Rosenworcel Renomination, Take 3 (updated)

Rosenworcel Renomination, Take 3

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Robbie's Round-Up for the Week of June 12-16, 2017

Jessica Rosenworcel has been nominated for a new term to be a commissioner at the Federal Communications Commission...take 3. On June 13, President Donald Trump announced his intent to nominate Rosenworcel to return to the FCC. She served on the Commission from 2012-2017, leaving because the Senate failed to bring her renomination to a vote, due to larger political battles. Democrat Rosenworcel’s confirmation will likely be paired with a nomination of a Republican by President Trump, subsequently filling all seats on the Commission. Below we unpack the long trip it has been to get to Rosenworcel’s (third) renomination and what it will mean for the FCC -- and some pending legislation -- going forward.

Background

Rosenworcel has a long history working on communications policy, holding various positions on Capitol Hill and at the FCC. She worked at the Federal Communications Commission from 1999 to 2007, serving as Legal Advisor and then Senior Legal Advisor to Commissioner Michael J. Copps (2003-2007). She was the Senior Communications Counsel for the Senate Commerce Committee, under the leadership of Sen Daniel K. Inouye (D-HI) from 2007 to 2008 and then Sen Jay Rockefeller IV (D-WV) from 2009 to 2011. Rosenworcel was nominated for the FCC by President Obama in May 2012 and was swiftly confirmed by the Senate.

Rosenworcel has been a forceful, public advocate for FCC policies and programs that seek to close the “Homework Gap” as she calls it — the broad disparities in broadband internet service that make it difficult for students, particularly in rural areas, to do their schoolwork. Notably, Rosenworcel supported the FCC’ 2015 Open Internet decision, meaning the FCC could soon have another supporter of true net neutrality.

The Long and Winding Road to Rosenworcel’s Renomination

The battle over Rosenworcel’s renomination has lasted well over a year, ensnarled in Washington’s political gridlock. Her first five-year term expired in May 2016. Republican Senators had initially promised to reconfirm her in exchange for approval of Republican FCC Commissioner Mike O'Rielly. O’Rielly was confirmed by the Senate in October of 2013. But in the summer of 2016, Republicans backed away from that pledge, because, they said, then-FCC Chairman Tom Wheeler refused to clearly state his intent to step down under a Republican presidency, as is customary in a new administration. Essentially, Republican Senators held the ambiguity as a bargaining chip over Rosenworcel. Wheeler refused to make his intentions clear in the months leading up to the 2016 election, and the GOP used that as an excuse to hold up Rosenworcel's reconfirmation.

After the 2016 election, in December of 2016, Wheeler announced that he was willing to step down immediately if the Senate reconfirmed Rosenworcel to another five-year term. But Senate Republicans still refused to vote on Rosenworcel.

On January 4, 2017, in a surprise move, President Barack Obama sent Rosenworcel's nomination to the new Congress. But the nomination was never moved forward. Chairman Wheeler stepped down after President Trump’s inauguration, with President Trump naming Ajit Pai as FCC Chairman. On February 28, President Trump officially withdrew Rosenworcel’s nomination that Obama had made just weeks before.

At the time, Todd O'Boyle, Program Director for Common Cause’s Media and Democracy Reform Initiative, said, "Senate inaction and political gamesmanship should never have cost Commissioner Rosenworcel her seat at the FCC. She's fought in the trenches to enshrine historic open internet protections, to improve connectivity for schools and libraries, and to close the homework gap for low-income households. The Senate's failure to vote on her reconfirmation represents a stunning loss for the public interest."

With this week’s renomination, Andrew Schwartzman, the Benton Senior Counselor at the Public Interest Communications Law Project at Georgetown University Law Center's Institute for Public Representation, said, “This appointment rights a wrong because she deserved confirmation last year and should have been sitting on the commission all along. I look forward to her zealous advocacy for universal broadband deployment, especially for younger Americans.”

“Hallelujah, better late than never,” said Senate Commerce Committee Ranking Member Ben Nelson (D-FL). “The Senate should now move quickly to confirm her and fulfill the promise that was made two years ago.” You can read many more reactions here.

Where That Leaves the FCC

As an independent agency, the FCC is overseen by Congress (not the President), and the five commissioners are appointed for fixed, but staggered. five-year terms. The President appoints all of the commissioners but he/she can only appoint three from the same party. The other two must be from another party and, since the Clinton administration, Congressional leaders have generally picked candidates for FCC commissioners. All appointments must be approved by the Senate. The FCC requires a minimum of three (a quorum) to function. [For more information on the process, you can explore this primercreated by lawyers at Fletcher, Heald & Hildreth.]

As it stands, the five-member FCC now has two Republicans, Chairman Pai and Commissioner O’Riellly, and one Democrat, Mignon Clyburn. FCC nominations usually move through the Senate in bipartisan pairs. Rosenworcel’s nomination is expected to be paired with the renomination of Pai, whose five-year term expires later this year. But President Trump may put forth another Republican name soon, bringing the FCC to full strength.

There have been rumors that President Trump plans to soon nominate Brendan Carr, the current general counsel at the FCC and a former aide to Chairman Pai. Before arriving at the FCC as an attorney in 2012, Carr worked as a lawyer at the D.C. law firm Wiley Rein and represented telecommunication companies like AT&T and Verizon, and two trade associations, USTelecom and the wireless-focused lobbying group, CTIA. These associations may stir up consumer advocacy organizations, as similar ties to the telecom industry previously haunted Pai, who represented Verizon at a D.C. law firm before he joined the FCC.

Rosenworcel Nomination and Telecommunications Legislation

In return for Republicans’ failure to make good on the promise to reconfirm Rosenworcel, Senate Democrats have blocked the GOP’s telecommunications legislative agenda. Senate Commerce Chairman John Thune (R-SD) hopes the Rosenworcel nomination frees up several of his telecom bills on the Senate floor, including his MOBILE NOW spectrum measure (S 19). Thune and Senate Minority Leader Chuck Schumer (D-NY) have spoken about Democrats' concerns before, and Thune this week said that Democratic leadership should "let some of our bills go" once it "becomes clear that we're going to move her." Other bills that easily cleared Senate Commerce early in 2017, but have seen no floor action deal with dropped calls, emergency communications, and direct dialing for 911.

For all the news surrounding Rosenworcel’s nomination, be sure to follow along in Headlines.

Update: On June 15, President Trump officially sent the Rosenworcel nomination to the Senate indicating that it was a term of five years from July 1, 2015 to June 30, 2020.

Quick Bits

• Court strikes down FCC caps on in-state prison phone rates (The Hill)
• White House social-media director Dan Scavino violated Hatch Act with tweet targeting GOP congressman (Washington Post)
• COVFEFE Act would make social media a presidential record (The Hill)
• Senate Republicans crack down on press access (The Hill)
• Verizon Seals $4.5 Billion Yahoo Purchase as Mayer Heads Out (Bloomberg)

Weekend Reads
How Media Monopolies Are Undermining Democracy and Threatening Net Neutrality (Interview with Mark Lloyd)
Your Voice Is Needed in the Net Neutrality Fight (Sen Wyden (D-OR) Op-Ed)
When 'bots' outnumber humans, the public comment process is meaningless (The Hill Op-Ed)
In Watergate, One Set of Facts. In Trump Era, Take Your Pick. (New York Times)
There Is No Loophole in the Net Neutrality Rules (Public Knowledge)
Report reveals how easy it is to manipulate elections with fake news (The Guardian)

Events Calendar for June
June 20 -- The Universal Service Fund and Rural Broadband Investment, Senate Commerce Committee hearing
June 21 -- Net Neutrality and the Economy: How the FCC’s Rules Promote Investment, Create Jobs, and Protect Consumers, New America
June 21 -- Exploring Business Model Options for Broadband Deployment, NTIA
June 22 -- Federal Communications Commission Open Meeting

ICYMI from Benton
Benton Welcomes Rosenworcel Renomination, Adrianne Furniss
The BROWSER Act, Robbie McBeath