Gomez, Starks Face Tough Questions During Confirmation Hearing

Numerous senators indicated Gomez met with them in recent days.

Chairwoman Maria Cantwell, D-Wash., said she's hoping for a markup to advance the nominees when the Senate returns from a two-week district work period that starts Monday. Committee members will also need to review written responses from the nominees, which usually takes about two weeks, she said. Expect a vote “hopefully when we come back,” she told us. “Hopefully in July.” Asked if she anticipates a smoother process than Gigi Sohn’s failed confirmation, she said, “You never know what’s going to happen around here, but I do think that Ms. Gomez is highly qualified.”

Sen. Ted Cruz, R-Texas, said he’s still “assessing” the records of Gomez and Starks, neither of whom is as “extreme or radical” as Sohn.

Sen. Marsha Blackburn, R-Tenn., pressed Gomez on how she can complete her role at WRC while also sitting on the FCC. The WRC is “vitally important to the U.S.” and “I find it very difficult to see how you could handle two very demanding jobs at the same time,” she said. “I have been very concerned that the U.S. may not be taking an aggressive enough position when it comes to studying more mid-band spectrum at the WRC,” she said.

Blackburn said she also raised the issue in a meeting with Gomez. She suggested the confirmation should be delayed until the WRC is complete at the end of the year.

Gomez reportedly told the U.S. delegation she would leave her role at the State Department if confirmed as a commissioner (see 2306010075). “I can assure you that the State Department is doing contingency planning in the event that you see fit to confirm me as commissioner,” Gomez said. “We will ensure that U.S. leadership will continue,” she said.

Blackburn also raised concerns that the FCC’s Privacy and Data Protection Task Force, launched last week by Chairwoman Jessica Rosenworcel (see 2306140075), could “run afoul” of a Congressional Review Act resolution blocking ISP privacy rules approved under former Chairman Tom Wheeler (see 1704040059). Other Republicans also raised questions.

Starks said he has “no particular insight” into what the task force will do. Gomez said she has no insights on a related notice of inquiry, which hasn’t been released. Traditional rate regulation is “certainly not something I think is necessary today -- I think competition is the best regulator of prices,” she said.

Net Neutrality

Sen. John Thune, R-S.D., asked the commissioner nominees if the FCC should wait for Congress to act before adopting new net neutrality rules. “In my view, it needs to be the role of Congress." The 2-2 FCC has been relatively quiet on the issue, which dominated discussions in the last two administrations.

Gomez said she would welcome congressional action, “but at the same time … broadband internet access service is too central to our lives, to our education, to working, to rural healthcare, not to have oversight.” Additional legislation “would be very sound policy,” but the FCC has “the authorization, the jurisdiction we need to move forward” on rules, Starks said.

Gomez was asked a similar question about Congress and net neutrality by Sen. Kyrsten Sinema, I-Ariz., who had concerns about the Sohn nomination. Sinema asked whether broadband should be once again classified as a Title II service, a decision rolled back under former Chairman Ajit Pai. “The FCC should take action to ensure that it has effective oversight,” Gomez said.

Cruz railed against the FCC’s digital discrimination proceeding (see 2302220045). “It seems premised on the idea that broadband companies don’t want to make money from consumers,” he said. Cruz said the FCC should act only when it finds discriminatory motive or intent, rather than basing potential fines on a statistical analysis.

The record is “being developed right now” on the digital discrimination item, Starks said. “One of the open questions is very much what is the enforcement capacity that the FCC is going to take under this item,” he said: “We will closely follow the law, but this is very much under consideration right now. … We are thinking about this.”

Gomez said she doesn’t know enough to answer Cruz’s questions on when the FCC should find a provider violated rules against discrimination.

“You spent 30 years in industry as you told us in your opening -- in 30 years you had no view?” Cruz retorted. “I spent 30 years doing standard telecom work,” Gomez replied: “I need to be able to sit down and dig into the record and look at the [NPRM] in order to give you an informed answer.”

Tegna Questions

Cruz also slammed “the way the commission handled” the Standard General/Tegna transaction, with no vote by commissioners (see 2306010077). “It was a 2-2 commission -- the chairwoman wanted to block a lawful transaction, but she didn’t have the votes,” Cruz said: “So instead she skipped a commission level vote and directed the FCC’s Media Bureau to do her bidding.”

“Were you troubled” that there was no vote, Cruz asked Starks: “Yesterday, in my office you said you thought the commission should vote on significant matters. Do you still hold that view?” Starks said he hasn’t discussed publicly how the deal was handled. “That is disappointing,” Cruz responded.

Cruz said Gomez told him in a meeting she believed significant issues like Tegna should be handled by the full commission. Commissioners “should vote on more items than not, especially when they’re major items in the public interest,” Gomez responded.

Gomez and Starks gave answers at Thursday’s hearing that were “less than satisfactory,” Cruz told us, citing their views on intent requirements and Title II. “I didn’t like that neither Democrat nominee was willing to say that intent was necessary before a broadband provider could be found guilty of discrimination,” he said. “If the FCC erases the intent requirement, that is essentially a license for activist attorneys general in New York and California to extract millions of dollars from the broadband providers, which will drive up the rates paid by everyone, and enable activist Democrat AGs to abuse the system.”

Cruz said he didn’t like that both nominees “continue to insist that they want the FCC to have the power to regulate the internet like a public utility, to jam it under Title II, which was written for telephone monopolies and not for the internet.” At the same time, the nominees conceded the “parade of horribles that Democrats and the media claimed would happen when the so-called net neutrality rule was repealed” never “materialized,” he said. “And yet neither Democrat nominee has even the slightest hesitation to say, ‘We’ve got to go back and put the FCC in charge of the internet anyway.’ That should be a decision for Congress.”

Cantwell asked Gomez about dealing with complicated spectrum issues. Gomez noted she had extensive experience on the issue at both NTIA and the FCC. “That gives me a unique viewpoint into the commercial needs for spectrum to be the lifeblood of innovation as well as the need for federal agencies to conduct their missions in a successful manner,” she said.

In response to a question from Sen. Amy Klobuchar, D-Minn., Gomez said she supports “getting upgrades” to 911 call centers “as fast as possible.” Gomez later acknowledged “it’s getting more challenging to identify spectrum for new uses” and said it’s important to find ways to “provide additional incentives” for federal incumbents to give us spectrum.

Sen. Ted Budd, R-N.C., noted Gomez was deputy administrator at the NTIA when the Broadband Technology Opportunities Program was established. “As you know this program had a lot of issues,” he said. Budd noted she defended the program in testimony before Congress in 2017. Gomez said she hopes her experience would help “ensure strong oversight and that the dollars are going to those that most need then.”

Uncommitted

Thune, Jerry Moran, R-Kan., and J.D. Vance, R-Ohio, were noncommittal when asked about potential support for the Democratic nominees.

Sen. Ed Markey, D-Mass., told us the committee is working on a potential package of nominees, so Gomez, Starks and Carr could move together. “I know they’re working towards constructing a package of Democrat and Republican nominees, and if that’s the case, and we finally have a five-member FCC with a Democratic majority, then I think that would be a good result,” said Markey.

Thune told us Democrats are “upping their game” in terms of nominees. Gomez is “acquitting herself well here today,” he said after leaving the hearing. “I think she’s knowledgeable, and I think we’ll complete the record with questions and answers and give her fair consideration.” Asked if there’s anything that gives him pause about Gomez, Thune said, “She didn’t have a good answer on Title II.”

Gomez "said some things during the committee hearing that were a little odd,” said Vance. “We’ll see. I don’t have a strong view of her yet.” Republican support would be “more likely” if she were to move with a bipartisan package, he said. Moran told us: “I don’t have a full opinion yet” on supporting any individual nominee or a potential package.

“I support Anna Gomez,” said Sen. Ben Ray Lujan, D-N.M. “I’m hoping all [three commissioner nominees] and the [inspector general nominee] will get the support of the full committee and the members on the floor and we do it in an expedited fashion.” Sen. Jon Tester, D-Mont., said he’s still analyzing Gomez’s record. “I just met with her yesterday for the first time,” said Tester. “She seemed like a decent person. I’ve got to do some work on all of them, quite frankly.”

Sens. Roger Wicker, R-Miss., and Dan Sullivan, R-Alaska, said they were more focused on Thursday’s markup of the National Defense Authorization Act before the Senate Armed Services Committee than the FCC hearing.