Could an all-Republican FCC legally do business? Sen. Ron Wyden (D-OR) doesn’t think so, and he has asked Commissioner Anna Gomez, the agency’s lone Democrat, for her opinion as speculation grows that she could be removed if a third GOP commissioner is seated.
In a September 24 letter to Gomez, Wyden asked whether the Communications Act allows the FCC to function with three Republican commissioners and no Democrats. He wrote that he reads the statute to prohibit that arrangement, which would leave any actions taken by such a panel without legal effect.
In August, President Trump nominated Danielle Thumann Severs, senior counsel to Chairman Brendan Carr, to the FCC, but the Senate Commerce Committee has yet to consider her nomination. If confirmed, she would join Carr and Commissioner Olivia Trusty as a third Republican, with Gomez the only Democrat. Wyden noted speculation that the President could then fire Gomez and run the agency as a 3-0 panel, which would still meet the Communications Act’s three-member quorum, and said he hopes that speculation is off the mark.
The Supreme Court ruled 6-3 in June in Trump v. Slaughter that the President can remove independent agency commissioners without cause. Gomez’s term expired June 30, and she remains at the FCC in holdover status.
Wyden’s argument centers on amendments to the Communications Act, which replaced a numeric limit on same-party commissioners with a formula capping partisan membership at the smallest number that constitutes a majority of the commission’s full membership. He contends “full membership” means the number of sitting commissioners, so a three-member FCC could include no more than two from one party.
Wyden wrote, “If the administration were to decide to operate a 3-0 Republican FCC, despite this clear statutory design, the consequences would be staggering. The FCC’s daily docket consists of thousands of routine but essential administrative actions that are taken through delegated authority. The US communications sector represents hundreds of billions of dollars in economic valuation, and relies on the legal validity of these FCC actions. In 2010, the Supreme Court held that the National Labor Relations Board could not creatively delegate its way around a statutory quorum requirement. So too for the FCC. 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.”
