Must-Vote Rules Could Slow Down Rosenworcel
FCC acting Chairwoman Jessica Rosenworcel can force votes on items, a step that needs the vote of at least one Republican commissioner under must-vote rules. With a full commission, the chair needs the votes of only the other members of the majority party to trigger the rules. Rosenworcel hasn't focused on changing the rules. Some experts said in interviews an change is overdue, although many think the rules won't significantly impede her.
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Under internal procedures, must-vote is triggered when an item has sat for 21 days and has a quorum. The initial deadline for other commissioners to vote is 12 calendar days after the Friday after must-vote conditions are met. The deadline can be extended for another week at the request of a nonvoting commissioner.
FCC officials said Rosenworcel has focused on working with her colleagues Geoffrey Starks, Brendan Carr and Nathan Simington, looking for consensus where possible. An FCC spokesperson and the two Republicans didn’t comment Tuesday.
In 2018, then-Commissioner Mike O’Rielly sought a tighter time frame to accelerate voting. “The must-vote structure could be adjusted, including appropriate trade-offs, to help both those in the majority and minority on an issue,” O’Rielly said now. “I’m not too optimistic since inertia seems to govern most FCC processes.” Many process rules could be improved, said Common Cause’s Michael Copps, an ex-FCC member. “Rosenworcel has shown that the process can also be changed by simply reaching out to her colleagues,” he said: “That has not, unfortunately, usually been the FCC norm.”
Six items are on the FCC circulation list. The oldest is a Further NPRM on review of broadcast and cable equal employment opportunity rules, circulated Feb. 23. The FCC took the 4.9 GHz stay off the list last week. Simington voted yes; Carr dissented (see 2105270071).
“It’s time to fix the complex must-vote rules if they’re routinely delaying FCC votes on small and noncontroversial items for a month or more,” said Brent Skorup of George Mason University’s Mercatus Center. But with most commissioner actions taken by consensus and 5-0 votes when there's a full quorum, "it's a bit of a stretch to think that the FCC won’t be able to work unless there are 5," emailed Michigan State law professor Adam Candeub. "What the evidence shows is that the commissioners typically work together and compromise,” said Candeub, who helped run NTIA under the Trump administration.
“When in doubt, Mike O’Rielly is right,” emailed Robert Folliard, Gray Television senior vice president-government relations and distribution. “If 21 days is enough time for meeting items, which are typically far more complex and controversial, then it is plenty of time for the more routine items that go on circulation outside of the meeting context.” Allowing items to linger for weeks, especially noncontroversial actions, “is just bad government,” Folliard said.
Matthew Berry, ex-chief of staff to then-Chairman Ajit Pai, said must-vote rules are "a useful tool" for getting minor items out the door without obstruction by the minority commissioners and without having to put them on a meeting agenda. He said if there's no majority support for a decision, there's no reason to have a must-vote trigger. The agency hasn't had a problem with numerous items sitting on circulation for long stretches, he said. Rosenworcel and Carr "seem to be working well together" and “there's not been Republican obstruction,” he said: "I see no evidence whatsoever the Republicans are not being cooperative.”
This 2-2 split is an “anomaly” and “changing anything to try and get around the current impasse might have downstream unintended consequences,” said TechFreedom General Counsel Jim Dunstan. “Truncating the timing of the vote doesn't solve the current problem, which is that without a majority, the FCC can't operate, except on consensus,” he said: “Doing anything that creates more splits, and takes away from consensus building, the worse off we are.”
“This is why the president needs to nominate a fifth commissioner,” said Best Best's Cheryl Leanza, of the threat of a gridlocked FCC. Leanza is also policy adviser to the United Church of Christ's media justice ministry. By leaving the agency 2-2 so long, she said, President Joe Biden has “wasted almost 10%” of his administration’s period of having control of the agency.