Wyden Warns an All-Republican FCC Could Violate Federal Law and Cause Partisan FCC Actions to be Overturned in Court

Wyden Warns an All-Republican FCC Could Violate Federal Law and Cause Partisan FCC Actions to be Overturned in Court

Wyden Seeks Legal Opinion From Commissioner Gomez on Whether the Communications Act Permits the Federal Communications Commission to Operate With Only Republican Commissioners

Washington, D.C. - U.S. Senator Ron Wyden, D-Ore. asked Federal Communications Commissioner Anna Gomez to issue a legal opinion addressing whether the Communications Act permits the Federal Communications Commission (FCC) to legally operate with members from a single political party. Wyden warned that federal law prohibits an all-Republican RCC and that any action taken by a partisan FCC could be overturned in court, based on the statutory history of the Communications Act.

President Trump recently nominated Danielle Thumann Severs to serve as FCC Commissioner. If confirmed, she would become the Commission's third Republican. Given that the Communications Act sets a quorum at three members, there is concern that Trump will fire Commissioner Gomez, the remaining Democrat on the FCC, after Severs is confirmed, leaving the agency with an all-Republican panel.

In anticipation of Trump's actions, Wyden's letter to Gomez highlighted amendments enacted in 1982 that require the FCC to have political balance at any operational size: if there are three commissioners on the FCC, only two can be from the same political party.

Before 1982, the Communications Act stated that "not more than four" commissioners of a then-seven member FCC could be from the same political party. Similar language has consistently been used with other bodies, such as the Securities and Exchange Commission and the International Trade Commission.

But in 1982, when resizing the FCC, Congress considered and rejected this numeric limit for the FCC. It instead enacted a novel mathematical formula for political balance: "The maximum number of commissioners who may be members of the same political party shall be a number equal to the least number of commissioners which constitutes a majority of the full membership of the Commission." Congress did so in the same bill that it maintained a numeric limit for a different commission, the Interstate Commerce Commission. Under longstanding legal principles, when Congress amends language in a statute or uses different language in related provisions, courts presume that Congress enacted a distinct legal meaning. Wyden's letter argues that these changes mean that Congress required the FCC to have political balance at any operational size.

Despite this statutory structure, if Trump were to try to operate an all-Republican commission, the practical and economic consequences could be dramatic.

"The U.S. communications sector represents hundreds of billions of dollars in economic valuation, and relies on the legal validity of these FCC actions," said Wyden in his letter to Commissioner Gomez. "Under an all-Republican commission, every single license renewal, equipment certification, spectrum transfer, or other delegated action would be legally defective, casting a cloud of crippling legal uncertainty over the entire communications industry."

Ensuring bipartisan representation on the commission is increasingly important, as FCC Chairman Brendan Carr has abused FCC authorities in unprecedented ways to silence critics of Donald Trump and reward Trump's allies with speedy approvals of controversial corporate mergers.

A copy of the full letter sent to Commissioner Gomez is available here.

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