President Joe Biden is ready to fill some key vacancies at the U.S. telecommunications agency.

President Joe Biden nominated Jessica Rosenworcel for a third term at the FCC. Source: FCC

The White House on Oct. 26 nominated current acting FCC Chairwoman Jessica Rosenworcel for permanent chair of the agency. He also nominated Gigi Sohn to sit as the third Democratic commissioner on the commission, a seat that has remained vacant for the past 10 months, creating a 2-2 partisan split at the five-seat commission.

Outside the FCC, Biden selected Alan Davidson of the Mozilla Foundation, a open market internet advocacy organization stemming from Mozilla Corp., as director of the National Telecommunications and Information Administration. NTIA is the executive branch agency under the Commerce Department that is principally responsible for advising the president on telecommunications and information policy issues.

The trio of telecom picks are a "dream team" for the media and tech policy world, said Matt Wood, vice president of policy and general counsel at media democracy group Free Press. "These are all people who are more than qualified," Wood said in an interview.

Song of Sohn

Sohn specifically could be a "problematic" pick, according to Rob Atkinson, president of free-market Information Technology and Innovation Foundation.

"She has a bias against the major communications carriers and supports strong net neutrality rules, municipal broadband and other kinds of policies," Atkinson said, adding that her pick would result in limiting innovation in the broadband space.

Sohn, a net neutrality advocate, sits as a senior fellow at the Benton Institute for Broadband and Society and was a counselor to former FCC Chairman Tom Wheeler. She also co-founded communications advocacy agency Public Knowledge.

The nominations are not a surprise in the telecom world, wrote Blair Levin of New Street Research in an Oct. 26 note, though Sohn may push the commission to be more assertive on issues such as digital discrimination and paid prioritization.

Confirmation process

Senate confirmations for the picks are still needed. Free Press's Wood said timing on the confirmations are in flux, though he would not be surprised if Rosenworcel had a solo, fast-tracked hearing, given that her current term expired June 30, 2020. Since that time, she has been serving under a grace period known as a "holdover" that ends either when a replacement is confirmed or at the end of the congressional session the following year. Unless she is reconfirmed, she will have to leave the commission in January 2022.

Atkinson agreed, saying there is a sense of urgency from the Senate to see Rosenworcel's confirmation through.

Levin said the confirmation process for the FCC picks is likely to be "untidy," but ultimately he expects both to get through.

"While we don't think it likely, it is possible, given the small margin, that a single Democratic senator could upset the plan by deciding to delay or oppose Sohn as a commissioner, thereby further delaying the time at which there would be a Democratic majority," Levin said. "Ultimately, however, the most likely scenario is that by sometime in 1Q22, there will be a Democratic majority."

Pricing regulations

A key question for both Sohn and Rosenworcel is whether either would support regulating broadband prices, according to Levin.

Biden has encouraged the FCC to reinstate net neutrality protections that prohibit broadband service providers from blocking or throttling legal internet traffic or prioritizing certain traffic for payment. To reinstate those protections, the FCC may seek to once again reclassify broadband as a Title II telecommunications service, giving the agency more regulatory authority over broadband service providers such as Comcast Corp., Verizon Communications Inc., AT&T Inc. and Charter Communications Inc.

The Title II classification is controversial and unpopular among many in the broadband industry because it not only gives the FCC the regulatory authority to impose net neutrality rules, but it also technically enables the agency to regulate broadband rates. Under former President Barack Obama, the FCC — including Rosenworcel — said the agency would forbear from controlling prices.

"We expect the issue to be brought up during the confirmation hearings and believe ... that either nominee saying that they think price regulation should be on the table could lead to significant problems in obtaining confirmation," Levin said.

Beyond net neutrality, the communications agency has a mounting to-do list ahead of it, with items stemming both from White House executive orders and a long-term broadband subsidy making its way through the House as part of Biden's sweeping infrastructure package.

Diverse slate

The White House noted that if confirmed, Sohn would be the first openly LGBTQ+ commissioner in the history of the FCC.

Benton Senior Counselor Andrew Schwartzman, who has worked with Sohn at Benton, called Sohn a "magnificent choice."

"The diversity of this slate will be central to its work; in particular, Gigi will be able to reflect the often overlooked needs of the LGBTQ community, something that will benefit all of us," Schwartzman said in an email to Market Intelligence.