” Items like the future of Lifeline “are going to require negotiation, but they don’t strike me as highly partisan.” If Rosenworcel isn’t made permanent chair, he warned of “tensions on the Democrat side of the commission which could create roadblocks.”

Broadband "mapping will continue to be a huge issue,” said Shane Tews, American Enterprise Institute visiting fellow. “Lack of coordination by the federal government between FCC, NTIA, and [the Universal Service Administrative Co.] on federal grants is appalling,” she said: “You have state and local governments using other maps created by consultants. Not much of the data match up.”

The 2-2 partisan makeup “is an opportunity” to try to build consensus, which often leads to better policy, said ACA Connects President Matt Polka. “It takes leadership ... to get to 4-0.” A third Democrat could lead to more voting along political lines, though “I hope not,” he said. The months of the four commissioners having to work together on policy “may serve to build relationships,” he said.