David Oxenford

By: David Oxenford, Wilkinson Barker Knauer

It was just a few weeks ago when we posted our article talking about how June would bring a Republican majority to the FCC, speculating as to what deregulatory issues would be on the Chairman’s agenda.  Last Wednesday morning, I was on a video call with a broadcast association’s Board of Director, passing along the same message.  Only minutes after I left that call, the news came Republican Commissioner Simington had announced his departure from the FCC effective last Friday.  Shortly thereafter, Commissioner Starks, the Democrat whose planned departure was to have given the Republicans a majority on the FCC, announced that last Friday would also be his departure date.  Suddenly, the FCC had only two Commissioners – one Democrat and one Republican – not even enough for the quorum necessary to do business in the normal course.  So thoughts of quick action on changes to the FCC’s ownership rules or on the many deregulatory Delete, Delete, Delete proposals that have been made seem to be on hold for the moment.  What is likely to happen?

First, it must be remembered that already pending is the nomination of Republican Olivia Trusty to the Commission seat that was vacated when Jessica Rosenworcel left her role as Chair of the FCC upon the change in administration.  Trusty has had a confirmation hearing and was approved by the appropriate Senate committee. All that stands between her and a seat on the FCC is approval by the full Senate – which would then provide the FCC with a quorum and a Republican majority.  But, watch as there could be delays in that confirmation process.

The Senate is currently preoccupied with dealing with the issues presented by the President’s One Big Beautiful Bill Act, and there are rumors that there may be Democratic Senators putting a “hold” on Trusty’s nomination unless there is an accompanying Democratic nomination to the FCC.  So far, it does not appear that the President has made nominations for any open Democratic seats on any federal regulatory agency, so a Democratic FCC nominee may not be a high priority of this administration. If a hold is placed on a nominee, then 60 votes (as opposed to a majority) would be needed for approval.  Thus, some Democratic Senators would have to vote in favor of her nomination for her to ascend to the open seat – and getting those votes may take time to organize.  There are also rumors circulating about potential nominees to fill the other FCC vacancies so that all could be processed at once – but again, the full Senate approval processes would be required (with a nomination hearing, a committee vote, and action by the full Senate).  With the One Big Beautiful Bill Act taking Senate time, and summer recesses looming, it is possible that this delay could drag out.

While the Communications Act does permit the FCC to take some actions without a quorum, taking significant actions, like changing the media ownership rules, do not appear to be among those permitted activities (though this lack of a quorum is very unusual, so we don’t have much precedent to guide us as to what is and is not permissible).   As in the case of most FCC processes, there is a provision that allows the FCC to take action if necessary to protect the public interest.  Perhaps a court ruling requiring action by the FCC in response to the appeal of the 2023 ownership decision would fall in that category, or perhaps the statutory requirement to timely complete a 2022 Quadrennial Review, would be seen as in the public interest.  But we are in unprecedented times so we will just have to wait to see what comes next.

In the interim, the lack of a quorum does not prevent the Commission staff from going about their ordinary business.  Routine assignment applications and technical changes should proceed in their normal course as these applications rarely require action of the full Commission.  The FCC’s staff has the “delegated authority” to approve these routine actions with the staff actions becoming effective without need for the Commissioners’ approval.  Similarly, the Enforcement Bureau would be able to proceed with routine investigations, and penalties for violations of the rules.  Only very large fines, or appeals of staff actions on routine applications, could be held up by the lack of a quorum.  This lack of a quorum, unlike the funding shutdowns we have seen in the past, does not stop everything at the FCC – but only those matters requiring approval of the full Commission.

These are unprecedented times for those of us here in Washington.  We will all be watching to see how the FCC handles this unexpected turn of events.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access). There are no additional costs for the call; the advice is free as part of your MAB membership.