With their razor-thin Senate majority at risk, Democrats want to notch a few last-minute accomplishments before the November midterms. They could mount a last-minute push to confirm the long-stalled nomination of Gigi Sohn to the Federal Communications Commission (FCC) and try to claim that the current 2-2 partisan split produces gridlock and prevents the agency from doing its job.

Such a claim would be utterly disingenuous; the FCC has operated with fewer than five commissioners for more than 25 percent of its existence. Nevertheless, it has had no trouble fulfilling its mission, and any fair examination of the FCC’s record since President Biden’s inauguration would demonstrate that the agency is perfectly capable of doing its job with four commissioners. 

With control of such an important body on the line, the Senate should not feel pressured to rush through a deeply flawed nominee before January when the FCC is working just fine as it is.

Sohn’s radical views have disqualified her from becoming an FCC commissioner, and Sohn’s nomination has languished since last summer with good reason. In a stunning display of hostility to free speech, Sohn has referred to Fox News as “state-sponsored propaganda” and questioned whether Sinclair Broadcasting should lose its broadcasting license.

Sohn benefitted from copyright violations committed by a nonprofit on whose board she sat and was associated with organizations that harassed former FCC Chair Ajit Pai over net neutrality. Sohn testified that “policymakers have focused disproportionately on broadband deployment in rural areas of the United States,” despite the fact that the most underserved Americans live in rural areas.

Putting the merits (or lack thereof) of Sohn’s nomination aside, the current FCC is delivering on numerous bipartisan priorities that carry congressional sanction, despite the absence of a fifth commissioner.

FCC Chair Jessica Rosenworcel (D) and commissioner Brendan Carr (R) have jointly called for an extension of FCC spectrum auction authority that expires on Sept. 30. Spectrum auctions have raised over $230 billion for the U.S. Treasury, funding several of the government’s priorities while not having to raise taxes on the American people. These auctions allow new and better technologies room to grow in the telecommunications sphere and enable the private sector to meet rapidly-increasing demand for data carriage. Rosenworcel and Carr have made it clear that a fifth commissioner is not immediately necessary to oversee spectrum auctions.

The Infrastructure Investment and Jobs Act (IIJA) authorized $65 billion to close the digital divide, prioritizing unserved rural areas and high-cost, geographically challenging locations. The bulk of the money will be administered through a state block grant program run through other agencies, but the IIJA tasked the FCC with updating broadband coverage maps that are woefully out of date and methodologically inadequate. 

The FCC must complete these maps in a timely manner to satisfy IIJA deadlines, and both Rosenworcel and Carr agree that the maps are the FCC’s top priority. While the effort requires a wide-ranging upgrade of FCC’s IT systems, the agency is moving expeditiously to fulfill its mission and equip states to begin spending the money as cost-effectively as possible. The FCC’s most urgent priority is not going unaddressed for want of a fifth commissioner.

Nor are coverage maps the only bipartisan priority demanding FCC’s immediate attention. Under Rosenworcel and Carr’s leadership, the agency is finally addressing a longstanding industry priority for broadband buildout: consistent rules for the use of utility poles. There are approximately 185 million utility poles across the United States that are often leveraged as a huge expense and barrier to expanding broadband networks into rural areas. Enormous chunks of private and government broadband funding are not spent on fiber optic cable, but rather on poles in rural areas.

There is a perverse incentive for utilities, municipalities and cooperatives to maximize the costs of pole attachments by blatantly charging excessive, anticompetitive attachment rates or by making the terms and conditions of attachment exceedingly difficult, such as requiring companies to pay unnecessary pole replacement or maintenance costs in order to discourage competitors from using their poles to deliver services. All four current commissioners, regardless of party, understand the importance of addressing this waste of taxpayer dollars. The absence of a fifth commissioner has not inhibited them from beginning the reform process by seeking comment on regulatory improvements.

Despite lacking a fifth commissioner, the current FCC has proven entirely capable of delivering on numerous bipartisan priorities that will improve connectivity, spur innovation and ensure taxpayer resources are being efficiently spent. Sohn’s radical record is disqualifying on the merits, but no Democrat can say with a straight face that the Biden FCC has been hampered by the 2-2 partisan split.

If President Biden is serious about filling the fifth seat on the FCC, he should pull the Sohn nomination and put forward a better-qualified candidate that can earn bipartisan support.

James Erwin the executive director of digital liberty and federal affairs manager for telecommunications at Americans for Tax Reform.

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