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The Senate just voted 49-47 to end cloture on #Simington's FCC nomination. Final vote's at 4pm
Yesterday, I explained how @FCC could act on #Section230
Here's what breaking the longstanding practice of voting on FCC Cmrs in pairs could mean for the agency and #TitleII debate…
Yesterday, I explained how @FCC could act on #Section230
Here's what breaking the longstanding practice of voting on FCC Cmrs in pairs could mean for the agency and #TitleII debate…
First, it's critical to understand that, even without Simington, Republicans already have Democrats over a barrel next year—if they hold the Senate
That's because @JRosenworcel will leave the FCC if she isn't reconfirmed by December
AND Dems also need a third Cmr confirmed
That's because @JRosenworcel will leave the FCC if she isn't reconfirmed by December
AND Dems also need a third Cmr confirmed
Without Simington, Ds take control 2-1 in January & have 11 meetings to enact their agenda including reapplying #TitleII to broadband
But in January 2022, FCC would deadlock 1-1
Rs could insist on pairing Rosenworcel with a 2nd R Cmr, and still have leverage via the 3d Dem Cmr
But in January 2022, FCC would deadlock 1-1
Rs could insist on pairing Rosenworcel with a 2nd R Cmr, and still have leverage via the 3d Dem Cmr
Democrats have made clear that they will respect the pairing process if Simington isn't confirmed, defer to McConnell in picking a Republican nominee for that seat, and move that nominee with a Dem quickly nect year
In short, Rs could still force Biden to fill @mikeofcc's seat quickly with a nominee of their own choosing
And would still be able to use confirmation of a 3rd Dem Cmr to, say, force Dems to negotiate over finally resolving the long, pointless #TitleII debate
And would still be able to use confirmation of a 3rd Dem Cmr to, say, force Dems to negotiate over finally resolving the long, pointless #TitleII debate
But if Simington IS confirmed, FCC will deadlock 2-2 throughout 2021
Rs will have no incentive to confirm Dem Cmrs and a strong incentive to maintain deadlock to block FCC from issuing a #TitleII order
And Rs will gain a 2-1 majority (w @GeoffreyStarks as Chair) in January 2022
Rs will have no incentive to confirm Dem Cmrs and a strong incentive to maintain deadlock to block FCC from issuing a #TitleII order
And Rs will gain a 2-1 majority (w @GeoffreyStarks as Chair) in January 2022
If Republicans hold the Senate in 2022, they could maintain a 2-1 majority on the FCC through 2024, preventing the the Biden FCC from doing *anything* controversial
That may sound great to Republicans, but ending the practice of moving FCC Commissioners in pairs means blowing up how Commissioners are put on the independent agencies, and the 1994 deal by which the President has deferred to the Senate opposition leader to fill minority seats
The Communications Act doesn't require the President to put members of the opposition party onto the FCC. It merely says not more than 3/5 seats may be held by members of the President's party.
It's up to the president to make nominations, and the Senate to confirm/reject them
It's up to the president to make nominations, and the Senate to confirm/reject them
In 1994, after Republicans swept Congress, Senate Majority Leader Dole got President Clinton to agree to let him fill minority seats on all the independent agencies
That deal has survived because nominees move in pairs, one from each party
That deal has survived because nominees move in pairs, one from each party
This isn't the first time an FCC nominee has been confirmed (or reconfirmed) without paired FCC Commissioner from the other party, but it IS the first time that's ever happened when would deadlock the Commission, or allow the opposition to gain a majority https://www.fcc.gov/commissioners-1934-present
Rs may feel safe because Carr can't be replaced til June 2023 and could through Biden's presidency (and Simington a year beyond that)
But what do they expect to happen if Ds take the Senate in 2022?
Ds will have only one way to retaliate: replacing Carr with their own pick
But what do they expect to happen if Ds take the Senate in 2022?
Ds will have only one way to retaliate: replacing Carr with their own pick
Dems would have every legal right to pick whoever they want for Carr's seat, so long as the new Cmr isn't a Democrat (or simply changes their registration)
They could do the same to Simington on 7/1/2024
Republicans could get shut out of the FCC completely—a serious own goal
They could do the same to Simington on 7/1/2024
Republicans could get shut out of the FCC completely—a serious own goal
If Dems don't take the Senate in 2022, or if Biden, the institutionalist, doesn't have the stomach for this, we'll be in the same situation in January 2025: Carr will have lapsed and Dems, if they keep the WH and take the Senate, could replace both with their own allies
In short, we may have just seen the first strike that starts a slow-burn all-out war over the FCC
How likely is this scenario?
Of course, if Dems win both GA seats, this is all for naught: Dems will get a 3-2 majority as soon as a 3rd Cmr can be confirmed
How likely is this scenario?
Of course, if Dems win both GA seats, this is all for naught: Dems will get a 3-2 majority as soon as a 3rd Cmr can be confirmed
But if Rs hold the Senate...
McConnell might trade reconfirming Rosenworcel for a Cmr on some other agency or a judge. That would merely preserve a 2-2 deadlock through 2024, so it doesn't really cost Rs anything
McConnell might trade reconfirming Rosenworcel for a Cmr on some other agency or a judge. That would merely preserve a 2-2 deadlock through 2024, so it doesn't really cost Rs anything
There's only one thing that might convince McConnell to give Dems an FCC majority: a legislative deal that resolves the #netneutrality 
debate by codifying 2015 rules (which have never been controversial anyway) in exchange for protecting Internet services from #Title regulation
debate by codifying 2015 rules (which have never been controversial anyway) in exchange for protecting Internet services from #Title regulation
I want to see that deal done as much as anyone. I've been calling for legislation since 2014 https://web.archive.org/web/20150315081113/https://www.nationaljournal.com/tech/obama-eager-to-hammer-republicans-on-net-neutrality-20141112/
And I invested a huge amount of time, with other stakeholders from across the spectrum, in @InternetSociety's 2019 framework https://www.internetsociety.org/resources/doc/2019/net-neutrality-legislation-a-framework-for-consensus/
And I invested a huge amount of time, with other stakeholders from across the spectrum, in @InternetSociety's 2019 framework https://www.internetsociety.org/resources/doc/2019/net-neutrality-legislation-a-framework-for-consensus/
If McConnell's strategy really is to deadlock the FCC (/achieve an R majority in January 2022) until that deal gets done, let's get it out of the way quickly
Congress could have enacted that legislation five years ago, but there's been a lot of grandstanding on both sides
Congress could have enacted that legislation five years ago, but there's been a lot of grandstanding on both sides
And too few members in the center genuinely committed to getting this done
@SenatorWicker, @SenJohnThune and @RepFredUpton tried for years
@SenatorSinema (D-AZ ) cared enough to co-anchor ISOC's multistakeholder process along with Mia Love (R-UT). @brianschatz seems to get it
@SenatorWicker, @SenJohnThune and @RepFredUpton tried for years
@SenatorSinema (D-AZ ) cared enough to co-anchor ISOC's multistakeholder process along with Mia Love (R-UT). @brianschatz seems to get it
Wicker & Sinema even issued a joint statement last year calling for "straightforward guidelines that will not change based on who occupies the White House"
Their bipartisan working group should move quickly to produce a bipartisan bill https://www.commerce.senate.gov/2019/3/wicker-and-sinema-announce-net-neutrality-working-group
Their bipartisan working group should move quickly to produce a bipartisan bill https://www.commerce.senate.gov/2019/3/wicker-and-sinema-announce-net-neutrality-working-group
The ISOC framework really leaves only two issues to work out besides codifying the 2015 rules:
1) Decoupling universal service, public safety and infrastructure deployment from #TitleII
1) Decoupling universal service, public safety and infrastructure deployment from #TitleII
2) Supplementing the bright line rules with some flexible standard (for unforeseen Open Internet concerns) that doesn't just replicate the blank check of vast discretion conferred by #TitleII
Relatedly, Congress will have to decide whether to give the FCC additional rulemaking power. If so, the ISOC framework drew upon a 2005 effort (the Digital Age Communications Act Project) involving leading telecom experts across the political spectrum
In short, a legislative deal on #TitleII is well within reach
Maybe, at last, the incentives will be aligned properly to get it done: industry is eager to remove the thread of #TitleII regulation (including, despite claims of forbearance, price regulation), so Rs should want it
Maybe, at last, the incentives will be aligned properly to get it done: industry is eager to remove the thread of #TitleII regulation (including, despite claims of forbearance, price regulation), so Rs should want it
Democrats will be eager to get their two Commissioners confirmed
But Rs may calculate that they're better off waiting until there's a decision in the litigation over California's attempt to recreate the FCC's 2015 Order by state law
That could take years...
But Rs may calculate that they're better off waiting until there's a decision in the litigation over California's attempt to recreate the FCC's 2015 Order by state law
That could take years...
DOJ sued to block California's #netneutrality law in October 2018, but the suit was stayed until recently
The Biden DOJ will drop out but the ISPs will continue fighting it
We might get a district court decision mid next year, but the 9th circuit likely won't rule til 2022
law in October 2018, but the suit was stayed until recentlyThe Biden DOJ will drop out but the ISPs will continue fighting it
We might get a district court decision mid next year, but the 9th circuit likely won't rule til 2022
So if, like me, you're hoping Congress will move quickly to end this pointless fight over #TitleII and then allow the FCC to get back to its normal business, I wouldn't expect any movement before the end of next year, when @JRosenworcel's imminent departure makes a deal urgent
More fundamentally, I fear that, far from facilitating a legislative deal, blowing up the pairing norm for nominees may actually make it harder for Democrats to agree to a legislative deal that the Digital Left will denounce as a sell-out (no matter what it says)
So while deadlocking the FCC *could* help get a legislative deal done, it could also simply drag things out. And the closer we get to the 2022 midterms, the more Democrats may calculate that they're better off just trying to take the Senate, fill their 2 seats and do no deal
Ultimately, the problem for Republicans is that, the longer they drag out the deadlock at the FCC, the more likely they make it that Democrats will retaliate by simply kicking them off the FCC altogether
Simington confirmed
I'm hearing Adam Candeub will be his chief of staff
I'm hearing Adam Candeub will be his chief of staff
