Obama finally Nominates Rosenworcel and Pai: Can They Get Confirmed Before The FCC Drops to 3?

The White House finally confirmed what everyone in the D.C. telecom world has expected for months. Obama officially nominated Jessica Rosenworcel to replace outgoing FCC Democratic Commissioner Michael Copps, whose term expires when Congress adjourns, and Ajit Pai to replace Republican Commissioner Meredith Baker, who stepped down last March. Both have considerable experience at the FCC, giving them understanding of how the agency functions in a very nuts and bolts kind of way. Both have broad experience with a range of communications issues, and no particular ties for/against any particular industry sector or company.

In short, both are “workhorse wonks,” with a proven track record of digging in on the complex issues that make this sector such a joy for those of us who like wonkiness and tough questions and such an eye-glazing, mind-numbing experience for those who don’t. While no one can say with any certainty what happens in this crazy and poisonous partisan environment, which every day comes more closely to resemble the delightful fable of the turtle and the scorpion crossing the river, their nominations should raise little controversy. Hopefully, the Senate will confirm both before the end of the year, when the FCC will otherwise drop down to 3 Commissioners.

For those unfamiliar with how this works, or with the candidates themselves, I provide a primer below.

How The Process Works.

The FCC consists of 5 Commissioners who sit for staggered five year terms, no more than three come from any one political party. Right now, the Commission has two vacancies because Copps term expired awhile ago (he can stay until Congress adjourns) and Baker left in March. Happily, it creates the opportunity to do a pair, one R one D, which helps grease things.

How Do Folks Get Nominated.

By law, the President nominates Commissioners and the Senate confirms (or doesn’t). In theory, the President can pick whoever he wants. As a practical matter, over the last 15 or so years, it has become customary for the President to select the Chairman, House Rs to select one R Commissioner, House Ds to select one D Commissioner, Senate Rs to select one R Commissioner, and Senate Ds to select on D Commissioner. Rosenworcel and Pai are both Senate picks.

Step 2: Confirmation hearing.

Both candidates will need a confirmation hearing (although they will probably share the same single hearing) by the Senate Commerce Committee, which has jurisdiction over Telecom and the FCC. That’s likely to happen fairly quickly. After all, these are the Senate picks, everyone has known for some time that these two were the most likely candidates, so there is no reason to delay. As an added bonus, it is Chairman Rockefeller, Rosenworcel’s boss, who gets to set the hearing schedule.

As it happens, Republicans have every incentive to go along with a quick process because they gain nothing from delay. The FCC will be 2-1 D v. R when Copps is forced to leave, so the Ds can still outvote McDowell if they have a partisan split. So there is no a priori reason to slow things down, at least not at the hearing stage.

What to Expect At The Confirmation Hearing.

Hearings like this (as opposed to hearings on more controversial nominees or more important offices) tend to be low-drama and poorly attended affairs. The key thing that happens is that members with particular issues or concerns get to go on record with their issues and can try to press the nominees to commit to something, or at least get a position on record. The nominees, of course, know how the game is played and will state very general answers that don’t commit to anything but try to give some basic support to their overall groups or constituencies.

It’s pretty much a given that a couple of Republicans will make some speeches about how evil regulation is generally and net neutrality is in particular, and that they will aim their pointed questions at Rosenworcel to foreswear the awful activist policies of her predecessor Michael Copps, disavow the “job killing” and “command and control” network neutrality regulations, and swear allegiance to “cost/benefit analysis” (which is the new code for ‘don’t regulate anything that incumbents say they don’t want’). Rosenworcel will no doubt respond that “like everyone” she believes in the “importance of an open internet” and also recognizes “the importance of light-touch regulation/finding the proper balance between protecting consumers and encouraging investment.” She will almost invariably duck any specific questions about network neutrality or AT&T by saying she can’t comment on pending matters/matters in litigation. Meanwhile, friendly Democrats will ask softball questions about working to protect the public interest, consumers, and innovation at the edge while making sure we have the bestest broadband in the world.

It’s also pretty much a given that some Democrats will have some speeches about media concentration, consolidation in the wireless industry, how rural deployment of wireless and broadband totally sucks, and how Consumers are suffering from high prices and poor service in various telecom industries as a result of consolidation/the Bush era deregulation. They will press Pai to commit to policies that expand broadband and protect consumers, as well as prevent further media consolidation. Pai will invariably respond that “like everyone” he wants to see affordable gigabit broadband everywhere because that’s what we need to keep America competitive, but that government is generally “bad at picking winners and losers” and that policies must therefore be “market based/market oriented.” While singing paeans of praise to competition, Pai is also likely to warn against the “unintended consequences” of regulation but assure everyone that the Commission must be “vigilant” to be sure that consumers benefit from our uber-awesome vibrant and competitive communications market. Pai will also decline to answer specific questions about AT&T, and will repeat the party line that net neutrality was unduly burdensome, a terrible mistake, and that the FCC will probably lose in court. Meanwhile, Rs will toss a few softballs about how are market-based policies have worked so well.

What to look for: The more technical and wonky the question, the more likely we are to see the nominees answer more substantively in a general way about their priorities and philosophy. It will also be interesting to see what Senators care about specific issues. Odds are good there will be a bunch of spectrum questions.

The real question is whether anyone will ask about broadcast or other “old media” issues. These issues are likely to get even less attention than they do now once Copps leaves. So it will be interesting to see whether anyone on the Committee exhorts the nominees to focus on these issues as well as the telecom stuff or if things like media ownership have dropped below the Congressional priority threshold.

Step 3 Floor Vote.

While it is likely that the nominations will move quickly through the Committee, getting fast confirmation by the full Senate is a lot more uncertain. Even at the best of times, juggling everything to get floor time for a vote can be problematic. With the Senate likely to be consumed with SuperCommittee fall out (whether or not they reach an agreement) and other end of the year nonsense, it will be a real challenge for Senate Majority leader Harry Reid to squeeze it in.

Another problem is that it has become fashionable among individual Senators trying to make statements about things or draw attention to this or that pet issue to place holds on nomination votes or to refuse unanimous consent to move something through quickly without the usual procedural roadblocks. With partisan tension likely to be high for entirely unrelated reasons, there is also the danger of some Republican deciding “no Obama nominees get through – so there!” All it takes is one Senator to derail the quick confirmation votes, and getting a confirmation vote through the regular calendar with all the hold ups and general shortage of time is extremely unlikely.

That said, Rosenworcel and Pai enjoy a couple of advantages that make me more optimistic they get confirmed. First, they are the Senate picks for FCC commissioners. Minority Leader Mitch McConnell backs Pai and wants to see him appointed. Rosenworcel has support from her boss, one of the most powerful Democrats in the Senate. Second, both of them have Senate experience (Rosenworcel is still working for Rockefeller, Pai worked for the Senate Judiciary Committee) and understand how this process works. Finally, there is a long tradition in the Senate that, as things are winding down right before they leave for Xmass, when only a handful of Senators are still around and the reporters and the grandstanders have left, they run through a whole mess of noncontroversial nominees.

So while it wouldn’t surprise me if Rosenworcel and Pai end up cooling their heels waiting for a vote, it also would not surprise me if they sneak through in the dead of night in December.

What About the Nominees?

Jessice Rosenworcel and Ajit Pai are both well-known in D.C. telecom policy circles, and generally well-respected by everyone. Both have clearly known they were possible contenders for Commission appointment for some time, and therefore lived as quietly and as blandly as possible outside of religious orders. Unlike, say, yr hmbl obden’t blogger, they have done little to inform the world what kind of decisions they would make if they were actually in a position to make decisions.

In any event, a person’s previous employment and positions have proven poor indicators of how that person actually performs when appointed. Everyone expected McDowell to be anti-Bell and pro-competitive regulation because he came from CompTel (the trade association for competing telcos), and he turned out to be the keeper of the True Libertarian Anti-Reg Flame (which is not necessary pro-Bell, but generally works out to their advantage). Folks expected Clyburn to be more pro-Bell because she came from a state PUC, but she turned out to be far more aggressive on net neutrality than critics expected. Heck, Copps himself came to the FCC have previously been a lobbyist for the beef industry. No one would have predicted based on any of his prior experience that Copps would become the superstar of the public interest world he is today.

From personal experience, I say that both Rosenworcel and Pai are workhorse wonks – willing to put a lot of time and effort into understanding complex issued before making any kind of decision. They also have shown an ability to push things through and navigate the difficult road of Congress and the FCC. As former FCC staffers, both understand what makes the agency work and how to push the levers to maximize influence and effectiveness, as well as understanding the limitations of being a Commissioner and the limitations of the agency.

As someone who actually has to work in this little corner of the world on issues ranging from high-profile stuff like AT&T/T-Mo to important but very detail-oriented stuff like rules for wireless boosters, I am looking forward to see both confirmed as quickly as possible. I’m sure I will have my disagreements with both of them. But that’s my job as an advocate. Their job as Commissioners is to actually give me (and every other stakeholder) a fair chance to make my case and carefully consider what I have to say. I think both of them will do an excellent job on that score.

Mind you, the fact that they listen and do their homework does not mean they will get it right, or that they won’t make the horrible and catastrophic mistake of deciding I’m wrong. When that happens, expect me to follow my usual custom of explaining their errors as snarkily as possible. Hey, like the scorpion and the turtle, I gotta be true to my nature.

Stay tuned . . .

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