What to Expect From the Next FCC Chairman (Analysis)

Although Thomas Wheeler, President Obama’s nominee as the next FCC chairman, is poised to easily win Senate Commerce Committee approval in the coming days, his final confirmation is not likely until September if not later – and that has consequences.

Wheeler’s nomination is being tied up while Republicans wait for Obama to fill the seat being vacated by GOP commissioner, Robert McDowell. There has yet to be an announcement of the President’s choice for the job. The Republicans will only vote when they can approve both, according to Congressional tradition and informed sources.

In 2012, two other FCC nominations were held. Sen. Chuck Grassley, (R-Iowa) lifted a hold he had placed over concerns about the FCC’s handling of wireless startup LightSquared. He dropped his objections under pressure from senators and members of the House, but it is a lesson in how the works can be gummed up by even one senator raising questions.

Even if there are no questions, it is likely to still be a slow process, even as monumental questions wait for the new chair to arrive.

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One thing is that the Senate’s timetable is working against a speedy path to the FCC chair for Wheeler. The Senate will shortly take a July 4 recess and then return for about three weeks before taking off the entire month of August.

Sources say Senate minority leader Mitch McConnell (R-KY) told the White House in mid-June he wants to appoint Michael O’Reilly, a staff member for Sen. John Cornyn (R-Texas), for the vacant GOP seat — but the process of vetting him (checking personal and professional references, bank and financial records, etc.) can take six weeks. Even setting up a hearing on his nomination once the President puts his name forward can take additional time. Wheeler’s Commerce Committee nomination hearing took six weeks to schedule.

That means interim FCC chairperson Mignon Clyburn, the first woman and first African American to hold the job, will have another several months — or more — to pursue her agenda, which includes women’s and minority rights and accessibility for the disabled.

Clyburn, who said at the recent cable TV show in Washington, D.C. that she is moving full speed ahead while she has the chair, isn’t likely to act on big issues such as the sale of broadcaster’s spectrum, net neutrality, retransmission consent or media mergers. But she will push pet  issues such as computers in schools and making broadband accessible to all which she has long supported.

At his confirmation hearing on June 18, Wheeler earned high marks for his poise and positions – at least the ones he was willing to list – from both sides of the aisle. He is a savvy D.C. player who was a big fund raiser for Obama and helped with the transition after the election.

Wheeler is an unusual choice for the FCC chair in some ways. At age  67, he is the first person taking on the job in the sunset of his career and if confirmed will be the oldest person ever to hold the job.

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In hindsight, everyone else who had the FCC chair was preparing for the lucrative corporate or association jobs that followed. For instance, former chairman Michael Powell now heads the National Cable and Telecommunications Association – the same group Wheeler headed back in the 1980s (when it had a slightly different name).

Before the committee, Wheeler wheeled out his experience running the cable TV trade group and after that the wireless telecommunications trade group as proof of his commitment to business and competition in the  marketplace. This was clearly part of his efforts to disarm his critics among the political conservatives. He said the role of the FCC has evolved and is now to promote and protect competition “with appropriate oversight to see that it flourishes.”

“Competition is a power unto itself that must be encouraged,” he added. “Competitive markets produce better outcomes than regulated or uncompetitive markets.”

Wheeler said as head of the FCC his client will be “the American public, and I hope I can be as effective an advocate for them as humanly possible.”

Wheeler danced around questions about a blog post he wrote indicating he would have supported the 2011 merger of AT&T and T-Mobile. He also would not be pinned down on the hot button issues of how he will deal with retransmission consent when the public is crying over blacked out channels; and how he feels about the concentration of ownership of media (including the rule barring a company from owning newspapers and TV stations in the same market).

Wheeler said there is nothing that comes before the FCC that is more important than media mergers. He said each review must look at the specific facts of that case.

Wheeler said he will move forward with the auction of spectrum space that is currently held by broadcasters and others, but is coveted by those who want to offer ever more sophisticated digital and video content on an array of devices.

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Wheeler believes conversion to IP (Internet Protocol) digital distribution is inevitable – it allows for delivery of much more content by only sending what is being used –  but said the FCC must work to make it go smoothly and mitigate any impact.

He supports broadband for all – something the President has long preached — and broadband in the classroom.

However, he put off declaring a clear position on net neutrality and the issue of whether all sites should be equally accessible or people should pay depending on how much bandwidth they use, especially when they are watching video.

Another issue that he didn’t immediately address was raised by Sen. Ted Cruz (R-TX), who threatened to derail his nomination if he supported the Disclosure Act, a bill that has been floating through the Senate since 2010 with ever greater opposition from Republicans, especially Tea Party Republicans like Cruz. Last year they filibustered to kill that bill. At present there isn’t even a bill on the floor, but Sen. Sheldon Whitehouse (D-R.I.) said he plans to re-introduce it.

The legislation is meant to counter the impact of the Citizens United Supreme Court ruling (allowing corporations to donate money to political candidates like a person) by mandating that any person or group that puts a large amount of money into a non-profit that then runs advocacy ads must be identified.

Cruz demanded, as is his right, that Wheeler provide a written answer to his question about disclosure. It is part of the confirmation process that a senator can ask for a written addendum to the testimony. In this case Wheeler is expected to fudge his reply by saying he will study the issue, thus defusing it from holding up his confirmation.

Actually, it appears there is almost nothing that will stop it. “I think you’ve acquitted yourself extremely well,” Senate Commerce Committee Chairman Jay Rockefeller (D-WV) told Wheeler.

The committee’s ranking Republican Senator John Thune (R-SD), said “I think you’re going to be confirmed and I think you’re up to the job.”

It just will take longer than it should as the wheels in Washington move slowly.