FCC: Brendan Carr, You Complete Me

On June 28, 2017, President Donald Trump announced his intention to nominate Brendan Carr for the last remaining open seat on the Federal Communications Commission. Actually, you might call it a “double nomination”: Carr is being put forth to complete the remaining term of former FCC Chairman Tom Wheeler which expires June 30, 2018, AND a second full term beginning the next day. The nomination, officially sent to the Senate on June 29, will likely be paired with that of former FCC Jessica Rosenworcel. The two are likely to get a confirmation hearing before the Senate Commerce Committee in July. Here’s a short introduction to Brendan Carr and a look at what his nomination might mean for the FCC moving forward.

A Lawyer’s Lawyer

As a young man, Brendan Carr matriculated at Georgetown University, earning a degree in government in 2001. He went on to graduate magna cum laude from the Catholic University of America’s Columbus School of Law and obtained a certificate from its Institute for Communications Law Studies in 2005. During law school, Carr gained experience interning for then-FCC Commissioner Kathleen Abernathy, the FCC’s Enforcement Bureau, and the House Subcommittee on Communications, Technology, and the Internet.

Carr began his career as a law clerk for Judge Dennis W. Shedd of the U.S. Court of Appeals for the Fourth Circuit. Judge Shedd is a nominee of both Presidents Bush and a former staffer to Sen. Strom Thurmond (R-SC). In late May, Judge Shedd wrote a dissent when the en banc circuit upheld a lower court's injunction against the President's travel ban by a vote of 10-3 in International Refugee Assistance Project v. Trump.

Later Carr joined the prestigious law firm Wiley Rein LLP, founded in 1983 by former FCC Chairman Richard Wiley and Bert Rein, former Deputy Assistant Secretary of State for Economic and Business Affairs. The firm “represents as perfect a merging of public policy and corporate America as exists in Washington,” the Legal Times said. The firm’s clients include AT&T, the National Association of Broadcasters, US Telecom, and Verizon. At Wiley Rein, Carr worked in the firm’s appellate, litigation, and telecom practices. He represented clients in both trial and appellate court proceedings, including complex litigation involving the First Amendment and the Communications Act.

From Wiley Rein, Carr first joined the FCC in the Office of General Counsel in 2012, providing legal advice on a wide range of spectrum policy, competition, and public safety matters. And in February 2014, Carr became a legal advisor for then-Commissioner Ajit Pai. At the time, Commissioner Pai said, “Brendan is a lawyer’s lawyer, having worked in the FCC’s Office of General Counsel and litigated First Amendment and other telecom cases while in private practice. He combines this experience with a keen instinct for telecom policy, which I will rely on as the Commission tackles many important issues.”

Chairman Pai named Carr the FCC’s Acting General Counsel on January 24, 2017, just days after President Trump had elevated Pai to FCC chair. In the announcement, Pai said, “I am very pleased that Brendan has agreed to return to the Office of General Counsel to lead it. He is a lawyer’s lawyer, and I look forward to working with him and his team to ensure that as the agency seeks to deliver digital opportunity to every American, it does so consistent with the expressed will of Congress.”

Reaction

After the nomination was announced, FCC Chairman Pai said, “I congratulate Brendan Carr on the President’s announcement that he will be nominated to serve as an FCC Commissioner. Brendan has a distinguished record of public service, having worked at the agency for over five years, including most recently as the FCC’s General Counsel. In particular, Brendan’s expertise on wireless policy and public safety will be a tremendous asset to the Commission. I look forward to working with him in his new role and wish him all the best during the confirmation process.”

FCC Commissioner Michael O’Rielly predicted that Carr “will be an added voice at the Commission in efforts to reduce senseless regulations and install sound policymaking.”

FCC Commissioner Mignon Clyburn said that Carr is “well respected on both sides of the aisle and has demonstrated a deep knowledge of the legal and policy issues facing the communications sector, both as an advisor to then Commissioner Pai and now as General Counsel of the agency. Brendan is a great asset to the Commission.”

Industry players applauded the nomination: Verizon said Carr is an “excellent choice;” AT&T said he’s the “perfect choice;” USTelecom said, “He has always worked with integrity, fairness, and a deep commitment to public service.”

The New FCC in a Cynical World

Politico’s Margaret Harding McGill wrote that the Carr nomination “shows a preference for old-hands to head the agency.” Carr is obviously a familiar face at the FCC as is President Trump’s other nominee, former-Commissioner Jessica Rosenworcel. Carr's in-depth regulatory knowledge, plus his backing from Chairman Pai, is likely what set him apart from the other contenders for the GOP slot, Margaret Harding McGill reported.

As Jerry Maguire famously told Dorothy Boyd, “We live in a cynical world. A cynical world.” So we gotta ask, is this nomination in the public interest? First, of course, is the fact that Carr represented some of the companies he may soon regulate. Well, sure, that happens – just look at the roster of current and former FCC chairmen. But because of Carr’s previous role on Pai’s staff, one has to wonder how independent of the Chairman he will be. Early reports are – not so much:

• Recode: Carr’s nomination gives the FCC’s current chairman, Ajit Pai, a reliable political ally as he continues his push to deregulate the telecom industry, including recent efforts to scrap the government’s existing net neutrality rules.
• Politico: Carr is seen as a strong ally for the Republican chairman.
• TVNewsCheck: The appointment of Carr would give FCC Chairman Ajit Pai another reliable ally in executing his deregulatory agenda.
• The Hill: Carr will likely be a close ally to Pai as the chairman pushes his proposal to kill the FCC's Obama-era net neutrality rules.
• NPR: Carr, Pai's legal adviser for three years, is expected to back the chairman's efforts to undo the FCC's 2015 net neutrality rules.
• Los Angeles Times: Carr would be expected to support Pai’s push to roll back the regulations for online traffic.... Because he worked on Pai’s staff, Carr would be expected to back the chairman’s proposal to reverse the controversial net neutrality rules.

Accelerating the Agenda

If you like what the FCC has been doing since Chairman Pai took the reins, the recent nominations and hoped-for confirmations are great news. Writing in The Verge, Jacob Kastrenakes notes, “the FCC will be able to start accomplishing a lot more.” Why? The FCC has only had three commissioners this year and “That’s meant fewer people to deal with day-to-day regulatory issues, less expertise on the many technical questions the commission faces, and the potential for stalled votes, since a minimum of three commissioners is needed to approve new policies.”

In short, a full FCC gives the commission’s majority a firmer hold. Once three commissioners vote on an item, the other two are forced to take a vote, too, and Republicans can use that to move things along at a quicker pace. They also no longer face the threat of the lone Democrat on the commission skipping a vote so that an item can’t go through, Kastrenakes wrote.

Of course, the best way to keep up with the FCC agenda is your daily dose of Headlines. We’ll see you there.

[Editors note: BTW, Happy 4th of July! Benton’s weekly wrap-up will take a holiday and we’ll return July 14.]

Quick Bits

• Additional Action Needed to Address Significant Risks in FCC’s Lifeline Program (Benton Summary of GAO report)
• See Also: Benton Supports Lifeline Program
• President Trump angrily lashes out at ‘Morning Joe’ hosts on Twitter (Washington Post)
• Sprint Enters Into Exclusive Talks With Charter, Comcast On Wireless Deal (Wall Street Journal)
• T-Mobile Joins With Public TV in Repack (TVNewsCheck)
• Rep. Pallone Wants Investigation of Bogus Net Neutrality Comments (Broadcasting&Cable)
• Chairman Pai reveals new details about cyberattack following John Oliver segment (The Hill)
• Sen Cruz Delays NTIA's Redl's Commerce Committee Vote (Politico)
• EU fines Google €2.4bn over abuse of search dominance (Financial Times)
• Canada's top court rules Google must block some results worldwide (Reuters)

Weekend Reads
Obama’s secret struggle to punish Russia for Putin’s election assault (Washington Post)
Trump is struggling to stay calm on Russia, one morning call at a time (Washington Post)
A Costly Retraction for CNN and an Opening for Trump (New York Times)
Former FCC Chair Tom Wheeler: Net Neutrality Fight Destined For Courtroom (Consumerist)
Twenty years after Reno v. ACLU, the long arc of internet history returns (Brookings)
School-to-Home: Understanding Why 24/7 Access to Broadband is Essential to Student Learning. (Consortium for School Networking)
New report swings and misses on communities and next generation broadband (Blair Levin, Brookings)
Privacy Legislation Falls Short of Providing Consumers With Comprehensive Online Privacy Protections (Public Knowledge)

Events Calendar for July
July 11 -- The Past, Present, and Future State of Lobbying, National Institute for Lobbying and Ethics
July 11 -- Less Heat, More Light: Finding the Right Path Forward for Net Neutrality, ITIF
July 13 -- Federal Communications Commission Open Meeting
July 18-19 -- Access to Capital and Telecom Policy Conference, MMTC
July 27 -- Chief FOIA Officers’ Council Meeting, National Archives and Records Association

ICYMI from Benton
Rural Broadband Takes Center Stage During Tech Week, Kevin Taglang