A United States senator wants to know whether the FCC could legally function if its members were all from one party.
Sen. Ron Wyden, D-Ore., has asked Commissioner Anna Gomez, the only Democrat on the commission, for her legal opinion on whether the Communications Act permits the FCC to do its work with a 3–0 panel of Republicans.
Some observers believe President Trump might fire Gomez after expected Senate confirmation of nominee Danielle Thumann Severs, a Republican. Thumann Severs would give Republicans a 3–1 majority on a body that in normal times has five members.
Gomez is a telecommunications attorney as well as a frequent and vocal critic of the Trump administration. She has over 30 years in domestic and international communications law and policy. Her FCC term expired in June but she continues to serve under a holdover provision that extends to the end of 2027.
In a letter to Gomez, Wyden cited increasing speculation that Trump intends to fire her after securing a third seated Republican.
Gomez has publicly acknowledged multiple times that Trump might fire her, especially after the Supreme Court’s ruling this summer holding that a president can remove Federal Trade Commission commissioners at will.
But Wyden wrote in the letter that Congress established the FCC in such a way that no party can grab total control over the nation’s communications infrastructure.
He said that some “commentators have tried to suggest that this mathematical formula is just a complicated way of creating a limit of three members from one political party.”
He continued: “But Congress has, in other contexts, shown that it knows exactly how to write a numeric upper limit. In establishing other bodies, such as the Securities and Exchange Commission and the International Trade Commission, Congress provided that not more than three commissioners may belong to the same party.”
Wyden noted amendments to the act that require the commission to have political balance at any operational size: If there are three commissioners on the FCC, only two can be from the same political party.
Before 1982, Wyden wrote, the Communications Act declared that “not more than four” commissioners of a then-seven seat FCC could be from one party.
Wyden believes federal law prohibits a one-party commission. He feels that any action taken by a partisan FCC could be overturned in court. He warned of staggering consequences regardless.
“The FCC’s daily docket consists of thousands of routine but essential administrative actions that are taken through delegated authority,” he wrote.
“The U.S. communications sector represents hundreds of billions of dollars in economic valuation, and relies on the legal validity of these FCC actions. Under an all-Republican commission, every single license renewal, equipment certification, spectrum transfer or other delegated action would be legally defective, casting a cloud of crippling legal uncertainty over the entire communications industry,” Wyden wrote.
Thumann Severs was expected to appear before the Senate Commerce Committee this month but her hearing was delayed since she is on maternity leave, according to several reports.
Communications Daily reported that communications sector lobbyists. expect the committee will likely delay Thumann Severs confirmation until November.
Meanwhile, civil rights groups recently sent a letter to the top Republican and Democrat of the U.S. Senate Committee on Commerce, Science and Transportation urging them to delay confirmation hearings for Thumann Severs.
TV Tech reports that the groups asked Sens. Ted Cruz (R-Texas) and Maria Cantwell (D-Wash.) to delay until Gomez is renominated alongside Thumann Severs so that both nominees move through the confirmation process together as a package, the traditional way Congress has handled FCC nominees.
