Normally, the FCC’s leadership can’t get a ride in anything much smaller than a Chevy Blazer. But at the end of Friday, you’ll be able to fit what’s left of that five-member commission in a Corvette.

On Wednesday, Republican appointee Nathan Simington announced his resignation, effective only two days later. Soon after, Democratic appointee Geoffrey Stark, who said in March that he would leave the FCC “this spring,” announced that his own last day would be Friday.

The letter Simington posted did not cite a cause but instead touted his work “to defend free expression, safeguard national security, and promote infrastructure investment to benefit all Americans.” His chief of staff, Gavin Wax, however, told the trade publication Fierce Wireless that Simington was seeking “other professional opportunities”; Wax did not answer an email sent Thursday morning requesting any further details. 

FCC Commissioner Nathan Simington (Kevin Dietsch/Getty Images)

Former chair Jessica Rosenworcel, another Democratic appointee, resigned on Jan. 20, after which President Trump promoted Brendan Carr, a Republican, to lead the commission. This week’s moves will leave him and Democrat Anna Gomez alone at the FCC.

‘I Refuse to Stay Quiet’

Any road trip for the two would probably feature a lot of bickering, and not just over what radio station to tune in. Carr has broken with the FCC tradition of relative political independence to declare his public support for Trump’s agenda and tout his personal loyalty to the president. He’s also leveraged the commission’s licensing authority to investigate broadcasters for alleged unfairness to Trump, while criticizing European regulators for regulating the content-moderation practices of US social-media firms.

Gomez, meanwhile, has denounced her colleague’s ventures into pressuring newsrooms to be friendlier towards the GOP. “This FCC has been weighing in on partisan issues that go far beyond our core responsibilities,” she said in a speech at the State of the Net conference in Washington in February. She said then that she feared Carr’s inquiries were “a clear attempt to weaponize our licensing authority.”

Gomez went further in an appearance at an event hosted in DC last month by two free-market-minded groups that don’t usually line up with Democrats, the Competitive Enterprise Institute and TechFreedom. She suggested that Trump’s unwillingness to “tolerate disagreement or dissent” would lead him to try to fire her as he has tried to eject the two Democratic members of the Federal Trade Commission.

“I refuse to stay quiet while the government chips away at fundamental rights,” she said. “If I’m removed from my seat on the commission, let it be said plainly: It wasn’t because I failed to do my job, it’s because I insisted on it.”

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The latest chaotic chapter of the Trump 2.0 administration–see also last Friday’s surprise withdrawal of the president’s nomination of private astronaut Jared Isaacman to be NASA administrator–raises questions about whether the FCC can function with only two members.

The Communications Act of 1934, the commission’s founding statute, defines a quorum as three members, and the Senate is still considering Trump’s Feb. 12 nomination of Republican Olivia Trusty to the commission. 

The conclusion of Public Knowledge SVP Harold Feld: “So where does that leave us? Totally lost.”

Feld cited conflicting precedents for how an FCC reduced to a duo could operate: Either the commission would lose its legal authority, or it could retain parts of that through a delegation process under an existing rule. “There is theory and case law to support either interpretation,” he wrote in a nearly 1,000-word email.

Feld said he found the delegation theory more plausible but suggested that any decisions by a two-person commission on such pending matters as T-Mobile’s deal to buy most of the regional carrier UScellular and SpaceX’s move to claw back spectrum held by Echostar would draw legal challenges.

In a post on Thursday morning, three lawyers at the firm Womble Bond Dickinson accordingly predicted that the FCC would pause action on those cases.

Either way, Feld concluded that a cut-down commission could still take such lesser administrative actions as issuing “notices of proposed rulemakings, notices of inquiry and reports,” subject to a caveat that may be crippling in practice: “assuming that Carr and Gomez agree.”

About Rob Pegoraro

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Rob Pegoraro writes about interesting problems and possibilities in computers, gadgets, apps, services, telecom, and other things that beep or blink. He’s covered such developments as the evolution of the cell phone from 1G to 5G, the fall and rise of Apple, Google’s growth from obscure Yahoo rival to verb status, and the transformation of social media from CompuServe forums to Facebook’s billions of users. Pegoraro has met most of the founders of the internet and once received a single-word email reply from Steve Jobs.

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