Rosenworcel Renomination Likely on Deck for December Commerce Committee Vote

The markup is tentatively scheduled for December’s second week and will also involve Thune’s spectrum legislation package known as Mobile Now, a senior committee staffer told us earlier this month. No markup session for December has been announced.

Rosenworcel’s term expired this summer, and after her October renomination hearing, Thune told reporters he saw no major obstacles to advancing her renomination (see 1510280065). He has said Rosenworcel, a Democrat, may be paired with a Republican nominee and cited one possibility as the unnamed eventual successor to former FTC Commissioner Joshua Wright. That FTC commissioner slot is open, and FTC Chairwoman Edith Ramirez's term expired Sept. 25. The office of Senate Majority Leader Mitch McConnell, R-Ky., typically would be involved in the selection process for Wright’s replacement and determining how such nominees advance to the floor.

One possible source of delay preventing an immediate vote, Thune told us last week, involved the back and forth over Rosenworcel's answering the written questions for the record that some committee members gave her after the October hearing. GOP staffers recently unveiled Rosenworcel’s responses to committee Republicans.

Thune pressed Rosenworcel over the FCC investigation into four telecom companies’ special access tariffs when the agency has yet to finish analyzing all the special access data it collected. "Considering the FCC’s limited resources, how is it prudent for the FCC to launch full-scale investigations when it hasn’t even completed its own due diligence on the topic?” Thune asked. "And what happens now to the unfinished analysis of the previously collected data?” Rosenworcel believes “both the investigation and rulemaking are lawful under the Communications Act,” she said. “However, I recognize that it is important to harmonize our policies across proceedings, including those involving special access.”

Rosenworcel told Thune she would “welcome legislation to reinstitute regular oversight and authorization of the [FCC] by the Congress,” putting aside the FCC process overhaul debates associated with such reauthorization, as Thune put it. Thune’s FCC reauthorization draft was ready by midsummer but stalled amid negotiations with Democrats. Rosenworcel also affirmed to Sen. Dan Sullivan, R-Alaska, that she believes it would be her responsibility as a commissioner to “execute” any “legislative solution regarding the Open Internet Order” produced by the Commerce Committee. Staffers for Thune and committee ranking member Bill Nelson, D-Fla., have negotiated over such a net neutrality bill all year.

The Telephone Consumer Protection Act (TCPA) needs overhaul, Rosenworcel told Sen. Deb Fischer, R-Neb. “It would be helpful to take a fresh look at the way the TCPA treats wired and wireless calls differently,” Rosenworcel said. “This distinction may have made sense at the time of passage, but it no longer reflects the ways consumers and businesses use communications technology. In addition ... Congress could consider updating the Act’s definition of autodialer to account for changes in technology since the TCPA was enacted.”

“Several business owners in Nebraska” fear TCPA burdens and the “threat of class action lawsuits” since the FCC’s ruling this year, Fischer said. She said businesses fear the FCC expanded the definition of autodialer to encompass smartphones. That led Rosenworcel to reflect on Congress' updating the autodialer definition. Fischer also “heard from companies who are concerned that, under the new rules, they could be subject to litigation if they attempt to contact a consumer whose phone number has been changed,” she told Rosenworcel. “One company, for example, sent text messages to an employee, who never informed the company that the employee’s phone number had changed. The company did not find out about the change until it was brought to court.”

Sen. Jerry Moran, R-Kan., wanted “more information about the commission’s plans for allowing incumbent rate-of-return carriers to dispute their designation as a 100% overlap area.” Rosenworcel provided several paragraphs’ worth of history involving the agency’s USF process and said she believes the current setup provides “a fair opportunity for rate-of-return carriers to challenge the determination that they are in fact subject to 100 percent competitive overlap, but the agency should always remain open to ideas to improve its procedures.” Moran also wondered about the strength of a “mere claim of service capability” versus “physical measurements showing signal strength at specific household locations” in terms of persuasiveness. “More information, including concrete and verifiable evidence, is always preferable to assist the Commission in assessing whether service is being provided to a given location,” Rosenworcel replied.

Sullivan also raised USF issues as a concern and lauded Rosenworcel’s commitment to Alaska’s broadband challenges. “You have come not only in the summer, but also in the winter, which tells us a lot about your character and commitment,” Sullivan told her. "Our rate-of-return and wireless carriers have worked together to put forward a plan that would stabilize funding for our rate-of-return carriers, providing them the certainty they need to invest in their networks. Will you continue to work with my office and our delegation to put this plan to work as soon as possible, and no later than Commission action addressing the national rate-of-return carrier program?” It’s “important for us to account for Alaska’s unique traits and consider the merits of the plan put forward by the majority of Alaska carriers” as the FCC “contemplates high-cost universal service reform for rate-of-return carriers,” she said, committing to work with Sullivan’s office. FCC Chairman Tom Wheeler has committed to Thune to address stand-alone broadband by year’s end.

Committee Democrats didn’t post their written questions or Rosenworcel’s answers. Nelson didn’t have any questions for the record beyond what he asked during the hearing, his committee spokesman said. Nelson repeatedly has advocated for advancing Rosenworcel’s renomination without delay.