Cruz Plans to Block Wheeler FCC Confirmation Until He Gets Answers

Committee Chairman Jay Rockefeller, D-W.Va., filed hotlines Wednesday, a Commerce spokesman told us. Rockefeller also tried to move FTC nominee Terrell McSweeny, a Democrat, out of committee but failed.

Rockefeller is unhappy with the holds. “I'm disappointed that several other highly qualified nominees were blocked last night,” he said in a statement, acknowledging approval of National Transportation Safety Board nominees. “We need to get the government functioning as a whole again. ... If the government is going to fully function for the American people, we have to get these highly qualified nominees confirmed now."

Sen. Ted Cruz, R-Texas, confirmed that he’s blocking Wheeler. “The Senator is holding the nominee until he gets answers to his questions regarding Mr. Wheeler’s views on whether the FCC has the authority or intent to implement the requirements of the failed Congressional DISCLOSE Act,” a Cruz spokesman told us in an email Thursday. “Mr. Wheeler had previously declined to give specific answers, but as he’s now expressed his readiness to revisit the Senator’s questions, the Senator hopes to communicate with him soon."

Just before 10 p.m. Wednesday, Senate Majority Leader Harry Reid, D-Nev., asked on the floor for “unanimous consent the Committee of Commerce be discharged from further consideration of Michael P. O'Rielly and that the nomination be placed on the executive calendar.” The presiding officer granted the discharge and said the nomination is placed on the calendar.

Reid never brought up the Wheeler-O'Rielly unanimous consent possibility. The Senate’s next scheduled session is Oct. 28. The body is expected to convene at 2 p.m. that day to consider a National Labor Relations Board appointment. O'Rielly was originally scheduled to receive a vote in a Senate Commerce executive session Oct. 3, which was postponed due to the shutdown. Wheeler’s nomination was voted out of committee this summer.

Observers have worried about a potential Cruz objection for months. Cruz objections derailed the nominee confirmation hotline, a broadcast industry lobbyist told us. The lobbyist said that when Cruz placed a hold on Wheeler, Senate Communications Subcommittee Chairman Mark Pryor, D-Ark., placed a hold on O'Rielly -- which is not meant to suggest a “particular concern” Pryor has with O'Rielly but to ensure the Democratic and Republican FCC nominees stay paired. A Pryor spokeswoman denied that Pryor was the hold.

The Wheeler-O'Rielly hotline attempt surprised one telecom lobbyist. “What I've heard is he did,” the telecom lobbyist told us of the Cruz hold, describing “obvious uncertainty” in the attempt to hotline the nominees. The FCC nomination process could now “could go for longer ... to the extent [Cruz] remains unsatisfied,” the lobbyist said. Up to recently, O'Rielly was the bigger procedural hurdle, said the lobbyist. “Does the work with Cruz to reach resolution really only begin now?"

"This doesn’t seem to be a huge issue, to be honest,” the telecom lobbyist said. He called a prior FCC nomination hold from Sen. Chuck Grassley, R-Iowa, “a lot more contentious” of a battle. The hotline effort was likely attempted “while everyone’s in a good mood” given Congress’s success at reopening the government and raising the debt ceiling, he said. Another industry official speculated the FCC nominees will be in limbo for a while now.

Resolution of this standoff seems unclear, Stifel Nicolaus said Thursday in a research note. “We suspect Mr. Wheeler will look to somehow give Sen. Cruz greater assurances without definitively addressing the FCC’s authority on such a pending issue (some congressional Democrats are pressing the FCC to act),” the analysts said. “It’s possible the senator will be unmoved, but at some point this year, we believe Mr. Wheeler and his Senate allies will find some way to mollify Sen. Cruz or overcome his opposition, possibly through some broader package of nominees.” Republicans don’t generally oppose Wheeler and also support the O'Rielly nomination, according to the note. Last week, a Republican Senate ex-staffer who follows the nomination process told us there’s been a push for unanimous consent confirmation of Wheeler and O'Rielly since the shutdown began (CD Oct 15 p8). But Cruz and Pryor prevented such a successful hotline effort earlier this month, the ex-staffer had contended. The block leaves the nominees as one major item for Congress to take up when the Senate resumes at the end of October.

Congress hasn’t paused in considering surveillance review. The shutdown “gave us a little bit of a delay ... a very short detour, but everything is back on track,” American Civil Liberties Union Legislative Counsel Michelle Richardson told us. The ACLU has aggressively pushed Congress to change a variety of surveillance laws.

Richardson expects “new important legislation” and described October events that spurred on the dialogue, such as a Cato Institute event last week where House Judiciary Crime and Terrorism Subcommittee Chairman Jim Sensenbrenner, R-Wis., laid out details of an overhaul he plans with Senate Judiciary Committee Chairman Patrick Leahy, D-Vt. The overhaul would, among its many provisions, end the bulk collection of phone metadata and is in contrast to proposals being developed out of the Senate and House Intelligence Committees, which seek “an expansion” and to “entrench” the surveillance practices used now, Richardson said. The Judiciary and Intelligence committees in both bodies of Congress will end up “colliding” with each other, she said.

"There’s these two competing camps,” said Electronic Frontier Foundation Policy Analyst Mark Jaycox of the split between intelligence and judiciary committee proposals. The bills from the intelligence committees are “written in secret and marked up in secret,” he said. “I think Congress is still very focused on surveillance.” He expects surveillance bills to move forward in an omnibus package, collecting various reform ideas, and the question is how strong the package will end up being, he said. EFF is especially curious to see the language of the Sensenbrenner-Leahy proposal, hyped over the last couple of months, he said, noting the connection between bodies of Congress. “You are seeing the judiciary committee come together.” Bills may not hit the floor this fall, but the committee process is moving along in positive ways, with debate reinforced by continual leaks, said Richardson.

Congress is stirring back into action in other ways. The House Communications Subcommittee scheduled a hearing Wednesday at 10:30 a.m. in 2123 Rayburn, a notice said (http://1.usa.gov/16QAKAQ). Its title is “The Evolution of Wired Communications Networks” and witnesses have not been announced. The committee’s deputy press secretary told us this will focus on copper and is the one that Communications Subcommittee Chairman Greg Walden, R-Ore., alluded to during an American Enterprise Institute event in September. The subcommittee also had postponed a hearing on 5 GHz spectrum, initially set for Oct. 1 with rescheduling timing still being nailed down now, the spokesman said. The House Intelligence Committee scheduled an open hearing on National Security Agency programs for Thursday at 10 a.m. in 2167 Rayburn.

Congressional attention is also expected to focus on Fire Island, N.Y., where Verizon had tried to end its landline service and use a wireless service called Voice Link, said an industry official, also noting possible attention to FirstNet soon. The Senate Commerce Committee may hold broadcast incentive auction hearings, the industry official said. The House Communications Subcommittee had keyed up, before the shutdown, an October hearing focusing on the FCC commissioners, the telecom lobbyist said, predicting that would be rescheduled soon.