Sen. Ron Wyden, D-Ore., has asked the FCC’s lone Democrat, Commissioner Anna Gomez, for her legal opinion on whether the Commission can lawfully operate with three Republicans and no one else—and his letter makes clear what he thinks the answer is. If he’s right, the fallout wouldn’t stop at Commission votes. It would reach the delegated license, equipment, and spectrum actions the wireless infrastructure industry depends on every day.
In a letter dated Thursday, Sept. 24, Wyden asked Gomez whether the Communications Act “permits the Federal Communications Commission (FCC) to legally function with only three Republican commissioners.” He didn’t pose it as an open question. “I read the statute to prohibit an all-Republican commission; as such, any actions taken by such an FCC would be null and void,” Wyden wrote.
The trigger is Danielle Thumann Severs, senior counsel to FCC Chairman Brendan Carr and NATE’s 2026 Regulatory Champion, whom President Donald Trump nominated in August to one of the Commission’s two vacant seats, as Wireless Estimator reported. If confirmed, she would join Carr and Commissioner Olivia Trusty for a 3-1 Republican majority. Because the Communications Act sets a quorum at three, lobbyists and other officials believe Trump could then fire Gomez and run the agency as a 3-0 panel, Communications Daily reported.
The speculation gained substantial legal footing on June 29, when the Supreme Court ruled 6-3 in Trump v. Slaughter that the FTC’s statutory for-cause removal protection is unconstitutional, effectively allowing the president to remove FTC commissioners at will and overruling what remained of the 1935 Humphrey’s Executor precedent. The decision did not specifically address FCC commissioners.
Gomez herself has repeatedly acknowledged that Trump might fire her, Bloomberg reported.
“I hope this speculation is off the mark,” Wyden wrote. “But if true, in my reading, the Communications Act would stand in the administration’s way.”
One sentence, two readings
The dispute turns on a single sentence in Section 4(b)(5) of the Communications Act: “The maximum number of commissioners who may be members of the same political party shall be a number equal to the least number of commissioners which constitutes a majority of the full membership of the Commission.”
The common reading ties “full membership” to the five seats Congress authorized, which puts the cap at three. That is how the Congressional Research Service describes the rule: the maximum number of commissioners from one party “is the least number that constitutes a majority (i.e., three).” Read that way, a 3-0 Republican panel would satisfy both the party cap and the three-member quorum.
Wyden reads “full membership” as the number of commissioners actually sitting. Three sitting commissioners make two a majority, which makes two the party ceiling. “Some commentators have tried to suggest that this mathematical formula is just a complicated way of creating a limit of three members from one political party,” he wrote. “But Congress has, in other contexts, shown that it knows exactly how to write a numeric upper limit.” The Securities and Exchange Commission and the International Trade Commission both carry a flat “not more than three” rule.
What Congress did in 1982 — and didn’t do
Wyden’s case rests on legislative history, which his letter lays out in detail. Before 1982, it notes, the Communications Act said “not more than four members” of what was then a seven-member FCC could belong to the same party. When Congress cut the commission to five seats in 1982, the letter says, the Senate initially passed a bill that kept a numeric cap — “Not more than three members of the Commission may be members of the same political party.” According to the letter, Congress rejected that language in conference and adopted the formula instead. Wyden quotes the conference report, H. Rep. 97-765, as saying the language was written: “to establish a formula for political balance in Commission membership, regardless of the size of the Commission.”
The detail Wyden leans on hardest is what happened one section later. According to the letter, the same bill, Pub. L. 97-253, also reduced the size of the Interstate Commerce Commission — and kept a numeric limit for it: “[n]ot more than 4 members.” Wyden invokes the reenactment and consistent-usage canons of statutory construction, under which courts presume that when Congress changes statutory language, or uses different language in related provisions, it meant something different. “Congress’s amendments must mean something; specifically, Congress tied political balance to the actual size of the FCC,” Wyden wrote.
That conference-report phrase can be read another way, however. Congress in 1982 was resizing the commission, and a formula that works “regardless of the size of the Commission” can just as plausibly describe a cap that adjusts automatically to whatever number of seats Congress authorizes — not to however many happen to be filled on a given day. Which reading holds is a question for a court, not a senator’s letter.
The delegated-authority problem is the industry’s problem
What matters more for this industry is where Wyden takes the argument next. The FCC’s daily docket, he wrote, “consists of thousands of routine but essential administrative actions that are taken through delegated authority.” He points to a 2010 Supreme Court decision — New Process Steel v. NLRB, though the letter doesn’t name it — in which a 5-4 majority held that a two-member National Labor Relations Board could not keep exercising the board’s powers through a delegation that required three. In Wyden’s words, the NLRB “could not creatively delegate its way around a statutory quorum requirement. So too for the FCC.”
“The U.S. communications sector represents hundreds of billions of dollars in economic valuation, and relies on the legal validity of these FCC actions,” the letter states. “Under an all-Republican commission, every single license renewal, equipment certification, spectrum transfer, or other delegated action would be legally defective, casting a cloud of crippling legal uncertainty over the entire communications industry.”
For the tower and wireless construction sector specifically, that is not an abstraction. The Wireless Telecommunications Bureau administers antenna structure registration and acts on wireless license applications, and under the FCC’s rules its chief handles matters that can be resolved under existing precedent on delegated authority, without a commission vote. Those are the authorizations that sit upstream of carrier build plans — and, eventually, of the work orders that reach tower crews.
The clock is running slower than the speculation
None of this is imminent. The Senate Commerce Committee postponed Thumann Severs’ Sept. 17 confirmation hearing after she gave birth and began maternity leave, Wireless Estimator reported, and will reschedule it once her leave ends. Communications Daily reported that chamber aides and lobbyists consider a hearing before November unlikely, given the Senate’s preelection recess — which would push the nomination into the post-election lame-duck session.
Pressure to pair the nomination with a Democrat is building in the meantime. In a Sept. 15 letter, a coalition of civil rights and public-interest groups, including the Leadership Conference on Civil and Human Rights, Common Cause and the Communications Workers of America, urged Commerce Chairman Ted Cruz, R-Texas, and Ranking Member Maria Cantwell, D-Wash., to wait until Gomez has been renominated so that both nominees move through confirmation together, TV Tech reported. The Congressional Hispanic Caucus has told Senate Republican leaders the Thumann-Severs nomination shouldn’t come to a vote unless it is paired with a Democrat — suggesting Gomez — calling her “an especially strong candidate to continue serving on the Commission,” Inside Radio reported.
Cantwell herself, in a statement to The Hollywood Reporter, said Gomez “has fought for consumers and against censorship and should be renominated to the FCC.” Gomez, for her part, has said she wants another term. “I’d love to be reconfirmed, and I have supporters in the Senate, which I’m very grateful for, and appreciate very much,” she told The Hollywood Reporter.
Gomez’s term expired June 30, but Section 4(c) of the Communications Act permits her to remain until a successor is confirmed and sworn in, subject to an outside limit: she cannot serve beyond the end of the congressional session that begins after her term expired. That means her holdover can extend through the end of 2027. Firing her before a third Republican is seated would drop the FCC below its three-member quorum altogether, which is why the speculation centers on what happens after Thumann Severs is confirmed rather than before.
A question without a deadline
Wyden’s letter asks for an opinion and sets no date to receive one. It carries no power to stop a firing, and Gomez’s view, whatever it is, would bind no one. What the letter does carry is a detailed statutory argument, with citations, put on the record before anyone is removed.
If a 3-0 FCC ever happens, the first licensee to lose a contested ruling will know exactly where to find it.
