Nelson Backs Rosenworcel Renomination in 2017, After Her Exit

Her reconfirmation was the subject of partisan leadership battles for the past year. Senate Minority Leader Harry Reid, D-Nev., cited a deal with Majority Leader Mitch McConnell, R-Ky., from last Congress that he said should have guaranteed Rosenworcel's advance. GOP holds prevented her easy approval, and Reid and McConnell failed to reach a deal in the past two weeks. FCC Chairman Tom Wheeler committed to Reid last week that he would resign immediately if it ensured Rosenworcel’s confirmation. It's unknown when he may leave now. His term runs until June 30, 2018.

“It is deeply disappointing that the Senate did not reconfirm FCC Commissioner Jessica Rosenworcel before adjourning," said Nelson. "As I said many times, Republicans made a commitment to move swiftly on her confirmation -- a commitment that sadly and regretfully was not honored. Commissioner Rosenworcel is an outstanding public servant, whose commitment to the public interest and to American consumers is beyond reproach. She has served the agency -- and indeed the nation -- with distinction, and not surprisingly established herself as a reasoned, thoughtful and bipartisan regulator.”

“I’m disappointed that Leader McConnell didn't keep his commitment to Democratic Leader Reid to reconfirm" Rosenworcel, said Sen. Tom Udall, D-N.M., a member of Commerce. “I hope we can remedy that early in the next year. As FCC Commissioner, Rosenworcel has advanced smart telecommunications policies to benefit the public interest and public interest. I especially appreciate her support for net neutrality and her advocacy for closing the 'homework gap.'"

Senate Democrats are seen as having influence over Democratic FCC commissioner spots, with Nelson and incoming Senate Minority Leader Chuck Schumer, D-N.Y., holding particular influence. Schumer was personally familiar with Rosenworcel’s renomination and showed frustration over what he judged a past broken deal. Rosenworcel is a former Senate Commerce staffer, and one of her own former FCC aides, Clint Odom, works for Nelson at Senate Commerce now. Schumer’s office didn’t comment Monday, nor did the transition team for President-elect Donald Trump or Rosenworcel’s office.

“It's hard to say what the dealmaking over FCC seats will look like, especially under Trump,” said Cowen and Co. analyst Paul Gallant. “The last month suggests we should question traditional assumptions about everything, including how FCC seats are filled. But Commissioner Rosenworcel has a deep well of Senate support, so I think she is very well-positioned if she wants it."

'Broken Promises'

“Broken promises and partisanship prevented Commissioner Rosenworcel from being renominated for a second term at the FCC,” Senate Communications Subcommittee ranking member Brian Schatz, D-Hawaii, said in a statement Monday. “At a time when we should be supporting more women leaders in politics as well as in the telecommunications and technology industries more specifically, we have failed.” He said her commitment was without dispute and pointed to her work on public safety communications and as an advocate for children’s needs and spectrum policy: “Her work on the ‘Homework Gap’ has helped all of us to think differently about connectivity and the need to ensure that children have access to the tools they need to succeed at school in the digital age. Commissioner Rosenworcel also proposed many innovative spectrum policy ideas to address the growing demand for wireless broadband and has helped frame the FCC’s work to promote 5G wireless services going forward.”

A spokesman for Commerce Committee Chairman John Thune, R-S.D., declined comment Monday on the lack of a vote and the possibility of a Rosenworcel renomination in 2017. Thune backed one for the past year and cleared her renomination unanimously a year ago. The recent negotiations between McConnell and Reid also involved the reconfirmation of Commissioner Ajit Pai, whose term expired this summer and who will require renomination and reconfirmation next year. Thune told us last week he hopes to promptly process Pai next year if the Trump administration renominates him. It’s possible the Pai and Rosenworcel nominations could be paired in 2017. The next FCC term to expire will be that of Commissioner Mignon Clyburn June 30.

“What happened in the Senate does damage to the workings of the Senate, period," said Gregg Rothschild, managing director of The Glover Park Group and a former congressional Democratic staffer. "And it’s too bad that Jessica, who is an extremely talented individual, got caught up in that.”

“Anything is possible at this point," said New America Open Technology Institute policy counsel Josh Stager. "The key question is whether Rosenworcel is actually interested, and whether she wants to go through it all again. Republicans agreed to confirm her so many times already -- it's like Lucy and Charlie Brown with the football. Nominees can't live with that kind of uncertainty; they're real people with real families to support and real careers to maintain. It can be very difficult to recruit top talent to government service in that kind of environment.”

American Commitment called the lack of reconfirmation a victory. The group was “warned Rosenworcel’s confirmation was a ‘done deal’ and could not be stopped” but “flooded Capitol Hill with over 17,900 letters in a little over one week which led to significant backlash against this scheme,” it said in a blog post Monday. “When the dust settled, our efforts played a critical role in blocking Jessica Rosenworcel’s confirmation and ensuring that Democrats will no longer control the FCC in 2017!”

“Republicans would like to take control of the FCC with a 2-1 majority as soon as the new president is sworn in and Chairman Wheeler steps down,” said Richard Bennett, free-market blogger and network architect. “I expect they’ll get their way.” The new Republican nominee would be paired with a Democrat, possibly Rosenworcel, to get back to a five-member commission while maintaining the Republican majority, Bennett said.

Since Pai and Commissioner Mike O’Rielly have "spent the last several years lamenting the ‘hyper-partisan’ division at the commission, it would be a needlessly and profoundly aggressive for whichever of the two of them is interim to try to ram through a bunch of 2-1 items,” emailed Harold Feld, senior vice president at Public Knowledge. "It also risks angering whoever the incoming Chair will be. Even if the incoming Chair shares the same agenda, the incoming Chair will not want his or her hands tied by actions by the interim Chair.”

The new leader will have to start by bringing in key staff to help run the agency, Feld said. “The radical right looking to metaphorically burn Wheeler's FCC to the ground and plow the field with salt don't generally understand the mechanics of actually getting an item written and circulated, let alone how difficult it is to actually manage a federal agency so that the day-to-day business gets done.”

Wheeler Plans Murky

If Rosenworcel had been reconfirmed (and Wheeler left), it would have created a 2-2 FCC split until the Senate confirmed a third Republican commissioner. Wheeler also could cause such a split, at least for some period of time, if he decides to continue as a minority commissioner after a Republican chairman takes over Jan. 20. Wheeler aides didn’t comment.

Morgan Lewis communications lawyer Andy Lipman said Wheeler “may want to maintain his optionality” for some time. If Wheeler does stay and create a 2-2 split, Lipman said he would expect Senate Republicans to “push up in queue the confirmation of a Republican commissioner to break the deadlock.”

But TechFreedom President Berin Szoka said he believed Wheeler would be “bluffing” if he threatened to stay under a GOP administration. “If Wheeler breaks with tradition by staying past Inauguration Day, he opens the door to Republican retaliation: not filling his seat when he finally does leave and, potentially, filling Clyburn's seat with a non-Republican of their own choosing as soon as July,” Szoka emailed. Feld said, "The radical right are already urging Trump to violate long-standing tradition by refusing to consult with the Democrats on the next Democratic commissioner.”

Lipman doubted the full commission would approve many high-profile items in its remaining weeks under Wheeler as chairman, given Republican demands the FCC not adopt “controversial” items. Decisions on the Globalstar spectrum proceeding and rate-of-return USF funding were two possibilities, he suggested. Commissioners are scheduled to address real-time text and emergency alert system items at their meeting Thursday. Lipman said any major decisions will have to be unanimous or “virtually” unanimous, but he said proceedings and routine actions can continue. “I think there’s a lot that’s going on beneath the surface in processing licenses and comments, and merger reviews will continue,” he said. “It’s like a duck: on the surface, it looks placid, while below the surface there’s a lot of motion.” CCMI telecom consultant Andrew Regitsky said he could see possible further FCC staff actions on AT&T and Verizon zero rated services. He said any declaration of unlawfulnesss would be "quickly reversed" under the Republicans.