Senate Telecom Legislation Still Hitting Wall as July Arrives, Stirring Doubts

“We’re still working on that project,” Thune said of the Democratic holds on the Mobile Now hotline. “I don’t know that we’re currently making any headway but we’re still pursuing it. … We’re just trying to put our heads together to figure if there’s a way we can bust it loose. But at the moment, it’s still stalled.”

Mobile Now and the FCC Reauthorization Act are bipartisan measures that cleared the Commerce Committee March 3 and April 27, respectively, with unanimous voice votes and ranking member Bill Nelson, D-Fla., as co-sponsor. Thune kicked off a Mobile Now hotline May 11 and by early June, the office of Minority Leader Harry Reid, D-Nev., confirmed that Reid is among the sources of Democratic holds due to the GOP holds preventing the reconfirmation of Rosenworcel, a Democrat. Reid sees the advance of her reconfirmation as a critical part of a 2014 deal he made with Majority Leader Mitch McConnell, R-Ky., to reconfirm FCC Commissioner Mike O’Rielly, a Republican. McConnell and Reid spokespeople didn't comment last week. Nelson told us a day before the Mobile Now hotline process began that Democratic holds were likely on Mobile Now and the FCC Reauthorization Act due to the Rosenworcel concerns (see 1605100058).

“I think they just have to hold up their end of the bargain,” said Senate Communications Subcommittee ranking member Brian Schatz, D-Hawaii.

Staffers haven’t filed the FCC Reauthorization Act for hotline consideration, despite Thune’s initial hopes to do so by the end of May. Thune blamed delay on the lack of Congressional Budget Office scoring for the measure so far. Also at issue in that pending hotline is a much-debated spectrum amendment from Sen. Marco Rubio, R-Fla., that spurred some national security concerns from Nelson (see 1605050046). Rubio staffers were continuing to negotiate for a resolution but wouldn't obstruct any hotline process, an aide told us in June.

Tougher Odds

The bills’ prospects strike many as increasingly bleak, and if there’s any hope, many now believe it may be near year's end. The year’s tight legislative calendar, with recesses in half of July and all of August and October, wasn't seen in early May as fatal, assuming the Senate cleared the legislation soon (see 1605090046). The House lacks companion measures.

“In the short term, I guess you could say things look grim,” said Telecommunications Industry Association Senior Vice President James Reid, expressing little hope that anything will move before the long summer recess. “I suppose there’s always an outside shot.” Reid, a former Democratic Senate staffer, noted “the continuing inability of the Senate” to move even easier items at the moment, increasing the difficulty. He judged it “not impossible but you have to have some pretty motivated members to get this done.”

“I’m not very hopeful,” said Recon Analytics analyst Roger Entner. “It doesn’t look good. Nice try, we’ll try again next year.” Entner laments the reduced scope of Mobile Now, modified during extended negotiations. He sees the issues re-emerging in January and February of next Congress.

Multiple offices in the Senate and House are signaling an effective legislative close to the year, one wireless industry lobbyist said. A possible lame-duck session after the November election is the one opportunity for movement but hardly a guarantee, the lobbyist said. A tech industry lobbyist agreed a lame-duck session is the likeliest chance of clearing the measures. She hoped it was still possible, not relishing the possibility of starting all over next year in a new Congress and under a new White House. “You just have a lot of churn at the end of the year,” agreed Reid, pointing to the shifting dynamics based on committee leadership, Senate leadership and a new president-in-waiting. If the measures end up fatally stalled, "I think spectrum legislation remains a priority of the Hill" in 2017, he said. FCC reauthorization has been more of a Thune priority, however, Reid said: "I'm not sure it has the same level of interest and intensity on the Democratic side." Thune would lose his Commerce Committee chairmanship next Congress if Democrats win a Senate majority, widely seen as possible.

Thune said “it’s possible” that Democrats block other telecom measures beyond the two packages. “I hope that wouldn’t be true,” Thune told us. “If they wanted to, yeah, they could try and kind of use that as an excuse to disrupt anything we’re trying to get done. There’s a lot of stuff in the telecom space we really need to act on. And I think things on which there’s pretty broad bipartisan support, the FCC reauth and Mobile Now, there’s a bunch of stuff out there. … We’ve been trying to hotline, as you know, Mobile Now, so far unsuccessfully, but I think these things are all probably in some way interrelated. So we’ll see if any of that stuff frees up and whether or not the Democrats want to basically just block anything that deals with telecommunications issues over Rosenworcel. I hope not but hard to say.”

Rosenworcel Factor

Rosenworcel’s term expired last summer and unless the Senate acts, she would have to leave the FCC when Congress adjourns sine die. Part of the reason for the GOP holds is FCC Chairman Tom Wheeler’s lack of commitment to step down at the end of the Obama administration, Thune has frequently said, which Democrats say wasn't part of the 2014 deal.

Her renomination likely “will free up, but it’s probably, from a timing standpoint, it may not be as soon as the Democrats would like,” Thune told reporters last week. “But I just hope they don’t use that as an excuse to stop something that really is important to get done, and that’s start moving forward on the process of securing more spectrum.”

TIA’s Reid speculated it’s possible Rosenworcel moves in some “grand package of nominees,” as Thune suggested earlier. Reid couldn't remember any agency official ever having to make such a commitment to step down as is demanded of Wheeler and doubts he would make such a promise, though Reid acknowledged a broad belief Wheeler will step down as the administrations change. He called the Wheeler commitment demand “a red herring on the Republican side.” The tech lobbyist called Rosenworcel well-liked and respected and blamed the holdup on Wheeler, wondering why he didn’t commit. Entner suggested senators pair her renomination with that of FCC Commissioner Ajit Pai, a Republican whose term expired June 30.

House Communications Subcommittee Chairman Greg Walden, R-Ore., told us in early June he also believes Wheeler should make a commitment (see 1606080067) and will question him July 12 at an oversight hearing. Walden said he wants to act on Mobile Now and FCC reauthorization if the Senate can clear the measures. Many suspect the bills’ prospects may depend on how much Walden has ambitions to change them upon their possible eventual House consideration. “You’re not going to go into a formal conference on any of these bills,” Reid said. “There’s just not enough time.” He pointed to the need for informal bicameral conferencing, long seen as critical if there’s hope of moving the bills.

Thune said Democrats' tying the reconfirmation to Mobile Now isn't "constructive because it’s legislation that everyone agrees needs to get done,” saying he's unsure if it’s possible before the Senate leaves in mid-July. “I’d like to think that, yeah. I don’t know. It’s up to them. That’s going to be a call that Senator Reid makes. But the legislation itself is strong. And if we can get it over to the House, I think we could get action on it there. … I think the legislation speaks for itself. I think Commissioner Rosenworcel is for Mobile Now, in fact very much supportive of what we’re doing to fill the spectrum pipeline.”