President Obama is not throwing away his last shot to shape the Federal Communications Commission before he leaves office.
The White House on Wednesday renominated outgoing FCC Commissioner Jessica Rosenworcel for another five-year term at the agency, in a surprising, last-ditch effort to extend the FCC career of a respected advocate for internet openness and broadband access.
"I applaud President Obama's reappointment of Jessica Rosenworcel to the FCC, and hope that Congress will act quickly to confirm her nomination," outgoing FCC Chairman Tom Wheeler said in a statement.
That may be wishful thinking.
Rosenworcel, a Democrat whose term expired on Tuesday, faces steep odds of returning to the FCC any time soon, now that Republicans are preparing to take control of the nation's top telecom regulatory agency.
Obama originally nominated Rosenworcel for a second term in 2015, but for the last year Republican lawmakers have stonewalled her reconfirmation, despite unanimous, bipartisan approval from the Senate Commerce Committee. (Blocking Obama's nominees is, of course, old hat for Republicans.)
If the GOP-controlled Senate continues to block Rosenworcel, Republicans would assume a 2-1 FCC majority on Jan. 20, when Wheeler is set to step down. That would pave the way for Republicans to quickly begin rolling back a variety of pro-consumer FCC initiatives including policies safeguarding net neutrality and promoting broadband privacy.
There's still a remote chance that Rosenworcel could ultimately be reconfirmed to the FCC seat she just vacated—if Trump allows her nomination to stand—but that would tie up the FCC at 2-2 until Trump's replacement for Wheeler is confirmed, a process that could take months. It's hard to imagine why Republicans would want to do that.
"It's difficult to see a path forward for Rosenworcel, because nothing has changed on the Republican side, and if anything they are stronger now," said a Capitol Hill source who requested anonymity because they were not authorized to speak publicly. "Republicans refused to move forward on her reconfirmation during the last Congress, so it's hard to see why they would have a rationale to change direction now."
"I believe we have a duty to protect what has made the internet the most dynamic platform for free speech ever invented."
Rosenworcel, who earlier this week tweeted about how she was cleaning out her FCC office, did not return a request for comment on her renomination.
Since her initial confirmation to the FCC in 2012, Rosenworcel, a 45-year-old lawyer and former Senate staffer, has earned a reputation as a passionate advocate for expanding internet access to help close the "digital divide," and as a fierce defender of net neutrality, the principle that all internet content should be equally accessible to consumers.
"I believe we have a duty to protect what has made the internet the most dynamic platform for free speech ever invented," Rosenworcel wrote in a recent essay reflecting on her tenure at the FCC. "That is why I supported network neutrality rules to prevent online blocking, throttling, and paid prioritization."
The FCC's two Republican commissioners have made no secret of their desire to dismantle the legal basis underpinning the FCC's net neutrality protections. That's music to the ears of broadband industry giants like Comcast, AT&T and Verizon, as well as their Republican allies in Congress and on Trump's FCC transition advisory team.
Rosenworcel's signature issue has been what she calls the "Homework Gap," which refers to the lack of affordable home internet access for low-income children. Last year, she helped spearhead an initiative to expand the FCC's Lifeline subsidy program, which for decades has helped low-income people afford phone service, to include broadband internet access.
"This simple change will help bridge the digital divide—and close the Homework Gap," Rosenworcel wrote in her essay. Republicans in Congress have repeatedly tried to undermine the Lifeline program, in a harbinger of things to come under a GOP-controlled FCC.
Although Rosenworcel regularly voted with her two Democratic FCC colleagues, Chairman Tom Wheeler and Commissioner Mignon Clyburn, she occasionally displayed an independent streak, such as when she refused to sign on to the agency's proposed "set-top box" reforms, which would have opened the video market up to greater competition. Nevertheless, Rosenworcel is highly respected by many public internet advocates.
"Rosenworcel has made enormous contributions during her tenure at the FCC," Andrew Schwartzman, a veteran telecom policy lawyer now affiliated with Georgetown University Law Center, told Motherboard by email. "Her tenacity has brought us major advances in public safety, broadband deployment, availability of spectrum and, especially, by defining and reducing the Homework Gap to bring broadband to many more young Americans and their teachers."
It's no secret why many Democrats, including President Obama, support Rosenworcel. She's in favor of strong net neutrality protections, broadband privacy safeguards, and expanded internet subsidies for low-income communities. It's also not surprising, for these reasons, that GOP lawmakers, emboldened by Trump's victory, are likely to oppose her return to the FCC.