Federal Communications Commission chairman Brendan Carr’s days at the head of the agency may be numbered if one Democratic senator has his way.
“I don't think Chairman Carr is going to be around more than another three or four months, because when we have the gavels in here, he will be here once a month,” Sen. Ben Ray Luján (D-N.M.) said during a hearing by the Senate Committee on Commerce, Science and Transportation on the nomination of FCC Chairman Carr’s legal adviser, Danielle Thumann, to be the third Republican FCC commissioner. “And Mr. Carr, if you're listening now, know you're going to be in this body once a month, if not more, and in the House of Representatives as well, answering questions. And you don't have the protection of the gavel any longer.”
As one of the first Senate committee hearings held since the Democrats regained control of the House and Senate in the midterm elections a week ago, the event served as a preview of how the new majority will approach issues important to broadcasters.
Even before the elections, civil rights groups complained that any hearing for Thumann should also include a renomination hearing for Commissioner Anna Gomez, the sole Democrat on the FCC, which has five members when at full capacity.
Several Democratic senators raised that issue again and questioned the appropriateness of the hearing.
“I strongly believe we should be considering the renomination of Commissioner Anna Gomez, the sole remaining Democrat,” said Sen. John Hickenlooper (D-Colo.). “She is someone I have supported and is serving on an expired term.”
With FCC rules mandating a minimum of three commissioners for a quorum, her presence in the current 2–1 Republican majority is necessary for the FCC to conduct business, Hickenlooper said, adding that a recent Supreme Court decision could allow President Trump to fire Commissioner Gomez, resulting in no Democratic representation on the commission.
“Unfortunately, I don't think it's a coincidence that today's nomination is moving on its own, but I don't think this strategy will age well in a new Congress or a new administration,” he added.
We should be investigating the FCC, not confirming a Brendan Carr adviser to the commission.
Sen. Ed Markey. (D-Mass.)
Sen. Ed Markey (D-Mass.) agreed, saying, “We should be absolutely ensuring that we have a full commission, and that's three Republicans and two Democrats.”
He also disagreed with the committee’s approach to the hearing itself.
“We should be investigating the FCC, not confirming a Brendan Carr adviser to the commission,” Markey said. “We should not be confirming a Republican nominee without also renominating and confirming Anna Gomez, the Democrat, and filling the other vacant Democratic seat.”
In her opening remarks, Thumann said, if confirmed, she would focus on modernizing America’s communications networks, strengthening public safety and fighting consumer fraud.
“Protecting consumers from illegal robocalls and fraud and scams must remain the agency’s top consumer protection priority,” she told the committee.
Thumann has been Carr’s legal advisor on and off for several years and advises him on matters before the Wireline Bureau, the Public Safety and Homeland Security Bureau and the Consumer and Governmental Affairs Bureau.
While several of those topics were raised during the hearing, it was her boss’ approach towards the First Amendment that drew the most consternation from Democratic committee members.
Asked by Markey if the FCC has the authority to punish a broadcaster because the president disagrees with its news coverage, Thumann was evasive.
“Broadcasters are subject to public-interest obligations as part of the public-trustee model in exchange for the licenses that they hold, as part of those public interest obligations, they are subject to many different rules and requirements,” she replied. “And the FCC is charged with enforcing and investigating the public-interest standard against broadcasters.”
Markey criticized her, saying that the Constitution guarantees First Amendment rights to broadcasters.
“This should be a straightforward constitutional limitation because the FCC cannot punish a broadcaster simply because the president doesn't like its coverage,” Markey said. “Yet Chairman Carr, your boss right now, has threatened to do exactly that.”
Thumann was more upfront with committee Chairman Sen. Ted Cruz (R-Texas), who cited numerous instances of Democratic presidents threatening investigations into broadcasters for airing content they didn’t agree with, and even brought up the commission's investigation of eight ABC-owned stations after Carr threatened the network over an episode of “Jimmy Kimmel Live!”
“If you are confirmed, will you commit to basing licensing decisions on the law and the record, and to not using the FCC's authority to pressure or punish a broadcaster for protected speech?” Cruz asked the nominee, to which she replied, “Yes.”
Sen. Luján warned Thumann that the new Democratic majority will hold the commission to account and that she should carefully consider whether her decisions will ensure that the FCC is “a full, independent body.”
Reflecting on his vote to approve Carr as chairman, Luján said he doesn’t recognize the chairman anymore.
“He's a different commissioner today than he was then. I don't understand it,” Luján said. Addressing Thumann directly, he said: “You have a strong future in this world, influencing policy in America. Be mindful of your decisions and your character, and don't let Brendan and Donald, the president and the chairman of the FCC, hurt you and diminish you and your future. I certainly hope that that’s something you—I’m not going to ask you a question about it, but reflect on that.”
