FCC Nominee Gomez to Face Balancing Test in Thursday Senate Commerce Hearing

Renominated Commissioners Brendan Carr and Geoffrey Starks will likely face far less scrutiny, though officials expect Starks to also get questions about how he will function as part of a Democratic FCC majority. FCC inspector general nominee Fara Damelin will also testify at the hearing, which is to begin at 10 a.m. in 253 Russell (see 2306150068). The Senate hasn’t approved a permanent IG nominee since Congress made it a confirmable position. President Joe Biden in 2021 withdrew the most recent previous nominee, Chase Johnson, a Trump administration nominee who is now Anduril Industries senior legal director (see 2102050064).

Senate Commerce ranking member Ted Cruz, R-Texas, is silent for now about his views on Gomez and how he will approach her confirmation process. “We’re still reviewing her record and assessing it,” he told us. He's likely to continue to find ways to delay Gomez’s confirmation wherever he can, as he proved by pushing Senate Commerce to hold one confirmation hearing for her and a separate one for Carr and Starks (see 2306140076), lobbyists said. Cruz took a more sharply negative approach to Sohn during her confirmation process this year than panel Republicans did in either 2021 or 2022 (see 2202090070).

Communications Subcommittee ranking member John Thune of South Dakota predicted he and other Republicans will ask “a lot of the same questions” of Gomez they had put to Sohn, though the ex-nominee “had other issues surrounding her nomination” than Gomez. “We’ll talk a lot about broadband rollout, some conversations about the big issues” the FCC might tackle “like net neutrality,” Thune told us. “I assume it’ll be the usual issues, but it would be much more useful for her and for us to have that” discussion “separate from Carr and Starks” since both incumbents are already known quantities.

Any FCC revisit of net neutrality and particularly another reclassification of broadband as a Communications Act Title II service will be “a big issue for a lot of us” on the Republican side, since the commission rescinded its 2015 order during Ajit Pai’s chairmanship, Thune said. “It’s an issue that hasn’t gone away,” but with a 2-2 tie the FCC has been able to “smoothly” avoid it. “I assume that will change” when and if the Democrats get a majority, he said: “We’ll chat” more about whether Gomez declaring support for a Title II approach would be a dealbreaker for Republicans.

Democratic Unanimity?

It's “a good question” whether Gomez will fare better during the hearing than Sohn did during her three appearances before Senate Commerce, committee Chair Maria Cantwell, D-Wash., told us. She isn’t offering any predictions about the panel’s tone and hasn’t surveyed Commerce Democrats to see if they uniformly back Gomez yet. “I’m just glad we’re trying to get the FCC to its full capacity,” Cantwell said. Sen. Jon Tester of Montana, one of the Democrats who wavered on Sohn earlier this year, told reporters Wednesday he wasn’t yet “in the headspace” of considering his position on Gomez.

“It appears to me that there is strong support” for Gomez and the two sitting commissioners on Senate Commerce and in the chamber at large, said Senate Communications Chairman Ben Ray Lujan, D-N.M. It’s “absolutely critical” that all three FCC nominees move together through the process since “there’s so much pending” at the commission that requires a full five-member complement. He sees a similar need to quickly advance Damelin so there’s a permanent IG to provide oversight. Acting IG Sharon Diskin took that role in January after the death of the incumbent, David Hunt (see 2301260026).

“I believe” net neutrality and Title II reclassification “will be brought up” during the hearing because it’s still “an issue” that Congress hasn’t been able to reach a consensus on, but it’s not clear how much of a focus it will be, Cantwell said. Her own questions for Gomez and others are likely to center on broadband. “The FCC still hasn’t really done its job on understanding the lack of broadband, so I’m curious to hear what” Gomez thinks about the commission’s work on improved coverage data maps, she said.

House Commerce ranking member Frank Pallone, D-N.J., noted during a Wednesday Communications Subcommittee FCC oversight hearing (see 2306210076) that "we need to fix" the FCC's rescission of its previous 2015 net neutrality rules, which left "consumers without protection when it comes to bad behavior by broadband providers. Broadband is the central communications technology of our day, and yet we don’t have a broadband regulator."

Other Issues

Lujan expects the confirmation hearing will feature a “comprehensive” look at the FCC nominees’ policy views. Several proceedings pending before the FCC “will get some attention,” he said: “I’m very curious as to how rules will be implemented” on connectivity funding from the Infrastructure Investment and Jobs Act “and how we can ensure that people are connected across the country.”

Sen. Shelley Moore Capito, R-W.Va., was among others who also cited broadband as a likely focus. “Rural broadband” access, “deployment of the maps and accountability for” federal connectivity spending “are the main things I’m interested in,” she said: The government needs to ensure “all the funding that’s coming through” the 2021 Infrastructure Investment and Jobs Act “is deployed so that we get the results promised.” Capito hasn’t “met with” Gomez yet and hasn’t formed an impression of the nominee, but “she might be on my schedule.”

Senate Foreign Relations Committee Chairman Bob Menendez, D-N.J., told us he plans to discuss his concerns about broadcast ownership diversity with all three FCC nominees (see 2304260066) even though the Standard General/Tegna deal he originally focused on has terminated. New Street’s Blair Levin identified Menendez’s diversity focus as a “potential wild card” that Senate Commerce members could cite during the Thursday hearing.

It’s “not Tegna” but diversity that’s the central issue in concerns about the FCC’s merger review practices, Menendez said. The commission “has got to stop talking about diversity and do something.” “That means that when they get applicants that are diverse, they need to give them a serious shot,” he said: “They have to proactively work to create greater licensing opportunities for diverse entities.”

'Pass-Fail Exam'

Gomez’s 217-page prehearing questionnaire responses say her top priorities are ensuring universal connectivity, improving broadband affordability and “ensuring sufficient spectrum for existing and new commercial technologies, such as 5G, 6G, Wi-Fi, and satellites.” She plans to support “diversity in communications policy” and will advocate for “strong consumer protection, including ensuring consumers benefit from free and open Internet protections and preserving competitive policies.” Gomez backs “vigilance in ensuring that any industry consolidation subject to the FCC’s review does not harm consumers or competition and benefits the public interest” and “effective and pro-competitive spectrum policies, including allocating both licensed and unlicensed spectrum to unleash continued innovations.”

Any confirmation hearing is “a pass-fail exam” in which nominees shouldn’t “confront a senator with the factually-challenged basis of their questions,” Levin said. It’s “pretty clear” that the Senate will be able to confirm Gomez, Carr and Starks, “though that’s not 100% certain.” What will be important is whether Gomez says anything that gives Democratic caucus members like Jacky Rosen of Nevada or Kyrsten Sinema, I-Ariz., reason to waver like they did on Sohn, or allows Republicans “to keep trying to delay” her confirmation, Levin said: Cruz will almost certainly “see this as an opportunity to be adversarial. That’s his game, and he does it well.”

Gomez or Starks “could be the fifth commissioner,” so there’s an argument they could get “equal attention” from Senate Commerce, said Public Knowledge Government Affairs Director Greg Guice. “A lot of people are going to have questions for” Gomez as the nominee with the smallest public record, “including Democrats, about her positions on the issues.” Carr likely “gets an easy walk,” though Senate Commerce Democrats may choose to push back against some of his more controversial policy stances, Guice said.

Gomez “has a very comprehensive background about many if not most of the issues” the FCC might tackle, but “what’s not clear is her position” on those matters, Levin said. She could avoid alienating either party on net neutrality at the hearing by saying “this is an issue that’s been debated many times. The facts have changed in a variety of different ways, so I look forward to a full and robust record in evaluating it.” It’s “an important issue, but we all know the kabuki dance” that surrounds any FCC reevaluation of the matter, he said.

The Fraternal Order of Police, whose opposition to Sohn helped sink her confirmation (see 2303030074), endorsed Gomez. “We recently had what we feel was a very productive conversation with Ms. Gomez and our confidence in her suitability is buttressed by that experience,” FOP National President Patrick Yoes said in a Friday letter to Cantwell and Cruz. FOP also endorsed Carr but didn't mention Starks. CTA Vice President-Regulatory Affairs David Grossman backed all three nominees Wednesday.