The departures of Nathan Simington and Geoffrey Starks from the FCC last week have put a magnifying glass on what the Senate will do with the nomination of Olivia Trusty.
The situation also has FCC watchers discussing what the commission can and cannot achieve in the meantime.
With just one commissioner from each party currently seated, there is no quorum to hold votes on a variety of top-level matters. The pressure is on for Republicans to get Trusty confirmed to maintain the party majority and tend to business, experts say; Chairman Carr has yet to lead a commission that has a GOP majority.
In the short term, the impact at the FCC is likely to be limited. The staff can stay busy drafting items to be ready when there is a quorum to vote, and can handle everything else through the bureaus on delegated authority. Enforcement activities can continue as well.
However, big decisions, rulemaking proceedings and approvals of larger mergers and acquisitions likely will be on hold.
The National Association of Broadcasters, in its newsletter “The Wrap” last week, called the situation “unprecedented.” NAB leadership is “exploring possible workarounds should Trusty’s confirmation take longer than expected.”
Scott Flick, partner with Pillsbury Winthrop Shaw Pittman LLP, has been involved with the FCC for nearly 40 years and can’t recall a 1–1 commission before, but says he doubts the Senate has much time right now to focus on Trusty’s confirmation.
“With the Republican effort to pass the ‘Big Beautiful Bill’ before July 4, it may not matter how great the pressure grows; the Senate simply has very little time to spare for confirmation votes these days,” Flick said.
In addition, he said, delay on major items seems inevitable since people underestimate the time it takes for the FCC to return to normal once it has a quorum. “A new commissioner doesn’t just walk into their office on Day One, hang their coat up and start voting items out the door,” Flick said.
It also takes time to assemble a staff, get up to speed on the many items under consideration and to be in a position to contribute to the draft orders passing in front of them.
“Some things are inevitably going to be delayed, with the delay growing worse as more and more items begin to backlog, all competing for the new commissioner’s attention,” Flick said in an email to Radio World.
Gregg Skall, an attorney at Telecommunications Law Professionals and Radio World contributor, said: “If Trump can get the Senate to move on Trusty alone, that gives Carr his three-member commission and a quorum. But if the Democrats can force a paired confirmation, which has been customary under similar circumstances, we may see a stalled FCC and will have to wait for a full commission to see progress on major items.”
Some Washington insiders say the departures of Simington and Starks may have saved Democrat Commissioner Anna Gomez from being fired by President Trump. There has been media speculation that the president could attempt to dismiss the commission’s lone Democrat, as Gomez has openly acknowledged.
The president’s authority to fire independent agency commissioners without cause is highly questionable, says Frank Montero, co-managing partner at Fletcher, Heald & Hildreth.
“Commissioner Gomez, on her First Amendment Tour, has practically been daring President Trump to fire her. But the president is unlikely to do that now as it would strip the agency of a quorum if Trusty is confirmed,” Montero said.
In fact, Montero says Gomez “is almost in the position to threaten the chair with quitting and delaying him a quorum once Trusty is confirmed, although that seems highly unlikely.”
Meanwhile attorney David Oxenford posted on his blog: “So far, it does not appear that the president has made nominations for any open Democratic seats on any federal regulatory agency, so a Democratic FCC nominee may not be a high priority of this administration.”
If a hold is placed on a nominee, Oxenford wrote, then 60 votes (as opposed to a majority) would be needed for approval. “Thus, some Democratic senators would have to vote in favor of her nomination for her to ascend to the open seat – and getting those votes may take time to organize.”
He noted that there are also rumors circulating about potential nominees to fill the other FCC vacancies so that all could be processed at once, but with summer recesses looming, he thought this might drag out.
As for the FCC’s ability to make major decisions with only two members, Oxenford observed: “We don’t have much precedent to guide us as to what is and is not permissible. As in the case of most FCC processes, there is a provision that allows the FCC to take action if necessary to protect the public interest. Perhaps a court ruling requiring action by the FCC in response to the appeal of the 2023 ownership decision would fall in that category, or perhaps the statutory requirement to timely complete a 2022 Quadrennial Review, would be seen as in the public interest. But we are in unprecedented times so we will just have to wait to see what comes next.”
