Simington announces departure. Starks announces his last day.
Two of the four FCC Commissioners will be exiting this week, leaving the bench with two members and no quorum.
In a surprise announcement today, Republican FCC Commissioner Nathan Simington has announced that he will be departing the Federal Communications Commission and has announced his departure date. In addition, today, Democrat FCC Commissioner Geoffrey Starks, who had given us advanced warning has also announced his departure date from the Commission bench.
Starks had announced that his final day at the Commission will be on June 6, 2025. In Simington’s announcement, he announced that he will be concluding his tenure “at the end of this week”.
Simington, a Trump 45 appointee, was originally confirmed by the Senate on December 8, 2020 on a 49-46 vote. He assumed office on December 14, 2020.
While serving under both the Rosenworcel and Carr administration, Simington had always been the quiet one, compared to his counterpart, Commissioner, now Chairman Brendan Carr. Simington is probably best known for his position on the Commission being able to impose forfeitures citing the Supreme Court case Loper Bright Enterprises v Raimondo, the case where the Court rejected the long-standing “Chevron deference”. As a result, he would dissent on votes involving forfeitures that reached the full Commission, including those for violations of the PIRATE Act.
In his statement, Simington states that he will remain committed to advancing the cause of limited government, free speech and American innovation as well as remaining committed to shaping the future of communications policy and will continue to advocate for the values and priorities that have guided his public service.
In Starks’ statement, he stated that:
“Serving as a Commission has been the highlight of my career. I want to thank my team, and all of the parties that work alongside the Commission - from industry to public sector advocates - for their collaboration and partnership. Most importantly, I want to thank the staff of the Commission - in my opinion, the very best of public servants. And, of course, thank you to all of my fellow Commissioners, past and present.”
What these departures do to the Agency
A likely unprecedented situation
With the double departure of both Starks and Simington by the end of this week, this places the Commission in a very likely unprecedented situation. Normally, the Commission would have 5 members including the chairperson, with the majority party having up the three Commissioners. As of the end of this week, the Commission will be down to only two members, Republican Chairman Brendan Carr and Democrat Commissioner Anna Gomez.
Lack of quorum
With the Commission down to two members, this will put a hold on advancing certain actions, such as rulemaking, applications for review and other actions taken, at the Commission level. Section 4(h) of the Communications Act [47 USC §154(h)] states that it takes three members in order to constitute a quorum. Without a quorum, actions “from the bench” cannot take place.
Delegated authority and daily business
Section 5(c) of the Communications Act [47 USC §155(c)] authorizes the Commission to delegate most functions performed by the Commission (other than Applications for Review) to a panel of Commissioners, an individual Commissioner, an employee board, or an individual employee.
Rules regarding delegated authority can be found in Part 0, Subpart B of the Commission’s Rules. For example, under these rules, the Media Bureau has been given delegated authority to act with the following exceptions:
Notices of proposed rulemaking, notices of inquiry and final orders, except in cases involving the amendment of the FM and TV table of allotments.
Applications for review, however, the Bureau Chief can dismiss such an application that does not meet the statement and filing requirements of §1.115 of the rules [47 CFR §1.115].
Matters that present novel questions of law, fact or policy that cannot be resolved under existing precedents and guidelines.
The imposition, reduction or cancellation of forfeitures in amounts more than $20,000.
All of those issues must be handled by the Commission.
Routine matters that are handled by the Media Bureau, such as the processing of broadcast applications should not be directly impacted by the 1-1 makeup of the Commission after the end of this week.
Increased pressure on the Senate to confirm Trusty
With Republicans no longer having the 2-1 advantage on the bench, the departure of Simington is expected to put new pressure on the nomination of Olivia Trusty. On January 17, 2025, then President-elect Donald Trump announced that he has nominated Olivia Trusty to be a Commissioner on the FCC to take the seat that would be vacated by then Chairwoman Jessica Rosenworcel. Trusty’s nomination is still hung up in the Senate. With this week’s departures, the President can nominate two additional candidates, one from each party.
The June FCC Open Meeting
The departures do raise uncertainty on our end regarding the next FCC Open Meeting, which is scheduled for June 26, 2025. Under normal Commission processes, the agenda for the meeting is released three weeks (21 days) prior to the meeting date, which in this case, would be tomorrow, June 5, 2025. There are currently six items on the Commission’s public circulation list. These are items that may come up in a future Open Meeting or otherwise will need to be voted on by the Commissioners. These items include two items related to regulatory fees, modernizing the FCC Form 477 data collection program, appointment of a “Defense Commissioner”, revisions to cable television regulations and an Enforcement Bureau order.
Michi’s opinion
With these departures, it brings serious question into the current culture inside the halls of L Street. One industry insider told REC that Simington was simply “tired”. Tired of what? We don’t know.
As regulatory advocates, we will need to keep a close eye on the Agency and how Commissioner Carr, who is statutorily hobbled at the ankles with this temporary shift in the agency dynamics, will react to being allegedly powerless. But at the same time, there are still a lot of things that the Chairman can do on his own. The recent Agency positions on issues such as Diversity, Equity and Inclusion are a good example.
Even though we don’t have a quorum and it will be difficult to get rulemaking through, this is not a time for celebration. This is a time for concern. While we may advocate to avoid speculation and to trust, but verify information received, we need to remain on guard for curve balls from left field.
The FCC would become a "board" and can most things, so long as they find that "the public interest would be disserved by waiting the convening of a quorum of the Commission." The only things they can't decide are petitions for recon of Commission Actions or applications for review of Bureau Actions. See 0.212. I'm not sure there's precedent that sets limits here.