I would never have imagined that we could get past Memorial Day without Gigi Sohn’s confirmation as the 5th FCC Commissioner/3rd Democrat. But Republicans who think there is no downside to dragging Sohn’s confirmation out interminably to block Title II — especially those who voted in favor of the Infrastructure Investment and Jobs Act of 2021 (IIJA) and are looking for that broadband money to begin flowing to their states — may wish to think again. Why? Because without a vote on the broadband map of 2022, the NTIA cannot distribute the bulk of the Broadband Equity Access and Deployment (BEAD) money (or the Middle Mile money, FWIW). And while it is entirely possible that the FCC might issue the map on a 4-0 vote without controversy, I would not want to bet my state’s broadband on it given that I can’t find a single broadband report vote in the last decade that wasn’t a 3-2 party line vote. (Technically, the 2011 vote was 3-1 with Commissioner Baker not participating. But you get the idea. This does not traditionally go smoothly, and is a lot less likely to go smoothly with $45 billion on the line.)
Why yes, the FCC broadband map does need a majority vote of the full Commission to get issued. Nor does the relevant provision of the IIJA (Sec. 60103) require the FCC to publish the new maps by any specific deadline. It simply requires the FCC to publish the maps before NTIA distributes either the BEAD money or the Middle Mile grant money. So if the Republicans and Democrats cannot come to an agreement on the new 2022 broadband map, the broadband map does not issue in 2022. Or 2023. Or until whenever the FCC gets a third Commissioner.
This is not, of course, much of a problem for the giant ISPs lobbying hard to keep Sohn off the Commission. For them, the BEAD program is more a threat than a money maker, since the money will go to places the largest ISPs don’t want to serve (otherwise, they would be building there already). Indeed, the money is likely to go to potential rivals/competitors. Hence the likely controversy over the maps. The ISPs will do their best to minimize the geographic area unserved by broadband (defined in the statute as 100 megabits down/20 megabits up). Because while giant ISPs might like some of that money, it is far more important to them to keep potential new entrants or existing potential competitors from getting the money anywhere close to where the established ISPs offer service. By contrast, areas that don’t actually have broadband today want maps that reflect this reality — not maps that protect existing incumbents. Hence my belief that (like previous mapping exercises with even less on the line) the vote to produce the 2022 broadband map will be along party lines and thus need a 3rd Democrat.
Which, of course, is impossible without Sohn being confirmed as the 5th Commissioner. Which is just fine by the giant ISPs doing the lobbying, but not for Senators — R or D — from rural states.
I unpack all this below.
To take it from the top, Section 60103 of the IIJA prevents NTIA from releasing any of the BEAD money or middle mile money until the FCC completes the broadband map required under Section 802 of the Communications Act.
Remind Me About This Mapping Thing Again?
For a long time, the FCC has issued a map purporting to show the extent of broadband coverage in this country. I say “purporting” as the map had two major problems. First, it depended on how the FCC defined “broadband.” Second, it depended on the FCC developing a methodology that would provide for accurate mapping at a fairly granular level. Unfortunately, major ISPs (and Republicans) were not interested in accuracy. Instead, they wanted a map that showed that the policy of non-regulation worked perfectly. So they invariably fought like Hell anytime Democrats tried to improve the maps or increase the speed, calling it a plot to impose regulation blah blah blah etc. etc. etc. and so forth. They also engaged in various shenanigans to keep the map of broadband looking awesome while in reality coverage (especially for broadband with useful speeds) continued to suck rocks.
This mattered not simply because bad information makes bad policy. It mattered because the obsession of Republicans and some Democrats against “overbuilding” (read, competition with ISPs not providing decent broadband) meant that money for broadband build out could only go to areas the maps showed as without broadband. Since the maps showed lots of areas without broadband as having broadband, these areas — primarily rural — could not get federal money to build out needed broadband networks. It didn’t help that states also generally relied on the FCC’s maps, and therefore did nothing to help areas marked on the FCC maps as “served.” As an added treat, rural residents of these areas greatly enjoyed hearing from the officials they elected that they really did have access to broadband, despite what they might think based on their experience in real life.
Eventually, especially after Covid hit, broadband became enough of a necessity in rural areas that even Republicans who despise regulation couldn’t ignore the charade. This did not, of course, mean any mea culpas for holding up the maps and maintaining their suckage over the years. But it did induce Republicans to work with Democrats to pass a law (the Broadband Deployment Accuracy and Technological Availability Act, aka the Broadband DATA Act) to improve the methodology for mapping and give the FCC unquestionable authority to demand the relevant information. The law created a new Section 801 of the Communications Act (47 U.S.C. 642), which requires the FCC to issue a new broadband map with the superior methodology every 2 years. The Act also created a bunch of timelines for the FCC to set up rules governing the new mapping process and creating a challenge process to resolve complaints that the map was either over-inclusive or under-inclusive. Section 60103 of the IIJA went further, and made distribution of the newly authorized broadband deployment money contingent on the new and improved FCC maps, to guarantee that money did not go to any place already covered by broadband.
So Why Does the New Map Need a Vote of the Full Commission?
This gets us into basics of administrative law. The Administrative Procedure Act (APA) states that any official action of an agency other than a rulemaking is an agency “oder” and an “adjudication” under the APA (5 USC 151). As Section 5 of the Communications Act explains, any agency action (including issuance of any “report”) requires a vote of the full Commission (47 USC 154), unless the matter has been properly delegated to a bureau, but any decision by a bureau on delegated authority is subject to appeal to the full Commission. (47 USC 155). The broadband map required by Section 802 (47 USC 642) is an official agency action required by Congress. So it requires either a majority vote of the Commission, or an action on delegated authority subject to appeal to the full Commission. This is why, as the observant will note, the FCC approved all the previous broadband maps required by 47 USC 1302 by a vote of the full Commission. (Certain other reports, such as the various annual competition reports, get done on delegated authority by the respective bureaus when not voted on by the full FCC.)
There is an exception for “legislative reports,” which may be issued exclusively by the Chairman (although other members of the Commission may attach minority views) (47 USC 155(a)). So is the broadband map a “legislative report?” The term “legislative report” is not defined in Section 5(a), but from context it would appear that “legislative report” is a report to Congress on a particular matter, not an official agency action. The broadband map ordered by Section 802 is not a report to Congress. It’s an official agency action that Congress directs “the Commission” to do, and on which lots of things — notably the actions of other agencies and distribution of $$$$$ — are based. So the exception of 47 UC 155(a) would not appear to apply here, and the 2022 broadband map that must issue before NTIA can start issuing most of the BEAD money requires a full vote of the Commission.
But Section 802 Doesn’t Expressly Require The Full Commission to Vote on the Broadband Map.
This is why we have rules that set defaults. As the Supreme Court explained in DHS v. Regents of California University, the exceptions to the general rules governing final agency action (and subsequent judicial review) are narrow, and require an affirmative showing of Congressional intent to avoid the usual processes. Looking over both the Broadband DATA Act and Section 60103 of the IIJA, we find no Congressional exemption to the standard APA rule. To the contrary, we see lots of places where Congress requires “the Commission” to set up rules using standard rulemaking to govern the map, including a requirement to stand up a challenge process. So the general rule holds. The FCC needs an official vote to issue the map required for distribution of the BEAD money, either when directly issuing the map of on appeal from the relevant bureau acting pursuant to delegated authority.
I keep stressing that Section 802 directs “the Commission” to do stuff (like issue the map) because a direction to “the Commission” means the full Commission as required by Section 4. That is how the Commission operates. There is no magical process for “the Commission” to adopt something like the map outside of the specific process set forth in Section 4 and Section 5. Why? Because, to reiterate another principle of administrative law: agencies are creatures of statute. They can only do what their statute authorizes them to do. Section 4 and Section 5 of the Communications Act give the general FCC powers on how it does things. The APA gives the default for how an agency does things, absent something specific in the agency’s organic statute. So unless there is a specific statutory provision or exception under the APA, the relevant statute, the Broadband DATA Act, tells “the Commission” to issue a bunch of rules on how to build the broadband map, then tells “the Commission” to issue a map, subject to a challenge process that “the Commission” will develop. When Congress directs “the Commission” to do something, it does so under the processes set forth in Sections 4 and 5 of the Communications Act, and the general provisions of the Administrative Procedure Act. Unless Congress says otherwise, which it did not do here.
Put another way, there is no statutory mechanism for the FCC to issue the report required by Section 802 without a Commission vote. There is nothing in the relevant statutes that outsources the map to someone else (the Act allows the FCC to hire folks to provide mapping assistance, but does not outsource the map to others cf. spectrum coordination committees authorized under Section 332, where Congress did allow the FCC to outsource the function.) So we don’t even have to delve into the “intrinsically governmental function” doctrine to determine whether the FCC could outsource somehow. The only way for the FCC to take action is via the mechanism described in the Communications Act. In this case, that means compliance with Section 4 and Section 5.
And if the FCC did try to issue something that did not comply with the APA and the Communications Act procedures that would get challenged in court. See DHS v. Regents of California University.
Got Any Good Case Citations?
Unsurprisingly, there aren’t any cases where anyone felt they needed to appeal the determinations of the broadband map, even if they thought it stunk. In cases where money actually mattered, such as the Rural Digital Opportunity Fund (RDOF), the FCC established a challenge process for individual pieces of the map people didn’t like. So no need to appeal the entire map. Additionally, actually appealing the entire map is kinda a loser issue. Remember, the question that matters here is not how good or bad the map is, but whether it constitutes and “order”/final agency action pursuant to 5 USC 551, therefore triggering the obligations of the APA and Sections 4 & 5 of the Communications Act to be issued by a vote of the Commission.
So we look to comparable cases for useful precedent. We find two relevant cases on what constitutes agency action. In Fox Television Stations, Inc. v. FCC, 280 F.3d 1027 (“Fox Television Stations”), rehearing granted on unrelated grounds, 293 F.3d 537 (D.C. Cir. 2002), the D.C. Circuit looked at whether a report mandated by Congress to review media ownership rules every two years constituted reviewable “agency action” when the FCC decided to do nothing. In Sprint Nextel Corp. v. FCC, 508 F.3d 1129 (D.C. Cir. 2007), the D.C. Circuit examined whether a statute saying that a Petition for Forbearance will be “deemed granted” through FCC inaction was a reviewable final agency action.
The D.C. Circuit in Fox Television Stations reviewed the FCC’s first Biennial media ownership report. For those unfamiliar with the concept, the Telecom Act of 1996 included a bunch of provisions requiring the FCC to reexamine various rules and eliminate any they found no longer necessary in the public interest. The Media Ownership provision, at 202(h) of the Telecom Act, required the FCC to review its ownership rules every two years (now every 4 years) to determine whether it still needed any of its rules. The FCC decided when it finally issued the report that yes, it still needed all its ownership rules and therefore took no action. It adopted the Report by a 3-2 vote (this happens a lot). Unsurprisingly, lots of folks appealed to the D.C. Circuit to reverse the FCC.
The FCC started by saying that a vote to do nothing did not constitute an “agency action” subject to review. The D.C. Circuit provides a fairly simple test for determining the finality of agency action: “Agency action is final if: (1) it is “the consummation of the agency’s decision making process,” and (2) “rights or obligations have been determined” by the action or “legal consequences will flow” from it.” The Fox Television Stations court concluded that although the agency report decided to take no action, the report itself constituted a reviewable agency action to not repeal rules.
Applying the Fox Television Stations test, issuing the map required by Section 802 sure looks like an agency order. The maps determine whether billions of dollars in federal grant money are or are not available in a particular geographic area, which certainly determines rights and obligations of those wishing to apply for money (or wishing to exclude “overbuilders” they consider ineligible for money). Accordingly, finalizing the broadband maps would appear to be a ‘final agency action.’ And while the D.C. Circuit was looking at the question of Section 704 reviewability/ripeness (i.e., whether a court has jurisdiction to review the action), finding that something is an agency “order” (or a rulemaking) under Section 551 is a necessary pre-requisite of reviewability.
Which is precisely what the D.C. Circuit found in Sprint v. FCC five years later. There, the D.C. Circuit reviewed an automatic grant of a petition for forbearance by Verizon. Under Section 10 of the Communications Act, “Any such petition shall be deemed granted if the Commission does not deny the petition for failure to meet the requirements for forbearance under subsection (a) within one year after the Commission receives it, unless the one-year period is extended by the Commission” (subject to a 90 extension the Commission can grant itself. As the D.C. Circuit explained, a Commission action requires a full vote of the Commission. Otherwise, it is not an agency action. Generally, if a Commission has a tied vote, nothing happens. However, the court noted that this specific statute constitutes an exception to the “nothing happens” rule. Section 10(c) explicitly states that if the FCC fails to take action, then the forbearance petition is deemed granted. Or, to quote the D.C. Circuit: “When the Commission failed to deny Verizon’s forbearance petition within the statutory period, Congress’s decision — not the agency’s — took effect.” In other words, no agency action = not reviewable.
So let’s check 47 USC 642 and Section 60103 of the IIJA. Do the statutes say anything about the map issuing on its own?
(Looks at statutes) Nope.
Do the statutes say anything about a time limit by which the FCC must issue a map and some process by which that issuing occurs if the Commission fails to meet that deadline, similar to the process Congress enacted in Section 10(c)?
(Looks at statutes) Nope.
Does Congress actually direct “the Commission” to issue the broadband map?
(Look at statutes) Yup.
So, putting this all together, does it require a vote of the full Commission to issue the map, because adopting and issuing the map is “the culmination of agency action” that determines “rights and obligations” of parties — in this case access to over $45 billion in federal grant money?
(Looks at statutes, looks at case law). Seems to be. Yup.
And what happens if the FCC votes 2-2 and can’t approve a map?
(Looks at case law) “Bupkis. Zip. Nada. Nothing. No map, no money.”
Why Hasn’t This Come Up Before?
If you look through the history, you will see that the FCC always approves the broadband competition report and associated map by a vote of the full commission. Frequently, this is a 3-2 vote of the full Commission. But no one has ever bothered to appeal the map to a federal court, because it hasn’t traditionally meant anything in reality. So in the sense of “why hasn’t a court opined on the map?” The answer is: because no one has ever challenged the map. Outside of RDOF, it hasn’t meant anything on the federal level. And once the FCC adopts the map, odds are good it gets affirmed given the deference owed to an administrative agency for its decision.
But none of that bears on the question of whether it requires a vote in the first place. And as laboriously recounted above, the answer to that is “yup.” And if the agency issues a map without a majority vote, it gets scrapped and sent back to square 1 pursuant to DHS v. Regents of California University.
But Surely Democrats and Republicans Will Come Together and Discharge the Map 4-0? What Is There to Argue About?
BWAHAHAHAHAHAHAHAHAHAHAHAAA!!! Oh imaginary construct, you slay me. That’s what you want to bet the broadband farm on? Getting the first unanimous vote on the broadband map in I don’t know how many years? BWAHAHAHAHAHAHAHAHAHAHAHA!! I mean, I got good broadband. It’s not like I need the NTIA to release the money. As far as I care, the NTIA can hold the money until 2025, when we try again. But I think Senators representing rural states that desperately need broadband (like, y’know, West Virginia and Arizona or Maine Alaska and Utah, to name some random ones) will be less than thrilled to find out that the much counted on broadband money is not happening because they left the FCC stay at 2-2.
And while all credit to Carr and Rosenworcel for trying to find common ground, this is not like MDUs or resilient networks As noted above, Democrats and Republicans traditionally, to put it kindly, have strong differences of opinion on how to draw the maps. This is why the votes on the map are usually 3-2. Those philosophical differences of opinion have not become less urgent because $45 billion and the future of broadband and closing the digital divide are at stake in the 2022 map. To the contrary, the huge amounts of money dependent on the FCC’s decision on the maps make it more likely, not less likely, that Rs and Ds will dig in their heals. We are talking literally the future of broadband and closing the digital divide here. This is not a vote likely to create a kumbiya come together moment where everyone sets aside their differences in the name of harmony.
And if my state is counting on getting that money, I don’t think that’s the way I would want to bet. But that’s just me. I’m sure the pronounced history of bipartisanship in Congress these days gives Senators from rural states confidence that a 2-2 FCC can work it all out.
For those thinking that this means Sohn should drop out, forget it. Even if the Biden Administration were willing to throw her under the bus, there virtually is no way to get someone other than Sohn vetted and confirmed any time before the midterms. This has nothing to do with actual qualifications, as virtually everyone will admit that — by any objective standard — Gigi Sohn is eminently qualified (to put it mildly). The whole point of Republicans stretching out the confirmation is to maintain a 2-2 FCC deadlock. Even if Sohn withdrew tomorrow (which ain’t gonna happen), Republicans are going to hold up any D until after the mid-term. That would mean starting all over again in 2023. And assuming the Republicans win the Senate, they have made it quite clear they won’t confirm anyone to fill out the FCC. So goodbye getting a full FCC until 2025 at the earliest.
But what if Republicans promised not to hold up an alternative to Sohn. BWAHAHAHAHAHAHAHAHAHA!!! You mean like the time they promised to allow a vote on Rosenworcel if the Democrats agreed to let O’Reilly go through unpaired? And then when they won the midterms they totally broke their word? Like that kind of a promise? BWAHAHAHAHAHAHA!!!!
So it basically comes down to this. Forget Title II. Forget whatever else you don’t want the FCC to do. If you want broadband money to go to your state before 2025, you need to confirm Gigi Sohn as the 5th Commissioner. There is no automatic trigger mechanism on the BEAD money or on the broadband map that circumvents the need for an FCC vote to adopt the new maps before the BEAD money can start flowing. This is admin law 101. Deal.
Stay tuned . . . .