President Biden finally made his picks for the Federal Communications Commission on Tuesday, ending a baffling delay that forced Democrats to operate in a 2–2 deadlock with Republicans instead of the 3–2 majority that the president's party typically enjoys.
The names themselves are familiar. Jessica Rosenworcel, who has been acting FCC chairwoman since January, was designated the permanent chair. Biden will also fill the empty Democratic slot on the commission by nominating Gigi Sohn, a longtime consumer advocate who was an FCC official during the Obama years. Then-FCC-chair Tom Wheeler chose Sohn in 2013 to serve as his counselor, a role in which she advocated for strong net neutrality rules and Title II common-carrier regulation of internet service providers.
Biden was able to promote Rosenworcel from acting to permanent chair immediately, because the president can choose any sitting commissioner as chair. But Rosenworcel's current five-year term had already expired, and she would have to leave the FCC entirely in January if she doesn't get a new term. That means Biden has to submit nominations to the Senate for both Rosenworcel and Sohn, and the Senate has to confirm them to avoid giving Republicans a 2–1 majority at the beginning of 2022.
The nominations were reported Monday night by Politico and The New York Times and were announced by the White House on Tuesday. In her nearly 10 years as an FCC commissioner, Rosenworcel “has worked to promote greater opportunity, accessibility, and affordability in our communications services in order to ensure that all Americans get a fair shot at 21st century success,” the White House said, adding:
From fighting to protect an open internet, to ensuring broadband access for students caught in the homework gap through the FCC's Emergency Connectivity Fund, to making sure that households struggling to afford internet service stay connected through the Emergency Broadband Benefit program, she has been a champion for connectivity for all. She is a leader in spectrum policy, developing new ways to support wireless services from Wi-Fi to video and the internet of Things. She has fought to combat illegal robocalls and enhance consumer protections in our telecommunications policies.
Senate confirmations often take a few months or longer, but the Rosenworcel and Sohn nominations will presumably be fast-tracked given the circumstances.
Sohn Was Nearly Biden’s Chair Pick
In 2001, Sohn cofounded consumer-advocacy group Public Knowledge, and she was president of that group until going to work for Wheeler at the FCC. Biden had reportedly floated Sohn's name for the chair slot months ago but dropped that plan after behind-the-scenes opposition from senators. A Sohn-led FCC might have resembled the Federal Trade Commission under Lina Khan, a Biden pick who is turning the FTC into a more aggressive antitrust regulator.
"For over 30 years, Gigi has worked to defend and preserve the fundamental competition and innovation policies that have made broadband internet access more ubiquitous, competitive, affordable, open, and protective of user privacy," the White House said in its announcement of her nomination.
Not having Sohn as chair is probably a bit of a relief for the big telecom providers who oppose virtually every plan to regulate the broadband and cable TV industries. In July, reports of Sohn's potential nomination led Bernstein media analyst Peter Supino to write, "As chairwoman, we think Sohn would probably pursue a form of broadband price regulation." He also wrote that "were Sohn appointed, we would expect cable stocks to tumble."
ISPs have generally defined "price regulation" extremely broadly—they claimed that Wheeler's net neutrality plan was essentially rate regulation even though Wheeler never proposed limits on consumer broadband prices. But while full-blown price regulation is unlikely even in a Democratic administration, Sohn's history as a consumer advocate suggests she might have taken more direct steps to lower broadband prices if she had become chair.
Though Rosenworcel and Wheeler usually agreed on the major telecom-regulatory questions, Rosenworcel was less enthusiastic about strict regulation than Wheeler and Sohn in one notable instance. In 2016, Rosenworcel declined to vote for Wheeler's plan to require TV providers to make video applications for third-party set-top boxes. Wheeler wanted to make it easier for consumers to avoid paying the hardware-rental fees demanded by TV providers; the cable industry launched a major lobbying campaign against it, and Rosenworcel said that Wheeler's plan was too complicated.
Rosenworcel Voted for Net Neutrality Rules
But Rosenworcel supported Wheeler's other major initiatives, such as net neutrality rules based on Title II and broadband-privacy regulations that were blocked in the early months of the Trump administration. She also consistently opposed Republican chair Ajit Pai's deregulatory agenda during the Trump years.
She has spent years advocating for closing the "homework gap," in which many children don't have the home-internet access needed to complete school assignments. And despite not having a Democratic majority, she has been busy as acting chair with the implementation of pandemic-related relief programs and onerous tasks such as fixing the mistakes Pai made when awarding ISPs money from a $9 billion fund.
If Biden originally wanted Sohn as chair to make the FCC a more aggressive regulator of the broadband industry, having Sohn as a commissioner on a Rosenworcel-led commission may be a way of compromising with senators who opposed the Sohn pick. But he could have made this decision months ago, and his delay, combined with the upcoming Senate confirmation process, will prevent the FCC from making any moves opposed by Republicans Brendan Carr and Nathan Simington for the first year of Biden's term as president.
One possible reason for Biden's delay is that Rosenworcel's husband, Mark Bailen, is a media lawyer for a firm that represents clients with business before the FCC. "The White House screens all potential nominees' spouses for possible financial conflicts of interest," and the "Biden administration has brightened that line in an effort to distinguish itself from the ethical lapses of the Trump administration," The New York Times story on Rosenworcel's appointment noted. Bailen told the Times that his firm, BakerHostetler, maintains "an effective firewall that excludes me from any work or any discussion of any work related to the FCC." Rosenworcel said that she and her husband "lead very separate professional lives."
An FCC ‘Dream Team’
Consumer advocacy groups have been calling on Biden to make the FCC picks for many months. However, Free Press president Craig Aaron said the choices "were worth the wait." Aaron was referring to the Rosenworcel and Sohn picks and to Biden's nomination of Alan Davidson as director of the National Telecommunications and Information Administration. Aaron wrote:
This is a dream team for anyone who cares about the future of the internet and the media. Nominating Rosenworcel, Sohn, and Davidson would demonstrate the Biden administration's commitment to making media and tech policy that will actually serve people.
While these choices were worth the wait, there's no time to waste and so much to get done: ensuring the billions being invested in broadband actually reach those who need it most, restoring net neutrality and Title II, reckoning with media regulators' history on race and repairing the damage of the Trump years. We urge the Senate to move as quickly as possible to advance all of these nominees.
Public Knowledge president Chris Lewis praised the nominations as well, saying that all three nominees "have years of experience in fighting for the public interest in broadband policy, whether it is in government or the nonprofit sector." Lewis noted that Rosenworcel "would be the first woman to lead the FCC in a non-acting role" and that "Sohn would be the first openly LGBTQ commissioner at the FCC and the first whose career comes almost exclusively out of the public interest advocacy community."
In addition to Rosenworcel and Sohn, the long-awaited Democratic majority on the FCC will include current commissioner Geoffrey Starks. Benton Institute senior counselor Andrew Schwartzman said that "Jessica has carefully and successfully met the challenge of managing a divided FCC over the last nine months. In addition to supervising implementation of the Covid-era Emergency Broadband Benefit, Jessica has been able to obtain bipartisan votes on important spectrum and cybersecurity policies, even as she has advanced her agenda emphasizing bringing the benefits of broadband to America's young people and their families. Gigi's arrival will enable the FCC to address a number of important initiatives that have been set aside pending the arrival of a third Democratic commissioner."
This article originally appeared on Ars Technica.