Democrats Seize on Linking Pai to Trump Media Comments, Seek Confirmation Hearing

“First of all, we need another hearing" devoted to confirmation, Senate Commerce Committee ranking member Bill Nelson, D-Fla., said in an interview. Last week’s oversight hearing was “of course not” sufficient, Nelson said. “That was about the FCC.”

Commerce Committee Chairman John Thune, R-S.D., suggested it could count as a reconfirmation hearing (see 1703080044). “We had a pretty thorough hearing” and “went at it for about three hours,” Thune told reporters Tuesday. “I’m not sure we’re going to plow any new ground. Democrats submitted a lot of questions for the record after that hearing, too. But we’ll discuss it.” A committee spokesman affirmed Wednesday that no decision was made.

During the hearing, Sens. Tom Udall, D-N.M., and Maggie Hassan, D-N.H., pressed Pai on Trump’s media rhetoric but Pai refused to address the language, saying he didn’t want to wade into political matters. He said he's committed to the First Amendment and mentioned his past efforts, such as with his opposition to the agency’s critical information needs study and what he saw as interference in newsrooms. A Pai spokesman doubled down on that commitment to the First Amendment after the follow-up letter, which tied Pai's answers to his reconfirmation process (see 1703100066). The FCC didn't comment Wednesday.

“I think Ajit answered that question well,” Sen. Jerry Moran, R-Kan., told us. “He’s not a spokesman for the administration, he’s a commissioner for the FCC. He’s made his point clear for a long time about the freedom of speech.”

That question “doesn’t have much to do with his job of overseeing communications policy,” argued Senate Communications Subcommittee Chairman Roger Wicker, R-Miss. “It’s not something I’m worried about.” He sees the inquiry as “more of a political question.”

Wicker and Moran said they see no need for an additional confirmation hearing. “I think we all know Ajit Pai pretty well,” Wicker said. Moran agreed: “I can’t see any reason why.”

Complete Punt?

Pai “punted completely -- very disappointing answer,” Udall said in an interview. “I was very disappointed that he didn’t respond in some way about the freedom of the press issues, labeling the press an enemy. He doesn’t need to use the exact same terms that President Trump used but he could use other terms.” Pai “should lay in” and “step in on” this issue given his role as a “main regulator” in the media space, Udall said. On the Senate floor Wednesday, he lamented Trump’s language about the media, sitting judges and intelligence agencies.

The FCC has general authority to ensure media licensees operate in the public interest, and exercises that oversight when broadcast, cable and satellite-TV/radio licenses are renewed or transferred in mergers and acquisitions. Trump raised eyebrows when as a candidate he said AT&T buying Time Warner should be blocked, but Pai suggested the commission wouldn’t review the deal as currently structured because it lacks license transfers. The FCC also has media ownership restrictions affecting broadcasters, cable companies and even newspapers, which industry and Republicans have called outdated and said should be eliminated or relaxed. The commission has limited authority to oversee media content and related practices, with broadcast indecency, children’s TV, and political advertising disclosure and candidate equal-time regulation among exceptions. The agency used to have a fairness doctrine requiring broadcasters to offer different viewpoints on controversial issues, but it stopped enforcing that doctrine in the late 1980s -- which is credited with sparking the rise of talk radio -- and removed the regulations from its books in 2011.

“Pai knows what his role is at the FCC and he has [shown] to be a very sincere and capable public servant who clearly has views but understands his role and will act appropriately as chair of the FCC,” American Cable Association President Matt Polka said when asked about the Democrats' letter.

“I understand what the commissioner is trying to do here, but there’s really no reason that you shouldn’t be able to issue something more unequivocal,” said Sen. Brian Schatz, D-Hawaii, ranking member of the Communications Subcommittee. “I have a hard time imagining that would get him in trouble with his boss. But if it did, that would be even more reason for him to lay down a marker that it is not the job of the FCC commissioner to interfere on a partisan or political basis. I know where his principles are but until he says the words, there is a cloud.” Schatz sees the question as “a pretty simple ask,” he said. “I think he doesn’t want to contradict the president, but this is a quasi-judicial body and it has to maintain its independence.”

Pai's Record

Industry officials question whether Trump’s rhetoric should provoke fear, and some Republicans lauded Pai’s First Amendment credentials and reluctance to opine. Some officials said the Democrats' letter was all about “politics” and an attempt to trap Pai into disagreeing with Trump. A broadcast official doubted it would be successful, even though the official doesn’t believe Pai sees the media as the “enemy” of the people. A cable official said there's no evidence to suggest Pai was anti-media.

“Ajit's record of ardently defending the First Amendment is second to none,” emailed former Commissioner Robert McDowell, now a Cooley attorney. “His statements, votes, testimony and speeches over the past five years should make this obvious. His extraordinarily strong and steadfast support of free speech and freedom of the press was one reason why the Media Institute awarded him its coveted Free Speech Award last October where I was honored to introduce him. His speech at that event should leave no questions."

“Chairman Pai is correctly staying focused on issues important to media financial viability, including a review of ownership rules,” emailed ex-NAB chief David Rehr, a senior associate dean at George Mason University. “To seek his reaction to any specific comment about the media, whether is it made by the President, a prominent Democratic Senator, or frankly anyone else offering their opinion on a media outlet, reporter(s), or journalists’ political slant, is frankly silly and diminishes the important role of the Chairman and members of the FCC. We have spent too much time on political gamesmanship in Washington. Pai should stay focused on real issues confronting the viability of the media today. His demonstrated strong support for the 1st Amendment without a doubt already answers these types of questions.”

Trump “has a right to be a jerk just like anybody else,” Hubbard Broadcasting CEO Stanley Hubbard said Tuesday during the Radio Television Digital News Foundation First Amendment Awards dinner, dismissing worry and negativity about the president’s stances. “He can say things that are not well thought out and sound pretty stupid and that’s his right of free speech. And you know something, folks? I don’t think you have to worry one second about the First Amendment.” Neither Trump nor others can “take that away,” he said, referring to “that most important amendment."

Pressure on Pai

Pai should remove any doubts about this, public interest officials advised.

Ex-Commissioner Michael Copps believes the senators expect a direct response to their question about whether the media is the enemy of the people. “My advice to Ajit would be to just say, ‘No.’ This is not an issue where he can afford to be less than 100 percent clear,” said Copps, special adviser to Common Cause. “I think it ties into a slew of small-d democratic issues, including the effects of media ownership on journalism. Clarity on one’s belief in the press being an integral part of the American democratic system and informing voters so they can make intelligent decisions is central to our system.”

“He certainly ought to answer it directly -- it’s a straightforward question and any equivocation will undermine public confidence in the work of the FCC and his own intentions,” agreed Andrew Schwartzman, senior counsel at the Georgetown Law Institute for Public Representation. “If one is concerned that ‘the media’ may not be operating in the interests of the American public, a view that I do not share, one should be especially concerned about excessive concentration of control of those outlets. A diverse media is better for democracy.”

Benton Foundation Executive Director Adrianne Furniss urged Pai to address Trump’s comment and their recent meeting. “Despite his promise to be transparent, Chairman Pai has been anything but in regards to his meeting with the President,” she wrote. “Sadly, the one thing we can be certain about is that Chairman Pai did not take the opportunity to speak truth to power and tell the President that a free and independent media is not the enemy of the people.” She's also "troubled" about Pai's silence before Senate Commerce on his March 6 meeting with Trump and cited the Electronic Privacy Information Center’s Freedom of Information Act request to the FCC on the meeting's details (see 1703130020). “As the nation's lead communications regulator, it is imperative Chairman Pai affirm his commitment to free speech and freedom of the press and publicly post his answers to the senators this week,” Furniss added. “He should also address EPIC's request and release any information related to the March meeting with President Trump.”