President Biden has yet to nominate anyone to fill a vacant seat at the Federal Communications Commission. What's more, the term of current acting Chairwoman Jessica Rosenworcel is set to expire when Congress adjourns at the end of the year.
It adds up to a possible Republican majority on the commission under a Democratic administration, which could stymie the party's efforts on a number of policies, including net neutrality standards.
Currently, the commission is deadlocked with two Democratic commissioners, Rosenworcel and Geoffrey Starks, and two Republicans, Brendan Carr and Nathan Simington.
Biden has the opportunity to nominate two people to the five-member commission: one for the vacant seat and one either to replace Rosenworcel or renew her term. But the White House hasn't put forward any names.
"It's executive branch malpractice coming from an administration that has thus far been distinguished by extraordinary competence," says Andrew Jay Schwartzman, senior counselor at the Benton Institute for Broadband and Society, which advocates for broadband access.
"Unless the acting chair can get one or two Republican votes, the FCC can't agree to anything," he says. "So it has been doing noncontroversial things and really putting off all but the essential, keeping-the-trains-running-on-time kinds of responsibilities."
Blair Levin, a former FCC chief of staff, is also frustrated about the lack of nominees, if a bit more sympathetic to the administration.
"For people like me who care deeply about these issues and are involved in these issues ... we are outraged that the administration has not done this," Levin says. "But to be fair to the administration, they have a few other things on their plate that frankly are more important in terms of the country."
Democrats' priorities include net neutrality standards and broadband expansion
For Democrats, perhaps the top priority for the FCC is returning to the net neutrality standards set during the Obama administration and reversed under the Trump-era FCC. Democrats want to prohibit internet providers from slowing speeds to consumers or blocking content.
In July, President Biden signed an executive order, which among other things called on the FCC to restore net neutrality, prevent internet service providers from making deals with landlords that prevent tenants' choices and to limit excessive early termination fees for internet service. All are steps seen as unlikely to be approved by a Republican-majority commission.
The agency also has the responsibility to set rules for everything from 5G technology to how much prisoners can be charged for phone calls. And Levin points to the broadband expansion included in the infrastructure bill.
"One of the most important things," he says, "is for the FCC to come up with a plan to reform universal service. How do we make sure that there are networks deployed everywhere and everybody gets on them? And how do we serve critical community institutions like schools, and health care facilities and libraries?"
A split FCC could certainly act on those issues, Levin says, but Democrats would prefer to see the discussion start with their ideas and negotiate from there.
More than two dozen senators have sent a letter to the White House urging Biden to nominate Rosenworcel, the acting chairwoman, to another term, arguing she would face few obstacles to confirmation since the Senate has approved her earlier.
The FCC nominations aren't the only vacancies the president has yet to fill. No one has been nominated to lead the Food and Drug Administration, and the president recently withdrew his choice to head the Bureau of Alcohol, Tobacco, Firearms and Explosives in the face of Senate opposition.
But Democrats would like to see him move on the FCC nominees, lest Republicans gain the majority on the influential panel.
The White House did not respond to a request for comment on this story.
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