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Biden vacancies delay Big Tech reckoning

Data: Axios research; Table: Axios Visuals

President Biden still hasn't named permanent leaders at the key agencies overseeing the tech and telecom industries, giving him a late start on confronting powerful U.S. companies.

Why it matters: If Biden doesn't move quickly, there won't be enough time left for his administration to take on big targets and tackle thorny policy problems.

Biden's tech policy agenda will be largely shaped by the executive branch and regulatory agencies, rather than by a divided and distracted Congress.

The big picture: When compared to the previous four administrations' timelines for nominating the top regulators at these agencies, the Biden administration has fallen months behind in naming leaders for the Federal Trade Commission, the Federal Communications Commission and the Justice Department's Antitrust Division.

  • Since the Clinton administration, March has been the most common month the president has sent nominations for these positions to Congress, starting the often lengthy confirmation process.
  • It's now three months past that, with no indication that nominations are imminent. The White House did not respond to a request for comment.

The backdrop: Unlike other administrations, Biden became president during a global pandemic, the management of which has been the top priority. Striking an infrastructure deal with Congress is also arguably higher on the to-do list for the administration than technology policy these days.

How it works: Once contenders for the top agency jobs are vetted, nominating the president's picks to fill the positions is just the start of the process.

  • Once the names are sent to Congress, it's up to leadership to corral support for the nominees and deal with any opposition, and then schedule a confirmation hearing and vote.
  • Getting to the confirmation hearing stage can take months. For example, FCC Chairman Tom Wheeler was nominated by President Obama in May 2013, but was not confirmed until November.
  • After confirmation, the chairs can hire key members of their own staff, including policy advisers, chiefs of staff and congressional liaisons. Once they're in place, it still takes time to pick priorities while also tackling a potential backlog of routine agency business.

Yes, but: These top posts are filled with acting chairs. Acting FTC Chairwoman Rebecca Slaughter, and Acting FCC Chairwoman Jessica Rosenworcel are angling for the permanent jobs.

  • As such, they are showing they're ready to take on the tough jobs by getting things done and working with the minority commissioners.
  • For example, Rosenworcel rolled out the Emergency Broadband Benefit program mandated by Congress. Slaughter recently sued internet provider Frontier for allegedly misleading consumers about internet service prices.

The catch: Temporary agency leaders are not as empowered to pursue an aggressive policy agenda as permanent heads.

  • "The absence of permanent appointees delays work on anything controversial, as the actings, properly, don't want to commit major resources to big projects that the permanent person wouldn't want," said Andrew Schwartzman, senior counselor at Benton Institute for Broadband & Society.

Between the lines: The head of Justice's Antitrust Division is particularly important during a time of rapid industry consolidation. With limited resources, DOJ has to carefully pick which deals it will review.

Of note: In the past two weeks alone, Amazon announced the acquisition of MGM Studios and AT&T announced it was spinning off WarnerMedia, which will merge with Discovery.

  • While these deals aren't expected to face a lot of scrutiny, any serious move to challenge them — requiring a commitment of lawyers, economists and costly consultants — would probably need to come from a permanent head.

What to watch: Another tech agency needing an appointed leader is the National Telecommunications and Information Administration, an arm of the Commerce Department that takes the lead on policy regarding government-owned airwaves, which are in high demand due to 5G.

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