As the U.S. Senate returns to work Monday after a one week recess, the question hanging over the communications industry is when President Obama's nominee to chair the FCC, Thomas Wheeler, will get to work on a number of important issues held up until he is confirmed.
Wheeler sailed through the Commerce Committee approval and seemed certain to win full Senate approval until Sen. Ted Cruz (R-TX) put the confirmation vote on hold. Cruz is demanding an answer from Wheeler about whether the FCC will push through rules mandating transparency by big money political donors when advocacy ads run on broadcast TV.
Cruz's hold also effectively delays the confirmation of former Senate aide Michael O'Rielly, the Republican nominee for the FCC, as well. At present the commission has an acting chairwoman and only three (of five) members, which is the reason some issues are stacked up until the commission is at full strength.
Those include rules related to the voluntary auction by TV stations of some of their broadcast spectrum; net neutrality and rules for an open Internet; TV station ownership rules; how to manage the transition of legacy phone networks into the digital era; and much more.
Wheeler has twice answered Cruz's question, in writing, but the Senator is still not satisfied; and now the two are reportedly going to meet for further discussions.
This is not the way the process usually works, says Michael Copps, who from 2001 through 2011 was a FCC commissioner himself. "Expecting a specific answer as to how he is going to deal with that is expecting too much from the nomination process," Copps tells The Hollywood Reporter. "He is asking for commitments which are better left to deliberations when (the nominee) gets to the commission."
"As a matter of general principal," explains Copps, "the nomination process is supposed to look at the character of an individual, get a general idea of his philosophy of regulation, talk in terms of general principles and judge his or her qualifications to serve the public interest and run an agency according to the mandate that Congress has given the agency."
Copps confirmed that it is unusual - but not necessarily unprecedented - for a Senator to demand the incoming chairman state a position on an issue that hasn't even come before the commission and may never be presented at the FCC.
Cruz, a first term Senator who has support from the conservative Tea Party wing of the GOP, famously filibustered Sept. 25 against Obamacare, helping trigger the government shutdown.
Now he is taking on the FCC, demanding that the commission not push through a version of the Disclosure Act, which Democrats introduced in Congress twice - only to be defeated both times - that would apply to all broadcast television stations (but not cable TV or the Internet, which the FCC by law can't regulate).
Cruz's concern is the FCC will use its power to force disclosure of the identities of those who donate large sums of money for political ads that are booked by committees separate from candidates. These committees have become a major factor in American politics since the Citizen United Supreme Court ruling in 2010, which opened the door to nearly unlimited political contributions by so-called independent committees.
Wheeler has twice provided Cruz with written responses to his question - promising to give the matter serious consideration - and twice Cruz has indicated it is not acceptable. He wants a specific answer.
In a statement issued Oct. 17 a spokesman for Cruz stated: "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. 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."
There was no response to requests for additional information from the Senator or his staff.
Cruz and Wheeler reportedly are to meet to discuss the standoff, possibly as soon as Tuesday, although the exact timing of any meeting has not been made public. It could be later this week, next week, next month or…..
If Wheeler, a Democrat who is close to President Obama, refuses to give a specific guarantee - either because he deems it inappropriate or he doesn't agree on an issue of transparency , which has strong Democratic support - it is unclear what Cruz will do next. He can continue to hold up the nomination indefinitely unless there is a Senate cloture vote, which would require at least 60 Senators agree to push the nomination through. Typically Senators are loath to vote against the wishes of one of their own, so it would be a major event.
To push through Wheeler's nomination without Cruz would require at least seven of Cruz's fellow Republicans to join with all 53 Senate Democrats (there are two independents); which may be difficult to achieve in one of the most divided Congresses in American history. It would require at least some Republicans to turn against the Tea Party favorite as they did Oct. 16 when Congress voted to re-open the government and avoid the fiscal cliff.
Copps says it is clear the FCC has the power to force broadcasters to reveal who paid for political ads. However what Cruz fears is that the commission might go beyond that.
"What Cruz seems to be upset about is that the Disclosure Act went a level further than what the FCC currently does," says Chris Lewis, vp, government affairs for the advocacy group Public Knowledge. "The Disclosure Act didn't just ask for who was paying for the ads - some generically named group like Americans For…something or other. They want to know who is paying for those groups."
"I've never heard Wheeler say he's interested in that," adds Lewis, "but that doesn't mean people aren't out there thinking about it."
Wheeler is only the latest Obama nominee to be delayed for political reasons, but his situation is of specific interest to the broadcast, broadband and communications industries at a time technology is causing significant changes in how business is done. Stay tuned.