Senate Votes 55-41 for Cloture on Pai; 6 Democrats Support

Meanwhile, the Senate Commerce Committee announced it was including NTIA Administrator nominee David Redl on the agenda for its Oct. 4 executive session. That doesn't mean Sen. Ted Cruz, R-Texas, has received a full answer yet to his concerns about the 2016 Internet Assigned Numbers Authority oversight transition, lawmakers and lobbyists said.

Senate Commerce Chairman John Thune, R-S.D., told reporters before the cloture vote that the ensuing debate on Pai likely would not shift the final confirmation vote total. “I think the people who are opposed to him have their minds made up already and those of us who are for him probably do as well,” Thune said. “He is extremely qualified and I think most people recognize his capabilities.” Pai's recent initiatives to reform some FCC processes, such as his pilot program to make draft agenda items public three weeks before commissioners' meetings, “are a credit to him and I hope we have a big vote for him,” Thune said.

Senate Majority Leader Mitch McConnell, R-Ky., Thune and other Republicans praised Pai on the floor before the cloture vote. “It's no wonder why [President Donald Trump] chose to elevate [Pai] to FCC chairman earlier this year,” McConnell said. He “understands the communications industry from every angle.” McConnell and Communications Subcommittee Chairman Roger Wicker, R-Miss., highlighted Pai's FCC transparency efforts and his interest in rural connectivity. Pai “restored confidence in the agency's ability to do its work on behalf of the American people and within the rule of law,” Wicker said.

Both parties cited net neutrality in remarks about Pai. Thune urged swift Senate confirmation as a “corrective” to assure a reversal of what he views as partisan excesses under previous Chairman Tom Wheeler on net neutrality and other matters.

Democrats' Divisions

Senate Minority Leader Chuck Schumer, D-N.Y., led Democratic opposition Thursday, citing concerns about Pai's leadership on the May NPRM proposing to undo net neutrality rules and related reclassification of broadband service as a Communications Act Title II service. Democrats want to preserve existing net neutrality rules to “let the big guy and the little guy compete on equal terms,” Schumer said. “Mr. Pai doesn't seem to get that.” The FCC “should be building on net neutrality, not walking it back,” said Sen. Ron Wyden, D-Ore.

Commerce ranking member Bill Nelson, D-Fla., contended Pai “systematically undercut much of the work done over the past eight years,” including on net neutrality, now-rescinded ISP privacy rules, the E-rate program and media ownership rules. “The vast majority of the actions of Chairman Pai have served to eliminate competitive protections, threaten dangerous industry consolidation, make the internet less free and less open, and weaken critical consumer protections for those most vulnerable,” Nelson said. Communications ranking member Brain Schatz, D-Hawaii, opened formal debate on Pai, saying the chairman is “not the right leader” for the FCC amid his stance on media ownership rules.

Democratic leaders' arguments in opposition weren't enough to sway the six Democrats who voted Thursday to invoke cloture: Sens. Tom Carper and Chris Coons, both Delaware; Joe Manchin, W.Va.; Claire McCaskill, Mo.; Gary Peters, Mich.; and Jon Tester, Mont. McCaskill told us she intends to vote for final confirmation. “I've worked with [Pai] on a number of things,” including efforts to revamp administration and oversight of the Lifeline USF program (see 1709060063 and 1709140059), McCaskill said. “I don't agree with him on everything, but I don't think I can argue that he's not qualified. It's not like he's not going to be confirmed.”

Peters told us he had “come to know” Pai as a member of Senate Commerce “and have been working with him on issues related to rural broadband, something I'm really passionate about.” Peters said “although I do have real reservations about his position on net neutrality,” that won't prevent him from voting yes. Manchin said that “if I vote for [Pai] on cloture, I'll vote for his confirmation.” Tester intends to do “some more research” on Pai before a final vote, “but I anticipate I'll support him.” Communications sector lobbyists had said before Thursday that they anticipated that several of the more-moderate Senate Democrats -- including Manchin, McCaskill and Tester -- were the likeliest candidates to support Pai's confirmation. The lobbyists tipped Sen. Heidi Heitkamp, D-N.D., as a possible vote in favor. Heitkamp told us Thursday, “I'm not supporting him.”

Redl Progress?

Senate Commerce's decision to place Redl on the agenda for its markup reflects that “there's been at least some progress” in providing assurances to Cruz on his IANA transition-related concerns about Redl, Thune told us Thursday. “We're hoping [Cruz, Redl and the Department of Commerce] can get their differences worked out,” Thune said. Cruz referred us to his press office, which didn't comment. Communications sector lobbyists said it's not clear there has been substantial progress in assuaging Cruz, noting he appeared to be entrenched in concerns about Redl's role in the IANA handover process as the House Commerce Committee's chief GOP telecom counsel.

The move to put Redl on the agenda may be a ploy to pressure Cruz to drop objections, as it may have been when Commerce slated Redl for a vote at an August markup before dropping him from the agenda just beforehand (see 1708020052), one GOP lobbyist said. “You can put [Redl] on and you can always take him off” if Cruz still objects next week, the lobbyist said. “It's a bit of a costless option, with the hope that it'll work out.” Republican leaders may be relying on momentum achieved in Wednesday confirmation of Makan Delrahim as DOJ Antitrust Division head (see 1709270058 and 1709280011) and the scheduling of the vote on Pai to carry Redl through, the GOP lobbyist said. “You'd think that Cruz would feel the pressure rising to get people in place, and particularly at NTIA,” the lobbyist said.

Self-Driving Pact

Senate Commerce also will mark up the Amateur Radio Parity Act (S-1534) and self-driving vehicle legislation from Peters and Thune, as anticipated (see 1709210019). The American Vision for Safer Transportation Through Advancement of Revolutionary Technologies Act (S-1885) would require manufacturers to submit safety evaluation reports, including information about crashworthiness, cybersecurity and safety, to the Department of Transportation before any vehicles are tested or deployed, the senators said in a Thursday news release.

S-1885 would allow manufacturers to get exemptions from auto safety standards: up to 50,000 highly automated vehicles in the first year, 75,000 in the second and then 100,000 annually. They could request more exemptions in the fifth year. The Senate bill would give DOT primary responsibility of a vehicle's design, construction and performance, pre-empting laws enacted by state and local authorities, which would continue to have oversight over traffic laws and vehicle registration and licensing. DOT would work with manufacturers to adopt disclosure policies for cybersecurity vulnerabilities and require vehicle makers to develop a comprehensive written plan for identifying and reducing such risks. The bill would establish a panel to develop recommendations on data sharing and advance guidelines on consumer education and marketing. The bill would apply only to vehicles weighing 10,000 pounds or less.

Peters told reporters the bill would differ from the Safely Ensuring Lives Future Deployment and Research in Vehicle Evolution Act (HR-3388), which the House unanimously passed earlier this month (see 1709060035). “A lot of folks had a lot of issues about a variety of aspects” of HR-3388 and the Senate bill would reflect attempts to “find some common ground,” Peters told reporters: The bill won't include language on self-driving trucks since they involve “some unique challenges.” Peters said he and Thune would seek separate legislation on self-driving trucks later, after they do further “due diligence.” Senate Commerce discussed at a hearing two weeks ago whether to include self-driving truck technology in the bill, which was a point of contention between Thune and Peters (see 1709130039). "While this Senate self-driving vehicle legislation still has room for further changes, it is a product of bipartisan cooperation we both stand behind," Thune and Peters said Wednesday in a joint statement.

Commerce also will consider confirmation of Consumer Product Safety Commission Chairman nominee Ann Marie Buerkle and National Institute of Standards and Technology Director nominee Walter Copan during next week's markup. Their confirmation hearing was Wednesday (see 1709270068).