An FCC on Hold

It’s now 2023, and it’s been two years since Ajit Pai left the FCC and created an open Commissioner spot. It’s always been routine for the Senate to replace open Commissioner slots within a reasonable time. Washington DC has always been partisan, but the Senate has routinely approved the nominee of the sitting president, giving the administration the swing vote in the FCC and other regulatory bodies like FERC, the SEC, and the FTC. This approval is sometimes given begrudgingly, but both political parties want the courtesy of having its party get to choose regulators when it holds the White House.

For the first time in my memory, the Senate does not have the votes to approve the nominated FCC Commissioner, Gigi Sohn. This is extraordinary, and it has meant that the FCC has been on hold and we’ve had a two-year deadlock between the two Democratic and Republican Commissioners on any controversial issues.

I don’t know Gigi Sohn, but I’ve seen her speak many times, and she seems like a perfect nominee. She has more knowledge of the industry than most past new Commissioners. People from both parties who know her say she is fair-minded and that her main priorities are to look out for broadband consumers and to make sure that all voices are heard through open media. She’s even drawn strong support from conservative organizations like Newsmax, which support her nomination since she believes in open airwaves.

I don’t have any insight into why the Senate, with a Democratic majority, has been unable to muster the votes to approve the nomination. There is a long article in The Verge that postulates that the nomination has been blocked by heavy lobbying by Fox and Comcast. There are other articles saying that there is also heavy lobbying against the nomination from AT&T, Verizon, and T-Mobile. It makes perfect sense for ISPs to oppose a fifth Democratic Commissioner since one of the first items on the agenda after sitting a fifth Commissioner would be to reinstate net neutrality and broadband regulation. Large content providers want to delay adding a fifth Commissioner since the topic of media consolidation would also be high on the list of topics that a full FCC would investigate. I imagine that these big companies don’t have any personal objection to Gigi Sohn – they would just as strongly oppose any Democratic nominee.

The reality is that the big carriers and content providers are better off with a tied Commission regardless of which political party holds the White House. The best scenario for big corporations is a regulatory agency that don’t rock the boat and change regulatory rules. Big corporations hate regulatory uncertainty and regulatory change. This is true of all regulated industries, not just telecom. It says something about our body politic when lobbyists are strong enough to upset the long-standing mutual consensus in the Senate that a White House ought to be able to select qualified candidates for open slots at regulatory agencies.

There are a number of FCC initiatives that are on hold until there is a fifth Commissioner. Consider some of the following:

  • The big issue is net neutrality, which says that there should be no discrimination used in delivering Internet content. But everybody understands that the real issue at stake in this discussion is the overall regulation of ISPs. Reintroducing net neutrality means having to reinstate Title II authority or some other similar mechanism to regulate broadband. Re-regulation of broadband is the issue that the big ISPs most strongly oppose. Broadband regulation could result in many new rules that big ISPs would hate, like perhaps outlawing data caps.
  • The FCC has needed for years to increase the definition of landline broadband, which still sits at 25/3 Mbps. Equally out of touch is the definition of acceptable 4G cellular broadband set by the FCC at 5/1 Mbps.
  • The FCC recently ordered broadband labels that are supposed to inform customers about their home broadband. The FCC got this authority through the IIJA legislation. But oddly, since the FCC doesn’t currently have the authority to directly regulate ISPs, the Commission can be stymied by ISPs that blatantly fail to honestly disclose the facts to the public.
  • The FCC is considering spending up to $9 billion on subsidies to improve rural cellular coverage. It’s a great idea, but there needs to be a fifth Commissioner to make sure this isn’t just a handout to the giant cellular carriers and not another boondoggle like RDOF.
  • There are probably not the needed votes in the current Commission to impose penalties against ISPs that continue to falsely report to the FCC mapping database.

This article might have a short life if the newly seated Senate finally approves Gigi Sohn. But lobbying money carries a lot of weight in DC, and it’s possible that I’ll be publishing an update to this article next January.