Deal Still Possible on Rosenworcel Reconfirmation, Potentially Wrapping in FERC, Pai Nominations
Senate leaders still may reach a deal to reconfirm FCC Commissioner Jessica Rosenworcel before the Democrat has to leave the agency at the end of this Congress, officials from Capitol Hill and industry told us Wednesday. Her reconfirmation has faced GOP holds for close to a year. Some industry lobbyists said the deal also may address the reconfirmation of Commissioner Ajit Pai. Congress is expected to adjourn as soon as next week.
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“I think there’s still the possibility of a deal coming together,” said Senate Commerce Committee Chairman John Thune, R-S.D., in an interview. “It’s got several moving parts that they’re kind of trying to lock in. The leader would probably be better equipped to answer that question because the discussions right now are happening at that level.”
The Rosenworcel stall has been a leadership fight for much of the year. Spokespeople for Senate Majority Leader Mitch McConnell, R-Ky., and Minority Leader Harry Reid, D-Nev., declined comment about a deal. Reid viewed the lack of Rosenworcel's reconfirmation as a breach of trust and retaliated by blocking bipartisan Senate Commerce legislation this year. Thune told reporters Tuesday he still hoped Rosenworcel and his stalled legislation -- including Mobile Now and the FCC Reauthorization Act -- could move this year, anticipating “more to say on that at a later time” (see 1611290059).
McConnell's office was calling GOP staffers to take the temperature about moving the Rosenworcel renomination, said a telecom industry lobbyist. Broadcast and media industry lobbyists said McConnell is hoping to advance a nominee for the Federal Energy Regulatory Commission, who's also part of a possible deal.
Lobbyists reported hearing of a cloture petition in the works on Rosenworcel, the FERC nominee and possibly Pai, a Republican seen as a possible acting or permanent chair of the FCC under President-elect Donald Trump. Pai’s term expired this summer, and President Barack Obama hasn't formally renominated Pai for another term. Although he wouldn't have to leave the commission soon, including him in a cloture petition would draw in officials from the Trump transition team, a broadcast industry lobbyist said. The Obama administration would have to renominate Pai if he were to be reconfirmed directly as part of this deal. The involvement of a cloture petition would mean Senate leaders fear they may need to hold a formal vote to break past any holds, the lobbyist said, stressing the amorphous nature of the developments given how much is in flux.
“If Ms. Rosenworcel is reconfirmed, the FCC would be split 2-2 for the roughly the first half of 2017,” said Cowen and Co. analyst Paul Gallant in a research note about a possible deal. “(We are assuming Senate Republicans would confirm Ms. Rosenworcel only if they have a commitment from Chairman [Tom] Wheeler to step down in January. Otherwise, her confirmation -- plus Mr. Wheeler staying on as a commissioner -- would actually leave Democrats with 3-2 control when President-elect Trump takes office on January 20th.)” The dynamic could delay the actions of a GOP FCC, Gallant said: “We believe the Trump FCC is likely to cut back on a variety of broadband regulations adopted during the Obama Administration. But starting out with a 2-2 split could delay those positive changes for ISPs until Trump's full slate of appointees is confirmed -- perhaps by summer 2017.” He predicted the split could affect the agency’s actions on net neutrality and ISP privacy rules but it would be unlikely to affect a possible review of AT&T buying Time Warner. Gallant said he thinks the FCC won't end up reviewing that $108.7 billion deal.
Thune confirmed Republicans would want a Wheeler commitment as part of any deal. “I think that would be involved,” he told us Wednesday.
Republicans have pressed all year for Wheeler to commit to stepping down at the end of the Obama administration, and Thune always attributed some of the GOP holds on Rosenworcel to this issue. Wheeler said he would cooperate with an incoming administration but declined to specify an exact departure timeline, including at a news conference after November’s commission meeting (see 1611170054). An FCC spokeswoman declined comment Wednesday on a Wheeler commitment and possible involvement in a deal.
One Republican Senate staffer still questioned the merits of reconfirming Rosenworcel now and wondered what a Republican Senate stood to gain. The staffer complained of the likely 2-2 split even in the event of a Wheeler commitment. The staffer pointed out that due to Reid’s past use of what was known as the nuclear option, the Republican Senate can advance all the nominees it wants next year without fear of filibuster. The staffer thought such a deal makes sense because a McConnell aide is apparently in line for the FERC position.