Wheeler-O'Rielly May Clear Senate Before Columbus Day, Observers Say

Observers widely expect Republican nominee O'Rielly, policy adviser to Senate Republican Whip John Cornyn, R-Texas, to be paired with the Democratic nominee Tom Wheeler for FCC chairman in a Senate floor vote. The “optimistic” version is the Senate, working through September to prevent the budget crisis, arranges “a quickie floor vote” and gets the nominees confirmed with ease, Feld said. The “pessimistic” version includes the chance one senator might put a hold on the vote, as happened last session with now-FCC members Jessica Rosenworcel and Ajit Pai, Feld said. Sen. Ted Cruz, R-Texas, threatened a hold this summer due to his dissatisfaction over Wheeler’s answers on the Disclose Act (CD July 31 p1). Given the level of acrimony, especially around the budget, it’s also possible “things are going all to hell,” with Republicans blocking anything from going through, Feld said. A senator might initiate a hold for “grandstanding” reasons, tied to something unrelated like the funding of “Obamacare,” he said.

McSweeny’s nomination is likely to move on a different and perhaps slower track than O'Rielly’s and Wheeler’s, said ex-FTC officials and antitrust lawyers Thursday. They said there appears to be more urgency among some on Capitol Hill for Wheeler to be confirmed so he can run the FCC, and since he’s paired with O'Rielly both are likely to be approved by the full Senate sooner than McSweeny. With the FTC run by Chairwoman Edith Ramirez, there may be less urgency to add a fifth member, plus Republicans would lose their 2-2 tie among the agency’s current members, said those who practice before that commission.

"Considerations are different” for McSweeny and O'Rielly’s nominations, said President Tom Lenard of the Technology Policy Institute, which hosted FTC commissioners at its conference last month in Aspen, Colo. (CD Aug 20 p2; Aug 21 p14). With the FTC’s even split among the two parties, “the Republicans on the commission obviously have a lot more leverage than if the commission were at full strength,” he said. “The Republicans in the Senate may not feel that it’s that important” to quickly confirm McSweeny, said Lenard. “It obviously has nothing to do with her particular qualifications.” Republicans “are going to have more leverage and more influence” now “than they would otherwise,” he said.

Several observers suggested the paired FCC nominees may receive a Senate floor vote before Congress enters the weeklong Columbus Day recess, Oct. 14 to 18. Telecom stakeholders have an interest in getting the FCC back to full strength, Feld said. “Full Senate confirmation of both FCC nominees before Columbus Day is certainly a strong possibility, and I do not see any obstacles,” said Computer & Communications Industry Association Vice President-Government Relations Cathy Sloan. “The sooner the better for the FCC’s heavy workload.”

Senate Communications Subcommittee Chairman Mark Pryor, D-Ark., wants the FCC to reach its full membership as soon as possible, his spokeswoman said, though she said full committee Chairman Jay Rockefeller, D-W. Va., holds the reins. After the hearing will come a questions for the record period, which requires the nominees to answer queries in writing before being their nominations reported out of committee, said a spokeswoman for Commerce Committee Ranking Member John Thune, R-S.D. That process varies in its length, and will likely be followed by some sort of markup to report the nominees out of committee, she said, saying it can be hard to gauge how long the whole process will take. Sloan said those periods tend to have a deadline of a week or two at most, downplaying the possibility of it to be an issue.

There seems to be “a good chance that the Senate vote on the Wheeler and O'Rielly nominations may come within the next month, assuming that O'Rielly is voted out of committee next week, which I expect,” said Free State Foundation President Randolph May, citing a hope for a full, five-member FCC. “But with all that’s going on, from Syria half way around the world to budget battles here at home, you never know for certain what will happen with the Senate schedule.”

"A vote before the Columbus Day recess certainly is possible, assuming there are no unexpected red flags raised in the hearing next week,” said Free Press Policy Director Matt Wood. “The less predictable part of the equation is whether other topics -- like [National Security Agency] spying, Syria, budget deals, or other confirmation fights -- might take up the Senate’s attention or even impact these votes.”

The wild card facing the paired FCC nominees may be the extent to which Cruz digs in on campaign finance, said an industry source who is Republican. Wheeler may be inclined to reach agreement with Cruz on some of his concerns about where Wheeler stands on the Disclose Act, but Wheeler is likely pulled in the opposite direction by the administration and Democrats, who would not want him to appear to be giving ground to a Senate Republican, the source said. He estimated that, due to pressure from Wheeler and the administration, Chairman Rockefeller will direct the Commerce Committee to vote on confirmation of O'Rielly and McSweeny in an executive session in about a week to 10 days after next week’s hearing. That would allow for a Senate vote on the FCC nominees before the Columbus Day recess. Assuming that happens and a Senate vote moves forward, it’s “optimistic but not inconceivable” that Wheeler and O'Rielly may be ready to assume their positions by the FCC’s Oct. 22 meeting, said the industry source. He said it will still likely take a couple of weeks to get the nominees to the Senate floor following a successful committee vote.

McSweeny’s nomination is likely to be approved by the Senate Commerce Committee, predicted antitrust and consumer-protection lawyers. They don’t expect any opposition to arise in that committee nor in the full Senate to her in particular. It may take some time for McSweeny to be paired with a Republican nominee to another agency once her nomination is voted out of the committee, and that pairing process is hard to predict, said the antitrust lawyers we surveyed. “On her own merits, she’s going to be a non-controversial appointment,” said antitrust law specialist Michael Hazzard of Arent Fox.

McSweeny, O'Rielly and Wheeler “will get the job, barring some unforeseen vetting problem,” said Hazzard, who has represented communications and other companies before the FCC and FTC. “It’s just going to be a matter of how Congress queues it based on battles that never seem to stop” and aren’t related to issues involving the two agencies, he said. “Both agencies are functioning” without full complements of members, he said. The FCC “seems to be in more of a holding pattern than the FTC is,” given that agency has a chair who didn’t need confirmation because Ramirez was already a commissioner when Jon Leibowitz left as chairman early this year, said Hazzard.

The decision on who McSweeny is paired with likely will be made by Reid and Senate Minority Leader Mitch McConnell, R-Ky., said O'Melveny & Myers antitrust and consumer-protection lawyer Maryanne Kane. “I'm not that worried about the pairing, because until recent years pairing was not that important,” said Kane, who was chief of staff to two FTC chairs during the administration of President George W. Bush. “It’s become more important in recent years.” McSweeny has “gotten very, very good support from a broad array of the FTC’s constituency and the public,” said Kane. Fans and foes of regulation alike had told us she has broad knowledge from recent work at the Department of Justice’s Antitrust Division and from having worked for then-Sen. Joe Biden, D-Del., and then the Obama administration (CD June 28 p9).

Returning the FTC to five members may not change its focus on consumer privacy and data security issues and precedent for having unanimous decisions on most issues, said some experts. “The existing commission has really spoken with one voice,” and there’s no reason to think that changes with a fifth commissioner, said Hazzard. McSweeny is seen as a “pragmatist” and will work at a “commission that tries to be pragmatic in its decisions,” he said. “The only time the FTC seems to be controversial is when it’s coming after you.” Commissioners “work together -- it’s a collegial body,” said Kane. With privacy and data security “an emerging area, everyone’s aware that the decisions are watched carefully by the public” and other stakeholders, she said. The goal will be to reach “consensus where possible,” said Kane. “They'll proceed on theories where there is general support among the various commissioners, both sides of the aisle.”

Having a third Democrat could give the FTC a more activist “tendency ... on the margins,” said TPI’s Lenard, special assistant to the director of the FTC Bureau of Economics in 1985. Agency staff might be waiting for a 3-2 commission to seek a vote on any enforcement actions where Republicans might vote no, he said. One area where a 3-2 agency won’t affect enforcement is related to Google, said Lenard: That’s because Commissioner Joshua Wright has recused himself from voting on issues affecting that company.

Another possible obstacle for the FCC nominees is President Barack Obama’s ConnectEd program. Feld called the education initiative “a classic example” of what might compel someone like Sen. Tom Coburn, R-Okla., to attempt a hold. Former lobbyists raised the possibility last month at the Technology Policy Institute’s Aspen conference (CD Aug 20 p7). The White House specified in June that ConnectED doesn’t require congressional action (http://1.usa.gov/15quX3G), but stakeholders judged the FCC’s E-rate 2.0 NPRM, passed in late July, politically controversial (CD July 19 p1). Conservative critics frame the program as a tax on cellphone users.

Ro Khanna, Democratic candidate for California’s 17th congressional district seat in the House and former Commerce Department deputy assistant secretary, called out former Verizon lobbyist Tom Tauke, also a former Republican member of Congress from Iowa, and former Rep. Cliff Stearns, R-Fla., both of whom spoke in Aspen as part of the conference, for their statements and ties to the telecom industry. “Tauke has gone so far as to say senators will push any potential nominee to the FCC to publicly disavow the president’s initiative, or risk not being nominated,” Khanna said in a written statement. It blasted “the type of insider game that has left Congress broken.” ,