O'Rielly, McSweeny Face Senate Commerce Committee

The Senate Commerce Committee held a hearing to consider the nominations of Michael O'Rielly to be a new commissioner of the Federal Communications Commission and Terrell McSweeny to be a commissioner at the Federal Trade Commission.

In his opening remarks Committee Chairman Jay Rockefeller (D-WV) noted O'Rielly’s 20 years of experience as a Congressional staffer. Chairman Rockefeller highlighted what he believes are the two most important proceedings before the FCC -- the voluntary incentive spectrum auction and the effort to update and strengthen the bi-partisan E-Rate program. Ranking Member John Thune (R-SD) said that both the FCC and the FTC need commissioners who “possess sound judgment so they can find the right balance between intervening in the marketplace to correct market failures and applying restraint from taking actions that could overburden industry, harm innovation and stifle economic growth.”

AdWeek’s Katy Bachman noted that the two nominees couldn’t be more different. Very simply, differences between the two can be easily summed up as hands off (O’Rielly) and hands on (McSweeny). O’Rielly looks at his upcoming role on the FCC as “an opportunity to eliminate burdensome regulation,” while McSweeny told committee members that the FTC “should proceed judiciously by using whatever tools it has to enforcing competition and protecting consumers.” The FCC’s upcoming spectrum auction in 2014 is a prime example. Coming from the Department of Justice’s antitrust division, McSweeny was significantly involved in the DOJ’s ex parte filing to the FCC that suggested the agency should develop rules to ensure that the big wireless companies don’t gobble up all the wireless spectrum at auction. The filing “was focused on flagging the competition concern and suggested the FCC should think about it,” said McSweeny. Sen Thune asked whether McSweeny or other DOJ staffers had reviewed previous FCC spectrum auctions to analyze what effect of bidding restrictions on participation and whether DOJ had found any positive correlation between the two. She said she had not done so, but that the comment was about competition "advocacy" not auction economics. "The comments focus is mainly on flagging potential impact on competitive dynamics of spectrum holdings. We do believe that spectrum is a key input in the wireless space, and the comment that the division wrote, which I was involved in drafting...was focused on flagging that competition concern and suggesting the FCC think about it in designing its mobile spectrum holdings rule." O’Rielly is opposed to the FCC setting any limits on which companies can bid. “When the [FCC] tried to micromanage, it’s problematic,” he said. “When they have done such actions, it has led to licensees flipping the licenses. I’m cautious to want to impose limits on bidding.”

Brendan Sasso notes in The Hill that Senate Democrats on the committee expressed concern that O’Rielly won't be willing to work across the aisle. Sen Mark Pryor (D-AR) asked O'Rielly to explain what he meant by ending his opening statement by declaring "stand strong for freedom" -- and whether he would be willing to work with Democrats on the FCC. O'Rielly insisted that he will work with the Democratic majority on a range of issues. "Typically communications policy is not overtly partisan," O'Rielly said. "There are a couple issues that do bleed in that space, but they're very few and far between in my experience." Chairman Rockefeller also bristled at O'Rielly's statement that he would take a "flexible and light-handed" approach to regulations. "Those are code words," Rockefeller said. But the committee chairman said he believes O'Rielly is well-qualified and that his confirmation is a "done deal."

During the hearing, O'Rielly pledged to enforce the FCC's TV indecency rules and said he believes the federal government should turn over more airwaves to the private sector. He also argued that the commission should quickly complete its review of media ownership rules.

Chairman Rockefeller said he intended to schedule votes in the committee on each nominee and would "push for quick consideration on the Senate floor." "These agencies do their strongest work for the American people when all commissioners are on board." Ranking member Thune (R-SD) said he hoped for a “full slate of commissioners by the time Congress breaks for the recess currently scheduled for mid-October.”