Lately, there has been a lot of news about all the political jockeying at the FCC over who will stay and who will go, plus who must leave and who will be appointed. Will he or she be a Republican or Democrat? Will the Democrats stay? Wait….what? Democrats stay? Didn’t Trump win the election? How can that be? These are all good questions, so we thought a primer on how the FCC works might be in order.
The FCC is not a cabinet level agency and so it is not part of the Executive Branch like the Commerce Department or the State Department. Instead, it is an independent agency created by Congress, like the FTC or the SEC. The FCC regulates interstate and international communications by radio, television, wire, satellite and cable in all 50 states, the District of Columbia and U.S. territories. As an independent government agency, it is overseen by Congress (not the President), and the five commissioners are appointed for fixed but staggered five-year terms.
Under the statute that created the FCC, the President appoints all of the commissioners but he/she can only appoint three from the same party. The other two must be from another party or no party at all. The President is also given the authority to select who will be the chair of the FCC. All appointments must be approved by the Senate. The FCC requires a minimum of three (a quorum) to function.
Applying these rules to the current drama at the FCC, we had five commissioners (three Democrats and Two republicans — remember Obama was allowed to name three from his party). When Trump was elected, he could not just throw out the Democrats because they are appointed for a fixed term, although he can change who the Chair will be. Currently, bets are that the senior Republican Ajit Pai will be the Acting Chair until President Trump selects a permanent Chair.
But also in the interim, the term of one of the Democrats (Jessica Rosenworcel) was set to expire. She had been reappointed by Obama but the Republicans in the Senate were not going to reconfirm her unless they had some assurance that Chairman Wheeler would step down. For obvious reasons, they didn’t want the new Administration to be saddled with a majority Democrat FCC. Because Chairman Wheeler waited so long to announce his plans for departure as of Inauguration Day, the Senate was unable to confirm Rosenworcel at the last minute before her term expired (even if it had been otherwise inclined to do so) and she was out. That meant that there would be two empty seats as of January 20, leaving two Republicans and one Democrat. In that scenario, President Trump could appoint one Republican (making a total of three GOP commissioners) and one person from another party (remember it doesn’t have to be a Democrat as long as it’s not a Republican). But wait! Just when we thought Commissioner Rosenworcel was history, President Obama (who is still President until January 20th) re-appointed Jessica Rosenworcel. So she might make a Lazarus-like comeback.
Meanwhile, Mignon Clyburn is serving a second five-year term on the Commission which will officially expire on June 30 of this year. However, there’s a grace period, called a “holdover,” after an FCC commissioner’s term expires, which ends when a replacement is confirmed, or at the end of the congressional session in the year following expiration of their term, whichever comes first. The holdover period for Clyburn ends December 2018.
Ajit Pai is the senior Republican on the FCC; he was nominated by President Obama and his term expired on June 30, 2016; his holdover ends this December.
Michael O’Rielly, the other Republican and the newest commissioner, was also nominated by President Obama. His term expires in December 2019 and his holdover period ends in December 2020.
Regardless of whether Rosenworcel is confirmed by the Senate, President Trump will still have to appoint his third Republican. It’s not certain if that person will be the new Chair or if President Trump will make Pai permanent Chair if he serves as interim Acting Chair.
Most recently, Clyburn was acting FCC chairwoman while Congress deliberated over Wheeler’s confirmation. Based on recent history, we doubt that a new FCC Chairman will be nominated and confirmed until late spring or early summer. In the meantime, the FCC’s professional staff will keep the agency running.