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Congressional Control Undecided

FCC Veterans See Softer Hill Shift on FCC Oversight if GOP Gains Narrow Majority

The electoral battle for control of Congress remained unresolved Thursday, but former FCC officials agree with other communications sector observers (see 2210310073) that Chairwoman Jessica Rosenworcel is likely to face less critical oversight if the GOP wins either chamber than would otherwise be expected because the current 2-2 split commission has spawned relatively little controversy. NTIA could face more of the heat, experts told us. Tech policy stakeholders, meanwhile, expect a shift in the direction on Big Tech-focused legislation under GOP majorities.

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The campaigns for incumbent Sens. Mark Kelly, D-Ariz., and Catherine Cortez Masto, D-Nev., both found good news out of new batches of vote counts Wednesday night and Thursday. Kelly expanded his lead over Republican Blake Masters to just under 100,000 votes, 51.5%-46.3%, with 76% of ballots counted. Republican former Nevada Attorney General Adam Laxalt’s lead over Cortez Masto decreased to fewer than 16,000 votes, 49.4%-47.6%, with 84% of ballots tabulated. Election officials in both states estimate it could take days to complete final counts of mailed and provisional ballots in both races.

If both Cortez Masto and Kelly prevail, the Democrats would hold a minimum of 50 Senate seats. That would be enough to maintain their majority no matter the outcome of a likely Dec. 6 runoff between Senate Commerce Committee member Raphael Warnock, D-Ga., and Republican Herschel Walker. The incumbent expanded his lead by Thursday to more than 48,000 votes, 49.6%-48.3%, but would still face a runoff if that margin holds because neither candidate will have more than 50%. Cortez Masto and Kelly are considered crucial swing votes on FCC nominee Gigi Sohn since both incumbents have remained undecided on her, a key factor in her more than eight-month confirmation process stall (see 2209130065). Warnock and the 13 other Senate Commerce Democrats backed Sohn in a tied March vote (see 2203030070).

House control remained up in the air, with major news organizations calling 209 seats for Republicans and 192 for Democrats. Thirty-four races remained uncalled Thursday, with Democrats leading in 21 and Republicans in 13. If the current leaders in those uncalled races prevail, Republicans would have a slender 222-213 majority.

Rosenworcel isn't likely to face the massive number of questions from majority-GOP House or Senate Commerce committees that some former commission chairmen did after an opposing party regained control of a chamber, experts said. Republican ex-FCC Chairman Ajit Pai had to deal with more questions after Democrats retook the House (see 1811070054) four years ago. Ex-Chairman Kevin Martin faced heat from both chambers’ Commerce panels after Democrats took control of the House and Senate after the 2006 election (see 0611090132). Democratic Chairman Tom Wheeler faced more critical Senate Commerce oversight after Republicans regained control of that chamber in 2014. Four years before, Democratic Chairman Julius Genachowski faced a new battery of questions after Republicans gained a majority in the House (see 1011040114).

'Greater Scrutiny'

GOP ex-Commissioner Mike O’Rielly believes the FCC should expect more oversight if Republicans take the House or Senate by even a thin majority. “Switch of party control … ultimately means greater scrutiny in terms of frequency and intensity of FCC work no matter how big any majority,” he told us: “This will naturally influence the commission’s approach and agenda.” The “extreme closeness of both the House and Senate means legislating on communications policy may continue to prove difficult,” O’Rielly said.

More rigorous oversight is a good idea regardless of who controls Congress, said Cooley’s Robert McDowell, a former Republican commissioner. “It has been a long time since Congress has held an oversight hearing with all confirmed commissioners,” he said: “Oversight hearings are a natural and healthy part of the constitutional and democratic process. One would hope that whichever party controls either chamber that all members of the House and senators would want to hear directly from the commissioners.”

Even with a 2-2 FCC “there is a lot to discuss,” including “replenishing the spectrum pipeline, the proposed new Space Bureau, broadband mapping, planning for 6G and much more,” McDowell said. “Oversight can consume more of the commissioners’ time as they have to prepare for hearings, answer letters, field phone calls from members and their staffs.” It “also offers a constructive opportunity for the FCC to engage with Congress and to forge common ground,” McDowell said.

Facing oversight hearings is unlikely to substantively shift the agency’s plans, but it would make things “less comfortable,” said GOP former Commissioner Harold Furchtgott-Roth. He believes increased legislative scrutiny would mean the agency has to be more careful. It’s too early to know what the election results mean for Sohn’s confirmation prospects and the answer may not be clear for quite a while, said Furchtgott-Roth, a senior fellow at the Hudson Institute: “If Georgia isn’t decisive, it could freeze things” until after the runoff.

The letter House Commerce ranking member Cathy McMorris Rodgers, R-Wash., sent to the FCC and other agencies in September warning them on adhering to the Supreme Court’s West Virginia v. EPA ruling (see 2209290062) doesn’t make it clear that the GOP will “have much of an oversight priority other than stopping” reclassification of broadband as a Communications Act Title II service, emailed New Street’s Blair Levin, former chief of staff to ex-Democratic Chairman Reed Hundt. The “only way to do that is by stopping the Democrats from getting a majority” in both chambers “or by passing legislation, which I don't think they will do.”

The FCC should prepare to spend a good amount of time answering inquiries from Congress if the election results in divided government, said consultant Adonis Hoffman, former chief of staff to ex-acting Chairwoman Mignon Clyburn. Answering congressional queries can take time and that could slow the agency’s progress on Rosenworcel’s agenda, he said.

Broadband Focus?

More hostile FCC oversight seems unlikely based on the Rodgers’ letter as long as the 2-2 deadlock persists, said R Street Institute Technology and Innovation fellow Jonathan Cannon, former acting adviser to GOP Commissioner Nathan Simington. “FCC and telecom oversight does not seem to be her biggest priority” because Republicans signaled more attention to NTIA and federal infrastructure spending. “To the extent that they engage in FCC oversight, I would expect their focus to be on broadband maps and universal service programs,” he said.

There likely will be “more vigorous” oversight of the FCC if Republicans control one chamber or both, said Free State Foundation President Randolph May. “If done properly, this oversight is not a bad thing.” It’s “the way our system of government is supposed to work,” he said: “Rosenworcel, perhaps constrained by the 2-2 commissioner split, has done a pretty good job of moving forward on matters that need to get done and can get approved on a bipartisan basis, so if she stays away from matters that obviously are controversial and nonessential, like revisiting net neutrality, I would not expect increased congressional oversight to be necessarily acrimonious or untoward.”

May expects more focus on broadband spending. “Absent effective oversight of NTIA and the other agencies involved, there’s likely to be more waste, fraud, and abuse and duplicative overbuilding of existing broadband networks than there should be,” he said. “Preventing that requires serious and sustained fact-finding and digging, not showboating.”

Congress will get a bit more involved with FCC oversight regardless of what happens on the Hill, but the lack of a partisan majority should keep FCC oversight lower on the list of congressional priorities,” predicted American Action Forum Technology and Innovation Policy Director Jeffrey Westling. “The question will be what happens if the Democrats can add a third commissioner and take the majority.” The FCC “has largely held off pursuing some of” the administration’s “most ambitious priorities such as broadband reclassification because the Republicans on the commission will simply not support those initiatives,” he said: “With a majority and two years of preparation, the FCC will likely move quickly on these issues if Congress moves on a nominee.” That would mean “a much more adversarial relationship” between the FCC and Congress, Westling said.

Policymaking Shift

The real action is in the courts and the states,” so “that does not change,” Levin said. The biggest congressional policy questions will include how lawmakers will “react” if the U.S. 6th Circuit Court of Appeals “overturns” the existing USF structure in its decision on the Consumers’ Research-led legal challenge to the FCC’s 2021 approval of USF’s quarterly contribution factor (see 2110050056). He noted the possibilities of the 2nd Circuit allowing states to impose low-income pricing mandates and the FCC’s Affordable Connectivity Program running “out of money” as other potential pressure points. “That remains an unknown and the election did not change that murky picture,” Levin said. He also sees “an underappreciated chance to pass spectrum and permitting legislation” (see 2209300058).

Tech policy interests in a majority-GOP House would shift to Judiciary Committee ranking member Jim Jordan, R-Ohio, who has been at odds with Republican colleagues like House Antitrust Subcommittee ranking member Ken Buck, R-Colo., who pushed for the passage of antitrust legislation (see 2209290057). If Rodgers takes the gavel, she would be poised to continue bipartisan efforts on the American Data Privacy and Protection Act (HR-8152), which House Speaker Nancy Pelosi, D-Calif., said isn’t strong enough (see 2210130079 and 2209020059). House Minority Leader Kevin McCarthy, R-Calif., expressed vague interest in passing a new privacy law, but he hasn’t taken a stance on HR-8152.

There’s interest from both parties in a new privacy law, and it wouldn’t be fair to say Republicans want passage more than Democrats, said WilmerHale attorney Kirk Nahra. Though California Democrats opposed some antitrust and privacy efforts, it’s not accurate to say they don’t want a new privacy law, he said. But there’s a small window over the next year to get something done, he said: “I think there will be pressure on the California folks to accept a pretty good bill rather than a somewhat better bill." HR-8152 "at this point isn’t perfect, but it’s pretty good and far better than not having a national privacy law," Nahra said.

The major antitrust reform bills likely are “dead” if Republicans control the House, said University of Michigan law professor Daniel Crane. It doesn't matter if Senate Republicans like Senate Judiciary Committee ranking member Chuck Grassley, R-Iowa, appear more receptive than Jordan if there’s no movement in the House, he said: “I could be wrong, but it kind of feels like the window for legislative reform on antitrust has closed -- for now.”

Legislation on Big Tech dominance is urgent and it should be expected that Congress acts on these bills during the lame duck, said Alex Harman, Economic Security Project government affairs director-antimonopoly and competition policy. The antitrust bills are “extremely popular” with voters and “gravity-defyingly bipartisan,” he said. Jordan’s opposition is clear, but that hasn’t stopped Republican members from voting against his wishes, he said, citing House passage (see 2209290057) of the Merger Filing Fee Modernization Act (HR-3843). The need to help small competitors compete with Big Tech isn’t going away, and members of both parties will “want to address them regardless of who holds the gavel on the House Judiciary Committee.”

The outlook for privacy legislation is probably better than the outlook for antitrust legislation, said International Center for Law & Economics Innovation Policy Director Kristian Stout. Antitrust policy brings complications between consumer welfare-oriented Republicans and those behind the tech lash, he said. Though the existing privacy bills might not be the ultimate solution, the FTC’s ongoing rulemaking will put greater pressure on Congress to act, he said.