A New White House, a New FCC
The transition to the Biden Administration will impact all agencies and departments in the Federal Government. This entry provides insights into the ongoing work at the Federal Communications Commission (FCC) during its transition to a new, yet unnamed, Democratic Chair and a majority of Democratic Commissioners.
Most headline actions by the FCC are taken at its public monthly agenda meetings with discussions by the FCC Commissioners about the items being considered. Other items are decided by the FCC on circulation, where the Commissioners individually vote on items but do not discuss them at a public meeting. Importantly, many more FCC actions are decided at the Bureau and Office levels under precedent or general policy guidance and without consideration by the FCC Commissioners.
A common element in all of the FCC decision-making is the role of the FCC staff in reviewing requests for FCC action, analyzing public comments in docketed proceedings, and at a minimum drafting formal decisions, whether or not they ultimately require a vote by the FCC Commissioners. As we approach a post-election transition at the FCC, it is timely to consider how a transition affects the FCC staff and the large volume of work for which it is responsible.
The President can, at any time, designate any sitting FCC Commissioner as FCC Chair. It is expected that once President-Elect Biden is inaugurated, he will designate a sitting Democratic Commissioner as acting or possibly long-term Chair. The two current Democratic Commissioners are Jessica Rosenworcel and Geoffrey Starks. There are likely other Democrats interested in the FCC Chair position, but they would have to be nominated by the President and confirmed by the Senate for a vacant commissionership to be appointed FCC Chair.
What happens during this interim period before the Inauguration and immediately afterward as the party affiliation of the Chair and the majority party of FCC Commissioners changes?
During past transition periods, the FCC has avoided issues likely to be voted along party lines, which has meant sticking to matters on which there are not significant partisan differences. This was demonstrated by the FCC’s November 2020 meeting, at which only one item had any dissent, which was by a member of the Republican majority. Previous months’ agendas often had numerous items decided by 3-2 votes along party lines.
By Inauguration Day, past FCC Chairs from the party of the outgoing President have often resigned their positions and left the FCC even though they were not legally obligated to do so. Ajit Pai, the current FCC Chair, recently announced that he will resign on January 20, 2021. In addition, Republican Commissioner Michael O’Rielly’s term expires with the end of the present Congress, so he must leave the FCC by early January 2021. Whether the Senate, in the little time remaining in this Congress, confirms President Trump’s nomination of Republican Nathan Simington for the opening created by Commissioner O’Reilly’s upcoming departure will determine whether there is a 2-2 tie among FCC Commissioners or a 2-1 Democratic majority on Inauguration Day. President Biden will ultimately nominate additional Commissioners to fill any vacancies, providing Democrats a 3-2 majority for the balance of his Presidency.
Once a new Democratic Chair is in place, that person will review the senior leadership of the FCC and decide on changes. An interim-only FCC Chair is more likely tolimit management changes to key leadership positions occupied currently by political Senior Executive Service (SES) appointees. If one of the sitting Democratic Commissioners is named Chair, other than on an interim basis, broader changes in the senior FCC leadership may be announced quickly. For example, Chairman Pai announced 15 senior FCC leadership appointments shortly after his appointment as FCC Chair in 2017.
The U.S. Office of Personnel Management accords substantial deference to government employees who are in the SES, stating that “Members of the SES serve in key positions just below the top Presidential appointees, and are the major link between these appointees and the rest of the Federal workforce.” Most SES-level employees must be “career” civil service, with strict limits on the number of “political” appointees. SES positions are coveted for their combination of relatively high pay levels coupled with civil service employment rights and protections. Career SES staff cannot be involuntarily reassigned to different responsibilities within 120 days of a new agency head taking office. As a practical matter though, many career SES will agree to proposed reassignments by the new FCC Chair.
Generally speaking, government employees are focused on continuity of services as changes among Bureau and Office Chiefs and subordinate management positions are in progress. During transition periods, the volume of FCC actions levels off until new leadership, policies, and priorities are clearly understood by the FCC staff. With a new Chair and Democratic majority in place, it will take some time for them to establish the direction and specifics on the wide range of pending FCC matters and to communicate their new priorities to the FCC staff.
To read more about the possible changes to the FCC resulting from the election, click here.