Carr FCC Nomination Raises New Questions on Senate Confirmations Timing, Process

FCC General Counsel Brendan Carr's nomination to the commission's vacant GOP seat poses as many questions as it answers about the path forward for his confirmation process and those of Democratic FCC nominee Jessica Rosenworcel and FCC Chairman Ajit Pai, who requires a vote on his own renomination, industry lobbyists told us. President Donald Trump formally sent Carr's nomination to the Senate at our deadline Thursday. The White House said Wednesday Trump would nominate Carr to both the remainder of the vacant seat's current term, which ends June 13, 2018, and an additional five-year term that expires in June 2023 (see 1706280068). Industry observers told us the Carr and Rosenworcel nominations could signal an imminent period of relative stability at the FCC (see 1706290065).

Senate Commerce Committee Chairman John Thune, R-S.D., told us he's still working to schedule a confirmation hearing for Carr and other FCC nominees but hopes it can happen in July, before Congress leaves for its August recess. “We want to get this done,” he said. Senate Commerce has been eyeing a possible July 19 hearing for pending nominees (see 1706200026) but hasn't committed to that date or to bringing up any of the FCC nominees that day, a committee spokesman said.

Thune didn't say whether the hearing would feature Carr, Rosenworcel and Pai together, but he previously said he would prefer to move all three nominees together. Senate Communications Subcommittee ranking member Brian Schatz, D-Hawaii, told us he was “not yet” ready to comment on Carr's nomination pending further review of the nominee. Senate Commerce ranking member Bill Nelson, D-Fla., didn't comment.

Thune theoretically could schedule a hearing on Carr, Rosenworcel and Pai before the August recess, but there's a growing sense that Senate Commerce may need to wait until September given the other items on the committee's plate, said a telecom lobbyist. A July hearing would be “an awfully quick turnaround, so if it gets bumped I wouldn't be surprised,” said Public Knowledge Vice President Chris Lewis. Even if Senate Commerce manages to advance Carr, Rosenworcel and Pai next month, there's growing “chatter” within the communications sector that Senate floor votes on the nominees -- and particularly on Carr and Rosenworcel -- might not come until as late as the start of Q4, said a former senior FCC official with telecom clients.

Carr's nomination also renews questions about how Senate Commerce will package his nomination in relation to Rosenworcel and Pai, lobbyists said. Thune ultimately “has control” over how the committee considers nominees but it would be “kind of unorthodox” for him to insist on considering Carr, Pai and Rosenworcel at the same time, said a former senior FCC official with telecom clients. Senate Commerce would conventionally consider Rosenworcel and Pai as a pair separate from Carr, but that would mean Carr's nomination would remain in limbo until Democratic FCC Commissioner Mignon Clyburn decides whether she intends to retire at the end of her current term, which technically expires Friday, the former official said. Clyburn can continue as a commissioner until the end of the 115th Congress without a Senate reconfirmation vote.

Conventional wisdom “clearly” would dictate that Senate Commerce consider a Carr-Rosenworcel pairing and hold off on Pai until Clyburn decides on her plans, Lewis said. Clyburn suggested during an interview on C-SPAN's The Communicators set to air Saturday and Monday that she has no immediate plans to leave the FCC. "I have not made any plans," she said. "I haven’t turned in any paperwork. I haven’t even talked about" issues related to any next steps (see 1706290070).

A Carr-Rosenworcel pairing likely means relatively quick action, with a hearing and possibly a committee vote before the August recess, said a former Republican staffer. It would be “challenging” to get a Senate floor vote before the recess, but the process will at least be in motion, the former official said. A former FCC spectrum official said in “theory” the nominations could be approved. NTIA Administrator nominee David Redl "was all set to go and look at that,” the lawyer said. Senate Commerce temporarily delayed a vote on Redl at the request of a senator who sources have said is Sen. Ted Cruz, R-Texas (see 1706280061).

Clyburn and Pai are both “allowed to serve out a while longer” so it makes more sense to fill the FCC's existing vacancies first, Lewis said. Senate Democrats haven't made a decision behind the scenes about whom they would want as a replacement for Clyburn, but apparently ruled out both Nelson aide John Branscome and Gigi Sohn, aide to former Chairman Tom Wheeler, several lobbyists said. Before Trump nominated Rosenworcel there was “great angst” about the implications of a Clyburn departure and there's “not that angst anymore,” said a former FCC official with telecom clients.

Various industry groups called for quick action on the Carr nomination, including CTIA, NCTA and USTelecom. "Brendan Carr gets spectrum, and WifiForward is eager for Congress to put him on the job at the FCC as soon as possible,” WifiForward said.

Groups and companies that put out statements mostly praised Carr. Robert Quinn, senior executive vice president at AT&T, said in a blog post “his commitment to public service and wide range of expertise, especially in the areas of wireless technology and spectrum policy, make him the perfect choice.” Carr has “a proven record of advocating sound policies that enable the widespread deployment of mobile broadband in communities of all sizes,” said Wireless Infrastructure Association President Jonathan Adelstein.