Rosenworcel Gets Some GOP Support, Boosting Fast-Track Bid

A handful of Commerce Republicans we spoke with after the hearing said they intend to vote to advance Rosenworcel to the full Senate, despite misgivings about her position on instituting new net neutrality rules. Others remain undecided. Republicans indicated their relative support for Rosenworcel won’t extend to fellow Democratic commission nominee Gigi Sohn, with some saying there are no circumstances in which they would support the latter’s confirmation. Top committee Republicans believe Democrats will have a chance to fast-track Rosenworcel only if they don’t link her and Sohn for floor consideration.

Senate Commerce Chair Maria Cantwell, D-Wash., told reporters she’s aiming to hold a committee vote on Rosenworcel at a Dec. 1 executive session that would abut a likely confirmation for Sohn and NTIA administrator nominee Alan Davidson (see 2111120029). That would be after the deadline for Rosenworcel to respond to senators’ written follow-up questions, which is seen as a prerequisite for a committee vote. Cantwell left open the possibility the hearing for Davidson and Sohn could happen next week “if we’re still here” and not on a week-long Thanksgiving recess. Senate Democratic leaders are eyeing keeping the chamber in session past the end of this week in a bid to make progress on advancing a substitute to the House-passed FY 2022 National Defense Authorization Act (HR-4350).

“I’m actually very surprised at how many questions” Commerce members directed at Rosenworcel, which “shows the importance of the broad authority” the FCC wields “and how much people care about” issues under the commission’s purview, Cantwell said. She believes the relative lack of criticism Rosenworcel faced from Republicans bodes well for the chances the Senate can quickly advance her reconfirmation. Democrats see Rosenworcel’s reconfirmation as a top priority because the FCC will shift to a 2-1 Republican majority if she’s forced to leave at the beginning of January.

Senate Communications Subcommittee Chairman Ben Ray Lujan of New Mexico and other Democrats said they will leave decisions about whether to pair Rosenworcel and Sohn for confirmations to Senate Majority Leader Chuck Schumer, D-N.Y., and other leaders. “There should be a swift vote on” Rosenworcel “and I hope on” Sohn, Davidson and Bedoya, too, Lujan told us. “All of these positions are critically important to every one of us who wants to see investments in broadband” and “protection for consumers.”

“Both the FCC and FTC have a responsibility to be able to build out connectivity and also protect consumers, namely users of the internet,” Lujan said. During the hearing, he criticized President Joe Biden’s delay in making FCC nominations, saying the likelihood of a “strong bipartisan vote” for Rosenworcel shows her selection “should have been done months ago,” perhaps as early as March. Sen. Brian Schatz, D-Hawaii, also supports Sohn’s confirmation but believes “there can be only one floor strategist and that’s” Schumer. Schatz cautioned during the hearing that the Senate doesn’t “have very [many] floor days left” in which to consider Rosenworcel, and failure to act would leave the FCC “leaderless” at a critical time.

Republican Split

Senate Commerce ranking member Roger Wicker, R-Miss., told us he’s “not yet” comfortable with Democrats’ aim to fast-track Rosenworcel, “but if you ask around, you might get the impression that it would be better not to link” her to Sohn. GOP willingness to allow expedited floor consideration of Rosenworcel will “depend a lot on what else is on the schedule” and “her responses” to senators’ written questions, Communications ranking member John Thune, R-S.D., told us. “I don’t suspect we’ll be in any particular hurry, but if” the Democrats “want to rush it to the floor, that’s their prerogative.”

Wicker said he’s not satisfied with Rosenworcel’s explanation of why she believes the FCC should bring back some form of its rescinded 2015 net neutrality rules, noting “she was not able to answer” his question about what disadvantages had occurred after those regulations’ repeal. He argued the U.S. “did better than Europe” on handling increased broadband traffic during the COVID-19 pandemic because of the shift to “light-touch” regulation. Rosenworcel argued there have been “broader” impacts to telecom policy beyond net neutrality because of the 2015 rules’ rescission, since that action took away the commission’s oversight of broadband services.

Rosenworcel will “have some Republicans who will support her and if she’d answer the questions the right way, maybe I could get there, too,” Thune said. “Sohn is going to be a much heavier lift.” He also noted misgivings about Rosenworcel’s net neutrality stance after pressing her to commit to “coming to Congress” for more “direction” on net neutrality before trying to promulgate new rules. Rosenworcel said she “will always work with” Senate Commerce on telecom policy matters and believes the commission can “always benefit” from legislative updates but was firm in her support for the 2015 rules and reclassification of broadband as a Communications Act Title II service.

Senate Public Works Committee ranking member Shelley Moore Capito of West Virginia told us she’s among the committee Republicans who expect to vote for Rosenworcel. “I look at her favorably,” Capito said. “She’s been very responsive to me. At this point I’d say yes, I would support her.” But Capito is firmly against Sohn, saying a review of the nominee’s record indicates she’s “a little too radical in her thinking for my taste.”

Sen. Dan Sullivan, R-Alaska, told us he also intends to back Rosenworcel. “I have a little difference of opinion with her on the issue of the FCC’s authority to undertake net neutrality rulemaking without Congress’ authorization,” he said. “But on Alaska issues she’s very knowledgeable and has already shown she will work with my team, the telecommunications community in my state and with healthcare providers who are very, very reliant” on USF Rural Health Care Program money. Sullivan placed a hold on FCC Commissioner Brendan Carr’s reconfirmation in 2018 over objections to the FCC’s handling of Alaska issues.

Sen. Marsha Blackburn, R-Tenn., said she’s still undecided on Rosenworcel but noted “I’ve known her for years. I do have concerns about her net neutrality positions, but that’s no secret.” Blackburn also hasn’t made her mind up about Sohn but noted “tremendous concerns about someone who’s been an activist” becoming an FCC commissioner. Blackburn, like other Republicans, hasn’t met with Sohn.

Policy Questions

Blackburn likes that Rosenworcel “has a plan for moving forward with spectrum. If we properly launch 5G and look at wireless as our future, we are going to have to make certain” that there’s an inventory of federal spectrum so “we utilize every possible bandwidth we have to close this digital divide.” Blackburn and Thune noted during the hearing the need for improved interagency coordination on spectrum issues. Blackburn believes NTIA “has gotten outside of their jurisdiction” on the airwaves and criticized the FAA for its examination of interference risks from C-band deployments (see 2111100068).

"We need a whole-of-government approach" to spectrum policy, Rosenworcel said. She suggested the FCC consider creating "incentives" aimed at encouraging federal agencies to free up some of their spectrum holdings or making more efficient use of the airwaves. There remain "a lot of engineering issues" with the 12 GHz band that require attention before the FCC can look at allowing 5G operations on that frequency (see 2111080045), she said: "We want to be really careful" not to create a situation where satellite incumbents on the band experience interference from new commercial operations.

Rosenworcel avoided providing a more concrete timeline for finalizing long-awaited improvements to broadband coverage data maps, despite repeated inquiries from Cantwell, Wicker and others. FCC maps are “ludicrous” and have led to “some pretty erroneous decisions” on broadband money, Cantwell said. Congress required that some new broadband money allocated to NTIA in the Infrastructure Investment and Jobs Act remain unavailable until the commission releases the revised data.

Rosenworcel emphasized she began working to improve the maps from the moment Biden made her acting chair in January, but more holistic maps are still in development. She noted various causes for the delay, including the FCC’s since-corrected lack of sufficient computer processing power and a forthcoming GAO review of losing bidders’ challenges to the commission’s selection last week of a broadband serviceable location fabric that could last up to 100 days. The FCC is “doing everything possible” to expedite GAO review of those challenges, Rosenworcel said. She also cited the FCC's August release of improved mobile coverage maps (see 2108060064).

Senate Commerce before the hearing advanced National Institute of Standards and Technology director nominee Laurie Locascio, the Anti-Spoofing Penalties Modernization Act (S-594) and American Cybersecurity Literacy Act (S-2699).