FCC Nominees Seen Favored for Senate Commerce Advancement Despite Democrats' Probes at Hearing
The Senate Commerce Committee's Wednesday confirmation hearing on FCC Chairman Ajit Pai and Commissioner-nominees Brendan Carr and Jessica Rosenworcel featured plenty of grievances on policy issues and criticisms against Pai and Carr, as expected (see 1707180041). Despite some Senate Commerce Democrats' misgivings, nothing changed perceptions that all three nominees will advance easily out of the committee, although maybe not unanimously, industry lobbyists told us.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
Chairman John Thune, R-S.D., hopes the committee will be able to “get the confirmation process moving quickly,” with a markup in the near future. The nominees have until July 31 to respond to post-hearing questions, so a Senate Commerce vote to advance them to the full Senate conceivably could happen before the Senate adjourns for its abbreviated August recess, a telecom lobbyist said.
Ranking member Bill Nelson, D-Fla., and Sen. Ed Markey, D-Mass., delivered the strongest criticisms against Carr and Pai. Carr's responses to questions about his ability to be independent from Pai given his current role as FCC general counsel were “not confidence-building” for committee Democrats, Nelson said. Carr declined to list specific instances when he and Pai disagreed on policy but committed to “be independent in my decision-making” if confirmed. “I gave [Pai] the best advice I could on a variety of issues” but he “didn't always agree with me,” Carr said. Nelson also noted reservations with Carr's nomination to consecutive terms through 2023.
Markey was “not satisfied” with responses from Pai and Carr to his questions about whether they support decreasing funding for the E-rate program. “That's very troubling,” Markey said. Pai said he hadn't “made any decisions” on whether to seek a reduction. The USF schools and library discount program is “worth fighting for” and the FCC is studying ways to improve it, given concerns about Universal Service Administrative Co. for its oversight of the program, Pai said. Carr said he has “an open mind” on E-rate funding and isn't committed to a path. Rosenworcel said she doesn't support reducing funding for E-rate. Nelson, Sen. Brian Schatz, D-Hawaii, and others also inquired about E-rate throughout the hearing.
Markey led the long-expected litany of Senate Commerce Democrats' questions critical of the May NPRM examining 2015 net neutrality rules and reclassification of broadband as a Communications Act Title II service. Markey and others criticized Republicans and some in the private sector for not providing hard evidence that 2015 rules and Title II reclassification caused a drop in broadband infrastructure investment. “Anecdotal evidence is not evidence” enough to justify rolling back the rules, Markey said. Schatz noted the “historic” number of comments filed on the NPRM in docket 17-108, which stood at about 10 million at our deadline Wednesday (see 1707190025).
Thune and other Republicans highlighted net neutrality, in support of the current NPRM. Thune expressed concerns about “suspicious” and fraudulently filed comments in favor of the now-current neutrality rules. Pai said the FCC would “be guided by the substantial evidence test” under Communications Act Section 706 and would determine the “appropriate judgment” based on that interpretation of the record. Sen. Mike Lee, R-Utah, highlighted claims that the rules “discouraged” the private sector from investing in broadband deployments in the U.S. Pai said he's “testing that proposition” in the NPRM.
Schatz sought to clarify whether President Donald Trump's administration filed an ex-parte notice with the FCC when it declared its support Tuesday for the net neutrality NPRM (see 1707180009), given that the White House did so in 2014 when then-President Barack Obama declared his support for the now-enacted rules (see 1411100035). Carr said he wasn't aware of any filing and planned to follow up with Schatz about whether such a filing was required.
Schatz and other Democrats raised concerns about whether the Trump administration is seeking to influence the FCC's decision-making on AT&T buying Time Warner and other media proceedings. Other Democratic senators have warned DOJ about allowing the administration to influence its review of that transaction amid reports White House officials see the review as a potential way of addressing Trump's well-known frustrations with coverage of his administration by TW's CNN (see 1707070054 and 1707120062). Pai said he isn't aware of any direct or indirect contacts between the White House and the FCC “on any pending transaction.” He said he “would not” comply with any White House request “to take retaliatory action” against a company over news coverage.
A range of other issues drew Senate Commerce interest, including input on a broadband title in a Trump-sought infrastructure package. Rosenworcel believes “that if there are additional programs” created in a broadband title in the infrastructure package, “it is absolutely imperative that we think about how they work in conjunction” with the USF.
Pai responded to Sen. Jerry Moran, R-Kan., in support of the need for legislation to provide additional funding for post-incentive auction repacking above the $1.75 billion allocated in the existing reimbursement fund. The FCC has estimated repacking expenses will total $2.12 billion, $365 million above the allocated funding. Moran is believed to be close to filing his version of the Viewer Protection Act (see 1612090054 and 1707140070).