Interconnected TMT

Congress is expected to continue its attempts to renew the Federal Communications Commission’s (FCC) spectrum auction authority, which expired in March 2023. The Republican-controlled Senate Commerce Committee will likely look to move S.3909, the Spectrum Pipeline Act, introduced by Sens. Ted Cruz (R-TX), John Thune (R-SD) and Marsha Blackburn (R-TN), which was referred to the Senate Commerce Committee but did not advance. Note, however, that Senate Republicans with closer ties to the Pentagon have indicated potential opposition to the bill. At the FCC, Commissioner Brendan Carr has been vocally supportive of this bill, which would require the National Telecommunications and Information Administration (NTIA) to identify 2,500 MHz of spectrum for reallocation in the next five years (half of which must be identified within two years), and would require the FCC to (a) auction 1,250 MHz in the next six years for 5G (with 600 MHz to be auctioned within three years) and (b) allocate 125 MHz for unlicensed use (with the remaining 1,125 MHz to be auctioned by the FCC for licensed or unlicensed use within eight years).

Commissioner Brendan Carr has advocated for Enforcement Bureau reform at the Federal Communications Commission (FCC), suggesting that the FCC should “trim its sails” on enforcement to avoid drawing legal challenges to the agency’s constitutionality: “The more we push the boundaries of our own existing enforcement authority, we’re [going to] hasten the day when very significant constitutional challenges to the entire scheme will be brought forward.” Commissioner Carr has accused the Enforcement Bureau under Chairwoman Jessica Rosenworcel’s leadership of “overreach” in several cases, including orders issued against major wireless carriers over certain commercial practices related to the use of customer location data, which imposed nearly $200 million in forfeitures earlier this year. Those forfeitures are currently being challenged in federal court by carriers, who have raised questions about the constitutionality of the FCC’s enforcement framework more generally. Commissioner Carr’s past statements suggest that he will likely be less aggressive on monetary enforcement, at least until the FCC’s jurisdiction is clarified by the courts.

President-elect Donald Trump indicates that he would like to exercise more control over the Federal Communications Commission (FCC) and questions the constitutionality of independent agencies, generally. He has expressed a desire to end the independence of agencies such as the FCC and Federal Trade Commission (FTC). This could be accomplished by making their regulations subject to White House review, perhaps by updating Executive Order 12866 to remove the exemption for independent agencies as suggested in the Project 2025 report.

At the FCC. President-elect Donald Trump has announced that he will elevate current senior Republican Commissioner Brendan Carr to the Chairman’s seat. Commissioner Carr has been a dynamic force at the Federal Communications Commission (FCC) for years, and is particularly focused on deregulation, competition, infrastructure development and national security. Commissioner Carr will, of course, change direction from current Chairwoman Jessica Rosenworcel on a number of issues, including net neutrality, digital equity and market competition. His agenda and focus also will be different and could include helping the federal government rationalize spending of all the broadband funding that has been allocated, advancing rules for content moderation online and leveling the playing field for communications providers that offer the same services, but over different platforms. How quickly he can embark on his agenda will depend on how quickly Congress can confirm another Republican commissioner to the FCC. During Chairwoman Rosenworcel’s leadership at the FCC, it took over two and a half years before there were five commissioners seated at the FCC and she had a Democratic majority. Until the additional Republican commissioner is confirmed, the agency will be evenly split, with two Democrats and two Republicans, making it difficult to move ahead with most major reforms. Getting a third Republican commissioner confirmed by a Republican Senate should occur relatively quickly, but the Senate calendar is crowded, and other nominations will likely take priority. Sen. Roger Wicker (R-MS), former Chair of the Senate Commerce Committee, has endorsed his longtime staffer, Olivia Trusty, for the open position. Other names that have been floated include Senate Commerce Committee Policy Director Arielle Roth and former FCC General Counsel Tom Johnson. Additionally, Republican Commissioner Nathan Simington’s term has expired, though he is able to remain in his position until January 3, 2026. This will require either the renomination of Simington or the nomination of another Republican for the seat.