Wait for new chairperson of the US FCC is the longest for 44 years - not that it particularly matters

Sep 6, 2021

Picture by Gage Skidmore from flickr (https://www.flickr.com/photos/gageskidmore/)

Picture by Gage Skidmore from flickr (https://www.flickr.com/photos/gageskidmore/)

  • Party political point scoring starts as Biden takes his time 
  • A lot on the FCC’s agenda but regulator currently functioning perfectly well
  • Decision must be made by January 3, 2022 at the latest

The US telecoms regulator, the Federal Communications Commission (FCC) is directed by five commissioners appointed by the President and confirmed by the Senate for five-year terms of office. The President designates one of the commissioners as chairperson. Three commissioners may be members of the same political party of the President and none can have a financial interest in any commission-related business.

Many expected that President Joe Biden would have nominated his choice of chairperson of the FCC before Labor Day, but the first Monday in September (i.e. today) will pass and the US Congress will reconvene after its August break with the Board of Commissioners the US telecoms regulator still split 50:50 along partizan political lines with two Democrat and two Republican members in post.

One Commissioner post remains vacant and currently there is no permanent Chairperson. However, the reality is that there is no immediate need for the vacancy to be filled. Mr. Biden appointed Commissioner Jessica Rosenworcel to the post of Acting Chairwoman on the day of his inauguration. She is a very safe pair of hands and the President has until December 31 this year to nominate a full-time chair. Meanwhile the FCC continues to work and regulate on bi-partizan lines on issues that are not politically contentious.

Journalists live their working lives to deadlines. All of them are important but there are deadlines that have some built-in degree of flexibility and the “drop-dead deadlines” that are as immovably fixed as Mount Rushmore and can cause sleepless nights. Politicians also work to legislative deadlines and set-terms and the usual suspects (un-named analysts and industry insiders) are now pushing for Biden to announce his choice for FCC chair this month to coincide with the upcoming House of Representatives vote in his administration’s US$1 trillion initiative to improve and upgrade national infrastructure in general and telecoms and broadband in particular. 

The FCC has a full pending agenda with very important decisions to be made, not least on ensuring genuine competition in the broadband sector as well as the political contentious re-introduction of net neutrality and a complete updating and rationalisation of US cable and broadcasting regulations. 

Critics of the President point out that the current delays in nominating a new FCC chair is the longest since Jimmy Carter was President back in the 1970s. Supporters of the administration refer to the ongoing global pandemic and medical emergency and the crisis in Afghanistan and say other matters can wait a while and will be dealt with in due course.

A look at the likely contenders

FCC Commissioners are permitted to extend their tenure until the appointment of their replacements but the constitution of the FCC states that they may not continue in post beyond the end of the next session of Congress following the expiration of their period as Commissioners. In practice, this means Commissioners can stay on for between one year and one and a half years beyond their official expiration of tenure dates but only if no replacement is appointed in the meantime. However, and in any event, the extension of time in post ends on the date the US Congress adjourns its annual session. This is no later than noon on 3rd January in any given year.

Democrat Jessica Rosenworcel’s tenure actually expired on June 2020 but has been extended until January 3, 2022, at the absolute latest. She is an FCC veteran with great experience and is a strong contender for the permanent post of Chairperson. However, over the course of the summer, the name of Gigi Sohn, who served as a counsellor to a former FCC Chairman, Tom Wheeler, has been often mentioned as an alternative option to Ms. Rosenworcel. 

Other potential candidates include sitting FCC Commissioner Geoffrey Starks whose term will expire on January 3, 2024. Yet another in the frame for Chairperson is Edward "Smitty" Smith, a telecoms lawyer who was also a legal advisor to Tom Wheeler, who chaired the FCC under President Barack Obama. Then there is  Anna Gomez, another telecom attorney who was on the staff or the FCC for 12 years and certainly knows the ropes. Outsiders include academics such as Oliver Sylvain who is law professor at the private Fordham University in New York City. He specialises in telecoms policies and telecoms law. Another is Barbara van Schewick, a law professor ate Stamford University in California and Jameel Jaffer, yet another law professor, this time of Colombia University in New York City.

The field is wide and really it’s anyone’s guess who’ll get the job but in the past President Biden has mentioned that he would prefer a woman or an African American in the post. Watch this space.

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