Tag Archives: Commissioner Simington

FCC Lack of Quorum

When FCC Commissioner Nathan Simington recently announced his resignation and quickly departed, the FCC was left in an unprecedented situation where there are only two remaining Commissioners – Chairman Brendan Carr and Commissioner Anna Gomez. The consequence of the sudden vacancy is that the FCC no longer has a quorum.

Commissioner Simington’s departure was a surprise because even a week before the announcement, he was suggesting new areas of regulation the FCC might want to tackle. For example, he suggested that streaming TV services ought to be regulated the same as traditional cable companies. He had also just hired a new Chief of Staff. Commissioner Simington ended up leaving on the same day as Commissioner Geoffrey Starks, a departure that’s been known for months.

The sudden lack of quorum creates some interesting problems for the agency. The legislation that created the FCC clearly states that three Commissioners must be present to have a quorum. And a quorum is needed to vote on anything important like a rulemaking, petitions, applications, or major initiatives from the various FCC Bureaus.

The solution might be on the way since Olivia Trusty is in the midst of the Senate confirmation process to become the next FCC Commissioner. However, the Senate has a lot bigger issues on its plate right now, and there is no guarantee they will vote on that nomination soon. The Senate has also been sitting for months on the nomination of Arielle Roth as the new head of the NTIA – along with many other open positions around the government.

There is no easy answer of what happens if the Senate takes a while to fill a third Commissioner slot. A lot of the FCC’s work is done by the various Bureaus. These are the folks who approve that new wireless devices meet standards. These folks issue routine licenses for microwave links. The Bureaus issue renewals of the various licenses required by companies operating in the industry. The agencies gather data like the FCC maps.

Harold Feld wrote a detailed article about the legal specifics of what happens next. He expects that Commissioner Carr will direct the Bureaus to conduct business as usual, although there is a possibility that anybody harmed by an action of the Bureaus while there is no FCC quorum might be able to successfully claim that Bureaus have no authority when the FCC itself has no authority.

According to statute, the remaining two FCC Commissioners are largely powerless to do anything other than administrative functions. There are a lot of issues on the plate at the FCC right now. The Supreme Court could decide at any time that the Universal Service Fund is unconstitutional, and without a Quorum, the FCC couldn’t take a stab at fixing whatever faults the Court might find with the USF. That means the many things the USF does would come to an immediate halt.

The FCC is in the middle of its streamlining effort it has labeled Delete, Delete, Delete. The FCC is expecting to get authority from Congress soon to begin the process of auctioning spectrum. The FCC is considering a big merger between Paramount and Skydance. The FCC recently got an emergency petition from Echostar to try to stop the cancellation of its spectrum. Until a quorum is reestablished, the agency can’t take action on these, and many other actions.

It’s hard to believe that with a normal complement of five Commissioners we’d end up without a quorum – but here we are, in uncharted legal waters.

Shut Down the FCC?

Thomas Lenard of the Technology Policy Institute wrote an op-ed for the Wall Street Journal suggesting that it’s time to shut down the FCC. The Technology Policy Institute is a well-regarded think tank that concentrates on advancing knowledge to inform policymakers. The FCC recently initiated the Delete, Delete, Delete effort that asked the industry and the public if there are unneeded FCC regulations that should be taken off the books. The response was so overwhelming that if every suggestion was implemented there would be little left of the agency.

Mr. Lenard thinks shutting the FCC is in keeping with the Administration’s effort to streamline government by shutting down unneeded agencies. He suggests that the agency has met its original role, which was to regulate monopoly telecommunications services and to promote telecom competition.

He has a good point. The FCC was created by the 1934 Telecommunications Act specifically to oversee the Bell System monopoly along with radio and telegraph service. The agency watched the sunset of telegraph service and the diminishment of radio. It expanded its reach to regulate cable TV and cellular service. All of the industries overseen by the FCC are now highly competitive. Traditional cable TV is seemingly headed on the same death spiral as telegraph service and paging. At least in cities and suburbs, people have a wide array of competitive choices for telecom services. Satellite communications is rapidly growing to fill in the gaps in rural broadband, texting, and mobile voice. The FCC hasn’t overseen any major new policy since implementing the Telecommunications Act of 1996.

There are precedents of federal agencies that put themselves out of business. The Civil Aeronautics Board and the Interstate Commerce Commission were closed when their original regulatory mission was no longer needed, with any remaining functions moved to the Department of Transportation. The push towards government efficiency probably means a lot more agencies will disappear.

If the FCC disappeared tomorrow, it would create a void in a few areas. Mr. Leonard suggest the useful functions could be moved to other agencies. It would make sense to move spectrum management and the Universal Service Fund to the Commerce Department under the NTIA. The other big useful push from the FCC in recent years is the attempt to clamp down on robocalls and spam, and that function could be moved to the FTC.

Mr. Leonard argues that, for the most part, the FCC is now an agency looking for a reason to exist. The agency is suddenly concentrating its effort on asserting authority over content on the public airways, something that is far removed from the agencies stated purpose. Commissioner Simington recently suggested the FCC should regulate streaming video. When a regulatory agency begins looking for new things to regulate, it’s probably at the end of its original mission.

There are those, including me, who think the remaining FCC’s mission is to protect the public from telecom monopolies. But in all honesty, the agency hasn’t made much effort to help the public in decades, other than perhaps with robocalling. The FCC has been a textbook example of regulatory capture where the industries being regulated have all of the sway and influence.

The Administration proposes to shut a long list of agencies, including the Department of Education, the US Agency for Global Media, the Federal Mediation and Conciliation Service, the Woodrow Wilson International Center for Scholars, the Institute of Museum and Library Servies, the US Interagency Council on Homelessness, and the Community Development Financial Institutions Fund. Is it time to add the FCC to that list?