'Unacceptable': Congressional Democrats Slam Biden's Refusal to Round Out FCC

Congressional Democrats are reiterating their warning that President Joe Biden's glaring failure to fully staff the five-person board of the Federal Communications Commission could result in a 2-1 Republican majority on the panel by year's end, jeopardizing efforts to secure high-speed internet for all and restore net neutrality.

"The fact that the Biden administration hasn't done this, when broadband is such a massive priority for them, is vexing."

Despite advocating for universal broadband access and signing an executive order urging the FCC to reinstate the Obama-era net neutrality rules repealed by the Trump administration, Biden--after almost nine months in office--has yet to take the steps necessary to achieve those goals: pick a permanent chair and nominate a candidate to fill the fifth and final seat on the panel.

"Biden's delay is historic," Politiconoted Wednesday. "The closest parallels are Jimmy Carter and Richard Nixon, who waited until mid-September to name their agency chiefs."

In contrast to Biden, former President Donald Trump tapped former FCC chair Ajit Pai to lead the agency on the fourth day of his term, and by December 2017, the corporate-friendly commissioner was giving internet service providers (ISPs) the power to block or slow down certain websites while opening the potential to charge extra fees for access to "fast lanes" that would betray the bedrock principle of treating online traffic equally.

Last December, Trump nominated Nathan Simington, a former Commerce Department aide, to join fellow Republican Brendan Carr in serving on the FCC board--an appointment then-Senate Majority Leader Mitch McConnell (R-Ky.) rushed to confirm during the lame-duck session. Pai, a former Verizon lawyer, resigned on the day Biden was sworn in, creating the agency's current 2-2 split of Republican and Democratic commissioners.

Biden was praised by progressives for naming Democratic commissioner Jessica Rosenworcel as acting chair of the FCC on January 21, but as Politicoexplained, "Rosenworcel's term lapsed in June 2020, which means she'll have to leave the commission by the end of the year unless Biden nominates her and the Senate confirms her to another five-year term--a Herculean task with so few legislative days left this year and so much else on Congress' schedule."

"With Rosenworcel out," Politico reported, "the remaining Democrat, Geoffrey Starks, would become acting chair. He would have the power to set the voting agenda at monthly open meetings, but the two Republican commissioners could outvote him on every item if they so chose."

Biden's foot-dragging--long condemned by progressive advocates--has frustrated Democratic lawmakers, who are becoming increasingly vocal about the White House's refusal to fill the vacant seat and either renew Rosenworcel's term or replace her.

"There's no good excuse," Sen. Ben Ray Lujan (D-N.M.) toldPolitico. "I'm absolutely fearful that what the administration is setting up is a 2-1 Republican majority FCC under a Democratic administration. That is unacceptable."

The news outlet on Wednesday shared more Democratic lawmakers' thoughts about Biden's delay:

"We're in a hurry," agreed Sen. Brian Schatz (D-Hawaii), who joined Lujan and 23 other Democratic caucus members last month in asking Biden to name the agency's acting chair, Jessica Rosenworcel, as permanent head.
Senate Commerce Chair Maria Cantwell (D-Wash.) was demanding that the White House "go faster" in May, telling Politico, "We need names." Lujan directly raised the issue with Biden and again with Vice President Kamala Harris months ago, assuring reporters that the White House had communicated that the agency is a priority. Sen. Richard Blumenthal (D-Conn.) expressed alarm this summer, telling Politico he feels an "urgency" about the leadership gap. During a hearing last week, Rep. Anna Eshoo (D-Calif.) called the White House inaction "troubling."

Progressive observers of the FCC, Politico reported, "say it would be a no-brainer to name Rosenworcel, who has been popular among many Democrats since joining the FCC in 2012 and is known for coining the term 'Homework Gap' to describe the divide in parents' online connectivity."

"Without an immediate nomination of a pro-net neutrality fifth commissioner, Biden's promise to restore a free and open internet will... ring hollow."

"I'm super frustrated," University of Virginia professor Christopher Ali told the news outlet. "I feel that she is trying to lead an agency with both hands and both feet tied behind her legs because she can't really get anything done."

"The fact that the Biden administration hasn't done this, when broadband is such a massive priority for them, is vexing," he added.

In an August blog post, the Revolving Door Project's Vishal Shankar welcomed Biden's July executive order (EO) on telecommunications policy. In addition to calling for a restoration of net neutrality rules, "other provisions in the EO take direct aim at ISPs' growing monopoly power and lack of price transparency."

Shankar explained:

Citing a growing lack of competition among ISPs that has left millions of Americans--particularly those in low-income neighborhoods--grappling with soaring internet prices, the EO encourages the FCC to stop ISPs from entering exclusivity deals with landlords that leave tenants with only one broadband service option. The order also urges the FCC to rein in high termination fees levied by providers against customers who switch ISPs. It also restores an Obama-era price transparency plan to require ISPs to report their prices and subscription rates to the agency. Together, the EO's provisions lay out an ambitious vision for how the FCC can leverage its power to help reduce prices and expand options for consumers.

However, as several advocacy groups told Biden in a letter responding to his EO, "none of this can happen" until the president rounds out the FCC board.

Shankar concurred, warning that if the panel's vacant fifth seat "is not filled quickly, the EO's sweeping vision for the FCC will likely fail to come to fruition."

"Republican FCC Commissioners Brendan Carr and Nathan Simington have both vocally opposed the order's provisions about net neutrality and suggested the issue should be punted to Congress (where it may die at the hands of Comcast's favorite Democrat, Kyrsten Sinema)," Shankar wrote. "Rosenworcel and Democratic Commissioner Geoffrey Starks have both praised the White House's support for promoting broadband competition, but their statements will mean little if they cannot win commission votes."

"Biden must nominate a net neutrality champion to this seat immediately and urge his party to do whatever it takes to expedite their confirmation," he argued. "Given that Rosenworcel's acting term cannot be extended past January 2022, Biden would also be wise to name a permanent chair of the commission."

Shankar emphasized that "there's no time to lose."

"Since Pai and the Trump-era FCC gutted net neutrality in 2017," he wrote, "ISPs have taken advantage of an unregulated broadband market and have been caught throttling data speeds for everyone from Skype users to California firefighters. Broadband prices also soared during Pai's reign, with the average U.S. home internet bill increasing by 19% during the first three years of the Trump administration."

"The Covid-19 pandemic's unprecedented shifting of our daily lives further online (for example, Zoom classrooms and work meetings) only further emphasizes the need to protect the internet from broadband monopolies eager to throttle vital services and extract every last penny from consumers," Shankar added. "Without an immediate nomination of a pro-net neutrality fifth commissioner, Biden's promise to restore a free and open internet will--as the ACLU's Chad Marlow put it--ring hollow."