Senate Democrats’ Support of Rosenworcel as First Female FCC Chairman Complicates Wheeler Candidacy

More than half of the Senate Democratic Caucus threw their support behind Rosenworcel to become the first female FCC chairman, replacing Julius Genachowski, expected to leave in a matter of weeks. The Senate letter dated Friday was circulated by lawmakers earlier last week, and publicly surfaced Wednesday (http://bit.ly/14w9Ldg).

During a “time of dynamic change and transition in the nation’s communications architecture and policy,” Rosenworcel is “a superb candidate to lead the FCC through these changes as the first Chairwoman of the FCC,” said the letter. “She understands that, in the digital age, the FCC must promote confidence for private investment in our communications infrastructure, while also promoting confidence for consumers to realize the full potential and opportunity of the digital world.” It went on to say that, “Importantly, from our perspective, she also understands and respects the relationship between the FCC and Congress. Commissioner Rosenworcel is very cognizant of the fact that as an independent agency, Congress defines the limits of the FCC’s authority and jurisdiction."

Rosenworcel, a Democrat from Connecticut, was an aide to Rockefeller and replaced former Commissioner Michael Copps in a term that ends July 1, 2015. She and Ajit Pai were approved in the Senate by a voice vote in 2012. The 37 senators told Obama that by nominating Rosenworcel, he “can quickly install a proven leader ... avoid possible delays by other nominees and keep the agency moving forward.” They said Rosenworcel “enjoyed strong bipartisan support during her confirmation to the FCC last year” and is “equally respected by industry, the public safety community, and public interest groups.” A quick nomination process would be “particularly critical with the FCC in the middle of several significant rulemakings and other initiatives,” the letter said. The agency is considering rules for the spectrum auctions, the quadrennial review of FCC ownership rules and a rulemaking on what constitutes a multichannel video programming distributor (CD Nov 8 p2).

The public interest community appears split on Wheeler, based on which groups signed the letter opposing his candidacy. Public Knowledge didn’t sign, and had no comment Wednesday. Free Press signed, as did such groups as the Acorn Active Media Foundation, Center for Media Justice, Global Action Process and Native Public Media. Public interest officials said the letter was a watered-down version of the original version, which was made more moderate to attract signers.

"During his election campaign, President Obama pledged ’to tell the corporate lobbyists that their days of setting the agenda in Washington are over,'” the letter said. “Yet the president is reportedly considering a candidate for the next FCC chair who was the head of not one but two major industry lobbying groups. After decades of industry-backed chairmen, we need a strong consumer advocate and public interest representative at the helm. It’s time to end regulatory capture at the FCC and restore balance to government oversight."

The letter also criticized Genachowski, whose decisions have angered some public interest groups. “Where Chairman Genachowski failed at the FCC, it was in large part because he failed to listen to the public interest community,” the letter said. “His successor must commit not just to broker deals among various industries, but to work with civil society organizations and actively engage the broader public."

Wheeler was defended by PCIA President Jonathan Adelstein, a former Democratic FCC member. “Before making judgments about Tom Wheeler, people need to know him,” Adelstein told us. “I've always known him as a force for innovation and disruptive technologies.” When Wheeler was at NCTA and CTIA, the groups represented “upstarts,” and some left CTIA because he was too pro-competition, Adelstein said. “He’s not in anybody’s pocket -- he’s beyond that,” he added. “I personally know for a fact that he believes in diversity and champions the little guy."

But industry lobbyists said the Senate letter, personally circulated among his colleagues by Rockefeller, is unusual and could prove problematic for Wheeler. “I've never seen anything like this,” said a Democratic telecom lawyer who’s followed FCC issues since the 1970’s. “I've seen letters where six, seven or eight members of Congress write in support of a nominee. I've never seen 30-something senators do that. This is an overwhelming show of support, and I think this speaks very well of Commissioner Rosenworcel that she has the confidence of this many members of the Senate."

"This is the most powerful show of congressional support for a nomination in recent memory,” said a longtime lobbyist. “It has the potential to be a very strong and fundamental game changer.” But, the official said, there’s always the possibility the White House will ignore the letter.

"I do think it’s a game changer,” a former eighth-floor staffer agreed. “I think Tom Wheeler is going to have to come up with something. This wasn’t just a letter. It has 37 signatures on it. It takes him from offense to defense really.” The likely effect of the two letters taken together is hard to gauge, said Jeff Silva, analyst at Medley Global Advisors. “The two letters are seemingly designed to have maximum impact in real-time. Whether they will in fact have the desired effect is hard to say. At a minimum, it’s hard to imagine the White House simply glossing over the letters, given the makeup of the signatories and the sense of gravity the correspondences attempt to convey to the president.” I “don’t know what it means, if anything,” a top industry lawyer said of the letters. “If the president wants to pick Wheeler, he’s going to pick Wheeler. ... My gut is Wheeler is still lead dog. There’s usually a long vetting process. The fact that there’s some delay is not at all surprising."

Wheeler may still face some problems getting the nomination, said Richard Bennett, senior fellow at the Information Technology and Innovation Foundation. “Wheeler doesn’t have a solid base of support -- the consumer rights people hate him because of his background, but the service providers are lukewarm toward him at best. He probably still has the inside track because he’s a middle-ground candidate, but the challenges facing the FCC in connection with the PSTN phase-out and spectrum re-farming require an exceptional chairman, not just a safe choice."

Andrew Schwartzman wasn’t “consulted on the public interest group letter, and I would not have signed it,” said that public interest lawyer. “Unlike most of the signatories, I know Tom Wheeler.” Schwartzman said the Senate letter “presents an obvious but important message, which is that Commissioner Rosenworcel is exceptionally well qualified and would be able to hit the ground running."

The Senate letter was signed by Rockefeller, Jeanne Shaheen of New Hampshire, Bill Nelson of Florida, Richard Blumenthal of Connecticut, Brian Schatz of Hawaii, Claire McCaskill of Missouri, Mark Warner of Virginia, Sheldon Whitehouse of Rhode Island, Kirsten Gillibrand of New York, Heidi Heitkamp of North Dakota, Dick Durbin of Illinois, Jon Tester of Montana, Tom Harkin of Iowa, Mo Cowan of Massachusetts, Jeff Merkley of Oregon, Sherrod Brown of Ohio, Max Baucus of Montana, Carl Levin of Michigan, Patty Murray of Washington, Mark Pryor of Arkansas, Tim Kaine of Virginia, Ben Cardin of Maryland, Mary Landrieu of Louisiana, Mark Begich of Alaska, Debbie Stabenow of Michigan, Joe Manchin of West Virginia, Maria Cantwell of Washington, Jack Reed of Rhode Island, Barbara Boxer of California, Mark Udall of Colorado, Dianne Feinstein of California, Tammy Baldwin of Wisconsin, Tom Udall of New Mexico, Amy Klobuchar of Minnesota, Martin Heinrich of New Mexico, Chris Murphy of Connecticut and Angus King, an Independent from Maine.

Not signing the letter doesn’t necessarily mean the senators wouldn’t choose to support Rosenworcel if she were nominated by the president, a senior Hill staffer told us. The 17 Senate Democrats who did not sign the letter are: Senate Majority Leader Harry Reid of Nevada, Senate Judiciary Committee Chairman Pat Leahy of Vermont, Senate Appropriations Committee Chairman Barbara Mikulski of Maryland, Senate Homeland Security and Governmental Affairs Committee Chairman Tom Carper of Delaware, Michael Bennet of Colorado, Robert Casey of Pennsylvania, Chris Coons of Delaware, Joe Donnelly of Indiana, Al Franken of Minnesota, Kay Hagan of North Carolina, Mazie Hirono of Hawaii, Tim Johnson of South Dakota, Frank Lautenberg and Robert Menendez -- both of New Jersey, Chuck Schumer of New York, Elizabeth Warren of Massachusetts and Ron Wyden of Oregon. Bernie Sanders, I-Vt., also didn’t sign.

Franken said Rosenworcel is a “very impressive candidate, and he would welcome her designation as the first Chairwoman of the FCC,” his spokesman emailed us. A Lautenberg spokesman told us: “It’s not the case that he wouldn’t support” Rosenworcel as FCC chairman. Menendez “just hasn’t made a decision one way or another,” his spokesman said. Johnson “was not asked to sign the letter, and it has no indication one way or the other,” his spokesman said.

Commissioner Mignon Clyburn shouldn’t feel slighted by the senators’ endorsement of Rosenworcel, who’s been a commissioner for less than a year, a telecom lobbyist said. “The selection of chairs has never been driven by seniority. It’s a factor sometimes, but previous chairs who have been picked ... have been pretty junior compared to some of the commissioners.” If Genachowski leaves before his successor is approved, he’s likely to be replaced on an acting basis by Clyburn, industry sources said.