Why No New FCC Commissioner?

I’ve put off writing a blog on this question since early summer. For some perplexing reason, the Biden administration has not yet named a nominee to fill the vacant fifth seat on the FCC and has not named a new FCC Chairman. It’s perplexing because the President called for expanded broadband both before and after his election.

To those who don’t follow the FCC closely, a vacant seat matters because many FCC issues are decided on party lines. It’s been traditional for every president to put in commissioners from the same party. What makes it even more perplexing is that the term of current Acting-Chair Jessica Rosenworcel expired this summer, and she will be forced to leave at the end of the year unless the White House acts to extend her seat. If she leaves, the agency would have only three commissioners, with a Republican majority.

One of the reasons that new presidents often act quickly to name a new Chairman is due to the slow grinding processes at the FCC that must be navigated to make any changes to policy. President Trump named the past Chairman Ajit Pai in January 2017, and it took until December of that year for the FCC to vacate net neutrality. That’s almost a world speed record in terms of the FCC being able to enact a new policy.

By not filing the fifth FCC seat, the agency just spent the year since the election with two democrats and two republicans. The FCC still had a busy year, mostly due to pandemic issues, tackling robocalling, and the ongoing work to revise the use of spectrum. But no new policy questions have been raised. By losing a year, it will now take until the end of the second year of the administration to see any changes in broadband policy. As you might imagine, this lack of action is making policy wonks crazy.

Washington D.C. is rife with rumors on who might eventually be named to the FCC. I’m not naming any names, because what I’ve seen in the past is that almost every nomination to the FCC has been a surprise. Nobody saw Tom Wheeler being named as FCC Chairman under President Obama. As might be expected, there are names being suggested by different faction of the democratic party.

Part of me is not unhappy with a balanced FCC that sticks to the basics. For example, a balanced FCC is not as likely to give out billions in subsidies to the big ISPs. But there are policy issues that really need to be tackled.

Chief among them is the question of whether broadband should be regulated. This is an industry that cries for regulation. Broadband is one of the key drivers of the U.S. economy. The industry is ruled by huge carriers with immense market power, with the top four ISPs serving over three-quarters of all broadband customers in the country. This is the textbook example of an oligopoly industry that must be regulated. For some reason, we keep talking about how Ajit Pai got rid of net neutrality when what he really did was eliminate all but a few vestiges of broadband regulation. If we aren’t going to bother regulating broadband, then perhaps we don’t need the FCC at all.

The broadband industry is the only major industry that has no obligation to disclose the details of the products sold to customers. Big ISPs are free to make any claims they want about speeds, latency, and quality of broadband. Big ISPs are free to overbill customers and refuse to correct mistakes. There is no regulatory body able to scold them, much less demanding more disclosure and better behavior.

I’ve held off asking this question all year, assuming that an announcement must be imminent. As these things always work out, an announcement will probably hit on the afternoon that I post this blog. It can’t be soon enough.

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