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Biden faces looming deadline for FCC pick as acting chair's term winds down

It may be the telecom industry's biggest job opening of the year.

Since January, the U.S. Federal Communications Commission has been deadlocked in a 2-2 partisan split, and the White House has yet to nominate a new commissioner to complete the agency's typical five-person lineup. With Congress about to emerge from its August recess, President Joe Biden has four months before the end of the calendar year to make a pick. Policy experts indicated that September is a reasonable time to expect an announcement, notably when the U.S. House of Representatives votes on the $1 trillion bipartisan infrastructure package.

The commission has a mounting to-do list ahead of it, with items stemming both from executive orders from the White House and a long-term broadband subsidy making its way through the House. Biden must soon announce a nominee if the commission is to have any hope of tackling more ambitious — and contentious — policy items like restoring net neutrality protections or spurring competition in the broadband market, policy experts said.

Historic vacancy

"I have no doubt the White House has plans to have the administration side of the government fully up and operational [by September]," said Ernesto Falcon, senior legislative counsel at the Electronic Frontier Foundation. "This really is a make-or-break moment."

The selection process is, in fact, the longest in 44 years for an FCC nomination, prior to former President Jimmy Carter nominating Charles Ferris as FCC Chair in October 1977. Falcon said a delay of some kind was inevitable due to the administration inheriting a pandemic, while other experts noted that everything from delta variant fears to the ongoing crisis in Afghanistan could explain why Biden has yet to name his choice.

"We're relatively deep into the administration compared to past presidents," said Doug Brake, director of broadband and spectrum policy at public policy think tank Information Technology and Innovation Foundation, who added that he is hoping the commission will soon have a full slate.

But the current vacancy is not the only pending empty seat. FCC Acting Chairwoman Jessica Rosenworcel's term is already running on overtime. Rosenworcel, who served as a commissioner under former Chairman Ajit Pai in the Trump administration, saw her term expire June 30, 2020. Since that time, she has been serving under a grace period known as a "holdover" that ends either when a replacement is confirmed or at the end of the congressional session the following year. Unless she is reconfirmed, she will have to leave the commission in January 2022.

The White House did not respond to requests for comment.

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The cost of the holdup

"The delay is very problematic," said Andrew Schwartzman, senior counselor at the Benton Institute for Broadband & Society, adding that the slow selection process may keep the agency from performing normal business such as spectrum auctions or broadcast license renewals. For Schwartzman, many folks in the telecom space are "freaked out" about the selection delay, adding that the appointment gap seems "out of character" for the administration.

Others argue the commission as it stands can still carry out its duties, especially on bipartisan issues.

"I was there for seven years and for large chunks of time we had less than a full complement of commissioners," said Robert McDowell, a former Republican FCC commissioner and partner at Cooley LLP. He noted the current commission has made progress in areas like addressing excessive robocalls.

Rosenworcel's dilemma

The bigger hurdle, McDowell said, is the uncertainty around Rosenworcel's future. If Biden nominates her for another term or selects her as permanent chair, she will have to go through the Senate confirmation process. If he does not, she may not want to initiate a process that she will not be around to see through.

"There’s a disincentive for her to initiate longer-term projects unless she has to," he said. "She may not put forth something bold on the table until she knows her fate."

Those long-term projects do not necessarily have to be asks from Biden, such as reinstating net neutrality, said McDowell, and can instead be projects that help advance America's position in the global telecom space, including the deployment of 6G networks.

Former Republican FCC Commissioner Michael O'Rielly said the incomplete commission has had very little impact on regular tasks, but partisan issues will require a 3-2 majority to pass when the time comes to vote. He added that every additional month of delay also puts the commission at risk of facing a Republican majority in the House, assuming it flips in next year's midterm elections.

"This should have been wrapped up many months ago, no matter how low a priority you put the FCC," said O'Rielly, now a visiting fellow at the Hudson Institute's Center for the Economics of the Internet.

Who can it be now?

The Biden administration has a progressive checklist for its FCC pick, with experts saying Biden will likely nominate a woman, a person of color, a person who has never been affiliated with the telecom industry, a person who worked for the Obama administration, or some combination of these criteria.

Rosenworcel is a major contender for permanent chair, but some sources were mixed about her likelihood of selection because of timing concerns. O'Rielly said the delay has indicated the White House will go in a different direction than the acting chairwoman, while Schwartzman said her chance at candidacy is strong because the confirmation process would be easier than most given her time spent with the agency.

Gigi Sohn, former president and co-founder of interest group Public Knowledge, was also named frequently by sources. Sohn previously served as counselor to former FCC Chairman Tom Wheeler. Edward Smith, managing partner at Washington, D.C.-based law firm DLA Piper and a former adviser in the FCC, was also mentioned.

Well-known broadband academics are also on the table. One source who works on telecom policy suggested Fordham University law professor Olivier Sylvain, Stanford University law professor Barbara van Schewick and Columbia University law professor Jameel Jaffer as possible contenders.

Biden's choice will ultimately be shaped by what he thinks is best for the telecom industry, ITIF's Brake said. He pointed to the pick of outspoken Big Tech critic Lina Khan to lead the Federal Trade Commission.

Biden has called on federal agencies to crack down on Big Tech and tackle both competition and price transparency among broadband providers. He also encouraged the FCC to reinstate net neutrality protections alongside other measures to make broadband pricing more transparent and affordable.