Senate Confirms Two FCC Nominees, Chairman Pai's Confirmation Waits

Submitted on August 4, 2017

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Jessica Rosenworcel and Brendan Carr are FCC commissioners. Chairman Pai's confirmation put on hold.

On August 3, 2017, the U.S. Senate confirmed the nominations of Jessica Rosenworcel and Brendan Carr to be members of the Federal Communications Commission. The commissioners join FCC Chairman Ajit Pai and Commissioners Mignon Clyburn and Michael O'Rielly to implement and enforce America’s communications law and regulations.

Rosenworcel and Carr were confirmed without debate -- sorta. The full Senate confirmed 63 presidential nominees by unanimous consent. But both Rosenworcel and Carr faced a bit of drama. And Chairman Pai -- who President Donald Trump has nominated for a new, five-year term -- will have to wait on his confirmation.

Background

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. For re-nominations of current commissioners, there’s a grace period, called a “holdover,” after a commissioner’s term expires, which ends when a replacement is confirmed, or at the end of the congressional session in the year following expiration of the commissioner's term, whichever comes first. [For more information on the process, you can explore this primer created by lawyers at Fletcher, Heald & Hildreth.]

Rosenworcel's Marathon Ends in a Sprint

Jessica Rosenworcel, you may recall, has been twisting in the wind since President Barack Obama re-nominated her for the FCC in May 2015. Republican Senators had initially promised to reconfirm her in exchange for approval of Republican Commissioner O'Rielly. He was confirmed by the Senate in October of 2013, but in the summer of 2016, Republicans backed away from their pledge. They backed away, they said, because 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. In retaliation for the broken promises, Democrats blocked any telecommunications legislation advanced by the Senate Commerce Committee. Rosenworcel had to step down from the FCC when the 114th Congress adjourned.

In a surprise move, President Barack Obama sent Rosenworcel's nomination to the 115th Congress in January. But the nomination was never moved forward. Chairman Wheeler stepped down after President Trump’s inauguration and President Trump tapped Ajit Pai to be FCC Chairman. On February 28, President Trump officially withdrew Rosenworcel’s nomination. But in June, President Trump announced his intent to nominate Rosenworcel to return to the FCC. (For background on the Rosenworcel renomination, see: Rosenworcel Renomination, Take 3)

The Carr Debate

Brendan Carr's nomination triggered a debate about whether to confirm the FCC's current general counsel for two consecutive terms. President Trump actually nominated Carr to complete the Wheeler term scheduled to end in June 2018 and a full five-year term beginning July 2018. (For more on Brendan Carr's nomination, see: FCC: Brendan Carr, You Complete Me)

Democratic senators fear the possibility that the FCC might face a political imbalance at the end of 2018, when current Commissioner Mignon Clyburn must leave office if she has not been renominated and reconfirmed. That scenario would result in an FCC of three Republicans and just one Democrat. President Trump and Republican senators wanted Carr to be confirmed for both terms now which is highly unusual. At the August 2nd hearing, Democrats voted for Carr to fill the first term, but they opposed giving him another term at this time.

Sen. Ed Markey (D-MA) articulated the Democrats’ concerns. “We’re awaiting [Clyburn’s] decision about whether she will continue or if there will be a vacancy.” Pointing to committee tradition to pair Democratic and Republican nominations, Markey added, "There should be a proper pairing. We're asking that the committee accepts our good faith that we are allowing Mr. Carr to bring the commission to full strength."

But Chairman Thune said that there is precedent for an FCC nominee being confirmed for the remainder of one term and another at the same time. He pointed to Gloria Tristani(1), nominated by President Bill Clinton in 1997 and confirmed by the Senate later that year for a nine-month term followed by a full term. However, at the time of her nomination, Tristani was a commissioner on the New Mexico State Corporation, an elected position, with a three-year public voting record. The FCC seat will be Carr's first public office after serving as staff for Commissioner Pai for three years.

"I would like to talk to him again after some time on the FCC." -- Sen. Maria Cantwell on Brendan Carr's nomination for a second term

“There might be precedent, but clearly there is no precedent for a second term being this long, in which you would throw the entire balance of the FCC out of whack,” said Committee Ranking Member Bill Nelson (D-FL).

Sen. Maria Cantwell (D-WA) said she opposed the simultaneous term approvals, voicing concern that Carr “will just parrot" Pai's stances and "not be an independent voice."

Some of the concerns Democrats have over Carr can be traced back to his testimony at his confirmation hearing in July. Issues like network neutrality, E-rate, and Carr’s close alignment with Chairman Pai were all raised at the hearing, and have not been sufficiently answered. Furthermore, as New Network Institute Executive Director Bruce Kushnick noted, Carr omitted from his testimony critical facts regarding his previous work with AT&T, Verizon, and others. (For more on issues raised during Carr’s testimony, see: Independence, Net Neutrality, and E-rate are Thorny Issues at FCC Confirmation Hearing.)

Although the Senate Commerce Committee advanced the Rosenworcel and Carr nominations to the Senate floor, the voice vote on Carr's second term was split along party lines. The full Senate only approved his first, partial term. Rosenworcel's term runs to June 30, 2020.

Pai's Turn to Wait

The committee approved Chairman Pai’s nomination to continue to serve as commissioner and chairman through June 2021. However, Pai’s nomination was opposed by a handful of Democratic senators on the committee. That opposition was enough to prevent confirmation by unanimous consent on the Senate floor, so Majority Leader Mitch McConnell (R-KY) choose not to include Pai in the confirmation package.

Officially, Chairman Pai's term as commissioner ended June 30, 2016. If the Senate does not confirm him by the end of 2017, he, like Commissioner Rosenworcel last year, will have to step down. Politico reports that the Senate will take a recorded vote on Pai when it returns in the fall, "providing Democrats the opportunity to demonstrate their opposition, given the moves he's taken on issues like net neutrality."

Your New FCC

With this week's confirmations, here's the current makeup of the FCC:

Chairman Ajit Pai, Republican. Term officially expired June 30, 2016. Holdover ends December 2017.
Commissioner Mignon Clyburn, Democrat. Term officially expired June 30, 2017. Holdover ends December 2018.
Commissioner Michael O'Rielly, Republican. Term expires June 30, 2019.
Commissioner Jessica Rosenworcel, Democrat. Term expires June 30, 2020.
Commissioner Brendan Carr, Republican. Term expires on June 30, 2018.

Legislation Moves, Too

Senate action on the FCC nominations – especially that of Jessica Rosenworcel – opened the logjam on telecommunications bills as well. On August 3, The Senate also passed these technology and telecommunications bills:

Making Opportunities for Broadband Investment and Limiting Excessive and Needless Obstacles to Wireless Act (MOBILE NOW Act) (S. 19): Legislation to increase spectrum availability for next-generation gigabit wireless services and foster broadband deployment. [Sponsors: Sens. John Thune (R-SD), Bill Nelson (D-FL)]
Improving Rural Call Quality and Reliability Act of 2017 (S. 96): Legislation to require the FCC to establish quality and reliability standards for rural phone networks. [Sponsors: Sens. Amy Klobuchar (D-MN), John Thune (R-SD), Jon Tester (D-MT)]
Kari’s Law Act of 2017 (S. 123): Legislation initiated after the murder of Kari Hunt in a hotel in Marshall, Texas, when Hunt’s daughter tried to call 911 but was unsuccessful due to a required “9” prefix on the hotel phone. This legislation bans the requirement of a prefix when dialing 911 for assistance. [Sponsors: Sens. Amy Klobuchar (D-MN), Deb Fischer (R-NE), Brian Schatz (D-Hawaii), John Cornyn (R-TX), John Thune (R-SD), Ted Cruz (R-TX)]
Spoofing Prevention Act of 2017 (S. 134): Legislation to stop the transmission of misleading or inaccurate caller ID information, including such calls and text messages originating overseas. [Sponsors: Sens. Bill Nelson (D-FL), Deb Fischer (R-NE), Amy Klobuchar (D-MN), Roy Blunt (R-MO)]
Federal Communications Commission Consolidated Reporting Act of 2017 (S. 174): Legislation to require the FCC to condense duplicative reports on competition in the telecommunications market into one comprehensive report released every two years. [Sponsors: Sens. Dean Heller (R-NV), Brian Schatz (D-Hawaii)]
Developing Innovation and Growing the Internet of Things Act (DIGIT Act) (S. 88): Legislation to bring together private sector and government entities to assess the needs of the Internet of Things (IoT) and study the readiness of government to support the IoT. [Sponsors: Sens. Deb Fischer (R-NE), Cory Booker (D-NJ), Cory Gardner (R-CO), Brian Schatz (D-Hawaii)]

These bills now go to the House for consideration there.

Notes: