After almost a year of serving in an acting capacity, Jessica Rosenworcel is finally poised to be the first ever woman chairperson in the 86-year-history of the Federal Communications Commissioner.
The Senate voted 68-31 on Tuesday to confirm Rosenworcel for a new five-year term.
Rosenworcel was named acting Chair by President Biden shortly after he took office; he removed the “acting” from her title back in October, taking much longer than previous new presidents. While the president gets to pick the commissioners and designate one of them to be the chair, much like all his cabinet picks, it’s the Senate that confirms them for their five-year terms.
Rosenworcel’s confirmation keeps the commission in current deadlock of 2-2 and staves off an embarrassing scenario for Biden: Rosenworcel’s term actually ended in mid-2020, but FCC rules allow for commissioners to stay past their term expiration for a short period. If she wasn’t confirmed for a new term, she would have had to leave in January, which would have given the Republicans a 2-1 advantage.
In that scenario, Jeffrey Starks, the other Democrat on the commission, would be named acting chair. The role of the chairman is to set the agenda for the commission, but with a 2-1 deficit, he would have been limited to items that already had Republican support.
Biden’s other FCC nominee Gigi Sohn faces a tough confirmation process that figures to go into next month at least. If she can get through the Senate, the Democrats would have the 3-2 majority that the party that sits in the White House typically enjoys. For now, the FCC remains deadlocked.
The FCC is responsible for setting and enforcing rules that govern everything from internet access, media ownership in local markets, ensuring fair competition and enforcing federal decency standards on open airwaves (They’re the ones you complain to when Cardi B and Megan Thee Stallion are performing “WAP” during the Grammys.)
Here are some of the key issues Rosenworcel will face during her tenure:
Restore Net Neutrality Rules
This is the big one for Biden and the Democrats at large. One of the key accomplishments during Barack Obama’s term was the FCC’s establishment of so-called “Net Neutrality” rules.
The idea behind net neutrality is that internet service providers like Comcast and Spectrum should treat all web traffic flowing their systems equally and not “throttle” traffic by making it go slower. For example, there is nothing that blocks Comcast from making rival streaming services like Netflix load slower than Comcast-owned Peacock on its servers. Those against net neutrality rules decry it as example of government overreach and argue that the internet should remain free of government regulation.
In 2015, the FCC adopted the Open Internet Order, which essentially reclassified internet service providers as public utilities and therefor subject to government regulation. Once Donald Trump took office in 2017 and was able to appoint the Republican Ajit Pai as chairman and gain a 3-2 advantage, the FCC repealed the order amongst heavy opposition.
Rosenworcel was a staunch supporter of Net Neutrality and voted against repealing the rules in 2017. She will likely have to wait and see if Gigi Sohn can get through the confirmation process, which is anything but guaranteed. A 2-2 deadlock is likely to keep Net Neutrality off the table, since neither the two Republican commissioners Nathan Simington and Brenden Carr support restoring those rules.
Rosenworcel will need that 3-2 advantage.
Bridging the “Homework Gap”
Outside of Net Neutrality, the FCC’s big undertaking will be ensuring those who live in underserved rural and urban areas are connected to the internet. Bridging that digital divide between wealthy and poor communities has been a personal crusade for Rosenworcel.
As the pandemic laid bare, there still remain deep inequalities in terms of internet access, particularly for poorer and more rural neighborhoods. That contributed to what Rosenworcel has called the “Homework Gap,” which sees children in those neighborhoods fall behind their more wealthy peers in education, particularly over the past year of remote learning.
A Pew study last year estimated that as many as one-third of Americans don’t have access to broadband. During the pandemic, Rosenworcel has advocated for reinterpreting E-Rate rules, which are funds that help schools and libraries connect to the internet, in order to allow students to access those funds.
“The more that I talked to teachers, the more I heard the same stories over and over again: Kids sitting in the school parking lot with school laptops they had borrowed late into the evening, trying to peck away at homework because that was the only place they could actually get online. Or kids sitting in fast food restaurants and doing their homework with a side of fries,” she told The Technology Review in an interview last year.
Local Station Consolidation
Earlier this year, the Supreme Court sided with the FCC and National Association of Broadcasters in its decades-long attempts to make local media ownership rules less restrictive.
Local media, particularly TV stations, have been forced to abide by strict rules that stipulate, among many things, that no one company can own more than one of the top four stations in any single market. At the same time, there is a ban on in-market consolidation of stations if the result would lead to fewer than eight independently owned stations (called the “Eight Voices Rule”).
The FCC was successful in vacating the “Eight Voices Rule,” as well as remove a ban on owning a local TV station and newspaper in the same market.
Local media is caught between a rock and a hard place. There is a very real fear that loosening the ownership rules could lead to a massive wave of consolidation, led by already large station groups like Sinclair, which has been accused of having an openly partisan bias toward conservatives. At the same time, broadcasters, particularly stations in small markets that aren’t owned by one of the major station groups, are wary of going under because they’ve been elbowed out of the advertising market by larger, nationwide players.
The concern among those wary of further media consolidation is that successfully vacating the “Eight Voices Rule” could give the FCC precedent to eventually throw out the Top 4 rule. Proponents of relaxing ownership rules argue they are badly outdated.
A Democrat-led commission will be much more likely to reign in any future consolidation much more than a Republican majority. Additionally, Biden’s FTC chair has signaled she will take a much harder stance on anticompetitive and antitrust behavior.
Section 230
Section 230, which gives social media companies all kinds of legal protections, has been put on the back burner since Biden’s victory over Trump.
Last year, Trump ordered the FCC to review Section 230, which was at best legally dubious.
Section 230, which was enacted in 1996, is also the legal shield that safeguards tech companies from being sued for what its users post. If Section 230 were to be curtailed or changed, it could become a major liability for Twitter, Facebook and Google-owned YouTube.
But it is legally questionable whether the FCC can really do anything to change Section 230.
“They’ve asked an agency over which the president has control over, the Commerce Department, to petition the FCC, an independent agency over which he has no control,” Olivier Sylvain, a law professor at Fordham University, told TheWrap last year. “And the only way we evaluate what the FCC can do is by looking at the statute, which is written by Congress, and Section 230 does not set out any authority for the FCC to interpret Section 230.”
But even if it’s not in the same that Trump wanted, Section 230 and the FCC’s role in it will likely be a major topic as social media companies face intensifying scrutiny from Congress.