Canceling O'Rielly Nomination Seen Causing Problems for Pai

Starting in January, the FCC would be down to two Republicans. If Trump is reelected, Pai could decide to stay until two commissioners are vetted, nominated and confirmed. If Joe Biden is elected, Pai either has to stay or Democrats gain an instant 2-1 majority and will be able to begin moving forward on their agenda earlier than if they had to wait for a third Democrat.

“There aren’t many legislative days left on the calendar to select, vet, nominate and confirm a successor to Mike by year’s end, even counting on a lame-duck session,” said Cooley’s Robert McDowell. “Will he stay until sine die? Or will he leave sooner through a recusal that would liberate him to pursue outside options? Only Mike knows.” O'Rielly isn't sharing his plans.

An early departure could force the FCC into a deadlock this fall, said McDowell, a former commissioner. “While there are not as many big ticket contentious 3-2 items in the pipeline as far as we know, the 2-2 tie gives the two Democratic commissioners tremendous leverage,” he said: “This development has created tremendous uncertainty among interested parties and advocates who were counting on certain outcomes this fall. If the president is reelected, such uncertainty could endure until next summer.”

Pulling the nomination was “very short-sighted and apparently retaliatory,” said Fletcher Heald’s Francisco Montero. “The observations about Pai losing a reliable vote are true, but I also think this could be very demoralizing to the other Republican commissioners.” If Trump is reelected, but Republicans lose the Senate, it could mean “prolonged deadlocks in the nomination and confirmation process,” Montero said. It hurts the administration with important constituencies, he said. “O’Rielly was very much beloved by the broadcasting industry, especially for his efforts to go after pirate broadcasters.”

'Baffling'

We couldn't find any communications stakeholder saying they are happy with the White House's sudden move.

“The withdrawal is a disappointing decision by the White House because … O’Rielly was on track for an easy reconfirmation and has been a stalwart champion of free-market principles,” said Phil Kerpen, president of American Commitment. The decision was “baffling and, at the very least, short-sighted,” said lawyer-communications policy observer Larry Downes. “O'Reilly has been a hard worker and significant contributor to the commission's efforts on spectrum reform, 5G, universal service and regulatory relief.”

Mark Jamison, a University of Florida professor who helped the Trump administration organize the current FCC, was “sorry to see” the nomination withdrawn. O'Rielly “was a force for regulatory independence during the Obama administration, and stayed true to that principle during the Trump administration,” Jamison said: “He will be missed.”

All O’Rielly apparently did was question the authority of the FCC to interpret Section 230 of the Communications Decency Act, said Jeffrey Westling, R Street Institute fellow. “There is nothing in the law that conveys any authority to the commission to interpret the statute, and conservatives have long pushed back on the Democrats' efforts to read into the Communications Act statutory authority that isn't there.”

New Street’s Blair Levin said there are probably relatively few controversial big issues Pai will attempt to take on the rest of the year, where Pai really needs O’Rielly’s vote: “What the White House, going into this election, wants to signal, is that you are either 100% on Team Trump or you are gone.” That “nearly everyone, including his fellow Republican Commissioners or Republican Senators, privately said it was unfair to Mike but have not said so publicly, suggests that the White House strategy to gain what it cares about -- 100% loyalty -- is effective,” Levin emailed.

“Whenever Mike O’Rielly leaves … the whole dynamic will change,” said Randolph May, president of the Free State Foundation. “Putting aside party labels, the change won’t be positive for those, like myself, who favor free market policies and principles.”

O’Rielly is now “a free agent” and doesn’t need to accommodate Pai, emailed Benton Institute for Broadband & Society Senior Counselor Andrew Schwartzman. Biden could also nominate O’Rielly if he wins, Schwartzman noted: O’Rielly is “popular with many Senators, and if GOP Senators are no longer afraid of Trump, they might want to pair Commissioner O’Rielly for a Republican seat.”

O’Rielly might now feel more free to dissent where he would have concurred, agreed Gigi Sohn of the Georgetown Law Institute for Technology Law & Policy, who worked at the FCC under Chairman Tom Wheeler. While he likely will remain in agreement with Pai’s agenda, O’Rielly might vote no on a Section 230 NPRM, she said. Once he leaves, a Section 230 draft NPRM is going nowhere under a 2-2 FCC, she said. If it did get the NPRM stage, there’s also the possibility some party might try to enjoin the proceeding, she said, pointing to the Center for Democracy and Technology lawsuit challenging the EO.

“Once again Donald Trump has shown his ability shoot himself in the foot," with Pai's third majority vote gone, lawyer and lobbyist David Goodfriend said. Either way is a significant hindrance to Pai's ability to accomplish anything, he said. Pai will instead try to push as much of his agenda as he can through the bureaus, and there could be conflict about and challenges to the level of delegated authority, Goodfriend said.