After the departure of one Republican and one Democratic commissioner on Friday, the Federal Communications Commission is down to two members, falling below the quorum threshold for what’s typically a five-person panel.
Commissioners Nathan Simington and Geoffrey Starks stepped down at the end of the week. That leaves Republican Chair Brendan Carr and Democratic Commissioner Anna Gomez as the two remaining voting members. President Donald Trump has nominated Republican Senate staffer Olivia Trusty to the commission, but the chamber has yet to vote on her confirmation, which left the agency deadlocked even before these departures. The FCC is in charge of everything from broadband regulations and subsidies funds, to telecommunications mergers enforcement, to spectrum auctions. Without a three-member quorum, some of that work, and the agenda of Trump-aligned Carr, is left in limbo.
Starks and Simington both announced the date of their departures earlier this week, though Starks indicated in March that he planned to step down; neither offered specific reasons for their departure. Carr indicated he intends to keep up the pace, writing in a blog post that “the show must go on.”
The FCC isn’t the only agency short its typical number of commissioners — earlier this year Trump ordered the firing (in violation of Supreme Court precedent) of the two Democratic commissioners on the Federal Trade Commission.
There’s a lot that Carr can at least try to do while awaiting a quorum, even without another Republican commissioner to vote on more partisan proposals. Carr has already used so-called delegated authority to let the FCC’s various bureaus carry out the agency’s work without a vote from the full commission. Verizon’s $20 billion deal to buy Frontier was recently approved by the FCC’s Wireline Competition Bureau, for example, which Gomez criticized as a “backroom” deal that should have been brought to a full commission vote.
Gomez and Carr can also operate as a two-member board of the commissioners under Rule 0.212, allowing them to do most things they normally would besides issue final rules or actions, according to Public Knowledge senior vice president Harold Feld. That could hold up any final action to roll back a host of regulations through Carr’s “Delete, Delete, Delete” initiative, spurred by a Trump executive order, but allow for new notices of proposed rulemakings or other first steps — so long as they can both agree on them.
Even if the commission can likely accomplish most of its day-to-day work, Feld warns that operating without a quorum under confusing legal precedents could be risky. “It puts a cloud over everything,” he says. It could also cause problems if the Supreme Court issues an awaited ruling on the future of the Universal Service Fund, which helps subsidize communications services for rural and low-income households, and requires changes that would need to be approved by a commission vote.
Though a Senate vote on Trusty’s confirmation could be scheduled in the coming month or two and officially end the limbo, Feld worries about what could happen if it stretches into hurricane season. After past natural disasters, he says, the FCC has broken red tape to get money for telecommunications networks repairs out faster. “That potentially might be a problem if the FCC doesn’t have a quorum,” he says. “How much are we handicapped in the event of a weather-related crisis? Will we just decide that the bureaus can act on delegated authority? … [Or] is the commission going to be paralyzed to act in the face of a crisis?”