With the 2008 presidential election on the horizon, Washington has started looking forward to 2009 and the changes that will be wrought by a McCain or Obama presidency. The Federal Communications Commission (FCC), though, cannot afford to look that far ahead—what the Senate does in late September or early October may dramatically affect what actions it can take in the coming months.
Commissioner Deborah Taylor Tate, first appointed to the FCC in 2005 to fulfill a term that expired in June 2007, has been awaiting Senate action on her renomination to a full five-year term on the Commission for more than a year. With Senate action on her renomination unlikely given the pending end of the Bush Administration, the question hanging over the Commission is when Commissioner Tate will have to relinquish her seat. By law, Commissioner Tate may remain on the FCC until the Senate ceases its legislative work for the year and adjourns sine die, dissolving the body until the 111th Congress is seated in January 2009.
It is unclear when the Senate will adjourn sine die. The Senate is expected to recess in late September for the elections, and current information indicates that the Senate does not plan to return to Washington until January. Majority Leader Harry Reid (D-NV) may elect not to adjourn sine die at the end of September, however, so that he has the option of bringing the Senate back for a lame duck session, if necessary. Under this scenario, the Senate probably would not adjourn sine die until January 2009, adopting the motion just before the Senate for the 111th Congress is sworn in. If Majority Leader Reid elects this route, Commissioner Tate would remain on the Commission until then, exercising full voting power over that time.
Of course, what happens to Commissioner Tate will dictate the docket of the Commission for the remaining year. Chairman Martin has outlined an ambitious schedule for the next six months, including consideration of an overhaul of the universal service program. If Commissioner Tate is forced to step down, though, the FCC will return to a 2-2 deadlock of Republicans and Democrats, making action much more difficult. This deadlock also may pose other challenges for the Commission. Several members of the House Energy and Commerce Committee have expressed concerns that if the Senate adjourns and Commissioner Tate has to step down, telecommunications companies may exploit the 2-2 deadlock that would result by obtaining "deemed granted" petitions.