September Vote a Possibility on Wheeler, O'Rielly Nominations

Some wild cards remain, including a threat by Sen. Ted Cruz, R-Texas, that he may hold up the Wheeler nomination if Wheeler fails to adequately respond to his questions about regulating political speech (CD July 31 p1). Lobbyists said the Senate is notoriously difficult to handicap. President Barack Obama only announced his intention to nominate O'Rielly, which likely means, lobbyists said, that the clearance process on O'Rielly isn’t finished but is fairly far along with no red flags being raised.

"I would expect there’s a high likelihood this could move in September,” said Jonathan Adelstein, president of PCIA, a former FCC commissioner and longtime Senate staffer. “Executive nominations are moving quickly in the wake of the deal to avert the nuclear option” on filibuster rules, said Adelstein, also former Rural Utilities Service administrator. “Nominations are also faster when they're paired and … there’s a lot of industry pressure to move quickly on this in order to expedite the incentive auction.”

"We would like that scenario (including giving the Acting Chair another meeting), but remember, O'Rielly has to have a confirmation hearing and a committee vote first,” said Public Knowledge President Gigi Sohn in an email. “And things can happen, completely unrelated to the FCC, or related, like Sen. Cruz’s hold threats, that can hold things up. The Senate doesn’t return until Sept. 9, so that would give them a really short time period to do a hearing, vote O'Rielly out of committee and then do a floor vote. I'm not saying it cannot be done, but it would take a real desire on the part of all concerned to make that happen. … It would be good to get the full Commission up and running soon, because in reality, Wheeler doesn’t have a whole lot of time to do a lot of really important things, like the IP transition, incentive auction, spectrum screen & fixing the video market."

A September vote is “very possible,” said a carrier executive. “I heard that they [FCC commissioners] were thinking about moving the September meeting up as a backstop.” Often Congress is slow to move “but in areas like this, I think it has the potential to actually act very, very quickly,” the executive said, saying pressure from Senate leaders could make the difference.

Medley Global Advisors analyst Jeff Silva said he has heard “murmurings” that a September vote looks increasingly likely. “Even if there’s bipartisan political support and the will to get Senate votes on the Wheeler and O'Rielly nominations shortly after Congress returns from August recess, it could be difficult to achieve,” he said. “Democratic and Republican lawmakers in September will be ensnarled from the get-go in negotiations over the fiscal 2014 budget and whether to raise the federal debt ceiling. Those two matters alone could push back pending Senate business. At the same time, the O'Reilly nomination at least puts a September arrival potentially in play."

O'Rielly has a long history on Capitol Hill and is a policy adviser to Senate Republican Whip John Cornyn, R-Texas. “Mike’s a talented and valued member of my staff, and he will be a great addition to the Commission,” said Cornyn on Friday. Most who have worked with or lobbied O'Rielly describe as tough-minded or even “prickly.” Several lobbyists said he was apparently picked in part because of expectations he will be willing to stand up to Democrats at the FCC.

"He’s very hard working and he does analyze things through a market-oriented prism,” said telecom lawyer Tricia Paoletta of Wiltshire Grannis, who worked with O'Rielly on the House Commerce Committee. “He’s very interested in an outcome that’s going to rely primarily on market-oriented policies.” She described him as “principled.”

Before signing on with Cornyn, O'Rielly was deputy chief of staff and policy director from 2012 to 2013 for former Republican Whip Jon Kyl, R-Ariz., who retired from the Senate at the end of the last Congress. O'Rielly represented Senate Minority Leader Mitch McConnell, R-Ky., and Kyl during negotiations on the spectrum provisions of the Middle Class Tax Relief and Job Creation Act of 2012. O'Rielly previously worked for the Senate Republican Policy Committee as a technology policy analyst from 2009 to 2010. He’s also a former legislative director and staffer for then-Sen. John Sununu, R-N.H. He worked for the House Commerce Committee from 1995-2003 and started his career as an aide to former Commerce Chairman Tom Bliley, R-Va. O'Rielly received his bachelor’s degree from the University of Rochester.

Senate Commerce Committee Ranking Member John Thune, R-S.D., said “Mike is very bright, thoughtful, and articulate,” in a news release. “He is a champion of the free market, and I know he will be a strong addition to the FCC.” Thune said he got to know O'Rielly during Thune’s chairmanship of the Republican Policy Committee. “In recent conversations, he has impressed me with his understanding of the many issues on the communications horizon and the importance of the Commission’s work when it comes to the unique communications challenges in rural states like South Dakota. In light of the Senate Commerce Committee’s action this week on Tom Wheeler, I look forward to the expedited consideration of Mike’s nomination that Chairman Rockefeller and others have pledged so both nominees can be confirmed by the full Senate in the near future,” Thune said. Thune previously told us it’s “absolutely” the goal of Senate Republican leadership to pair O'Rielly’s nomination with Wheeler’s nomination (CD July 31 p1).

Senate Communications Subcommittee Chairman Mark Pryor, D-Ark., said it’s not essential to pair O'Rielly’s nomination with Wheeler’s, during an interview for C-SPAN’s The Communicators series videotaped before the nomination was announced. (See separate report in this issue.) “There is a sentiment in the Senate that we ought to pair this with a Republican nominee,” said Pryor. “I think everyone is comfortable with Tom Wheeler, but the Republicans would like to have a Republican to go alongside him through the process,” he said. “My view is that we don’t have to pair them. I think it is a Senate courtesy. I think if we can do it in a way that doesn’t delay too long of a time for Tom Wheeler to take over, that’s okay. But if it is going to take a long time and just going to be protracted, I would want to go ahead and get Tom Wheeler on.” Pryor said he doesn’t share Cruz’s concerns about Wheeler’s views on regulating political ads. The FCC “is one of those jobs where it is very difficult to make everyone happy and oftentimes you don’t make anyone happy,” he said. “I just don’t see them weighing in on political speech. I don’t think that is a big item for them. But certainly it is something they could do conceivably, but I don’t see them doing that.”

Communications industry associations and some companies applauded the announcement. Clyburn and commissioners Ajit Pai and Jessica Rosenworcel issued statements saying they look forward to working with O'Rielly.

"Mike has the keen ability to see the big picture while never losing sight of the details,” said CEA Vice President Julie Kearney. “We saw this during his tenure on Capitol Hill when he was working tirelessly to ensure a successful DTV transition.” Telecommunications Industry Association President Grant Seiffert said “returning the number of FCC commissioners to ‘full strength’ will help the agency move forward on the many issues on its agenda so vital to our economic future.”

"Given the desirability of having the new chairman and commissioner on board as the FCC considers implementing the spectrum incentive auction, I hope that Tom Wheeler and O'Rielly will be speedily confirmed,” said Free State Foundation President Randolph May. “I expect O'Rielly will bring a disciplined free market-oriented approach to his work at the Commission in the same vein as Rob McDowell, whom he will succeed."

Mobile Future Chairman Jonathan Spalter urged the Senate to move quickly to approve the nominations. “As mobile devices break sales records and devour data at exponential growth rates, American wireless consumers will benefit from an FCC at full-strength as critical steps are being taken to create the framework for a successful spectrum incentive auction and to make additional spectrum resources available for wireless broadband,” he said.

"Mr. O'Rielly will bring a depth of experience on critical communications issues to his new position,” said NTCA CEO Shirley Bloomfield. “We are hopeful that, having worked for a number of elected officials who represent states with sizable rural areas, he will appreciate the innovative efforts that small carriers have made to deliver universal broadband access.” O'Rielly was “instrumental in negotiating the spectrum provisions of the conference committee on HR-3630, including providing the Commission with incentive auction authority, and understands the issues and processes needed to support competition in the industry,” said Competitive Carriers Association President Steve Berry. The Parents Television Council said O'Rielly should focus on enforcing the broadcast indecency law.