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FCC Nominees Get Warm Reception in Senate

The Democratic and Republican nominees spent a lot of time Wednesday echoing each other's responses, and faced senators who generally signaled they thought them well qualified, thoughtful and capable, suggesting their chances were good for confirmation. That came in a Senate Commerce Committee confirmation hearing Wednesday.

In fact there was nary a discouraging word, though the skies did not remain clear all day. One Senator not on the Committee signaled he still intended to block the nominations if they reached the floor.

Jessica Rosenworcel, who was on familiar territory as the current senior communications counsel to the committee, and Ajit Pai, an attorney with Jenner & Block and a former FCC attorney and Senate staffer, gave careful answers to questions that were often an effort by Senators to get them on the record on issues or get them to commit to follow-up on their particular concerns.

For example, Sen. Frank Lautenberg (D-N.J.) got both nominees to commit to looking into the challenge to the license of WWOR, while Sen. Roy Blunt (R-Mo.) got them to state for the record that they did not support reimposition of the Fairness Doctrine. Pai pointed out that FCC Chairman Julius Genachowski had already had the disused rule expunged from the books. Democratic Sen. Mark Begich got both to commit to visit his home state of Alaska, pointing out that it had been 42 below last week. Rosenworcel pronounced herself hardy and ready. Pai said he would clear his calendar in July or August, prompting a smile from Begich and kudos for honesty.

In answers sure to warm the cockles of cable operator's hearts, both nominees agreed with Sen. Jim DeMint (R-S.C.) that after 20 years, the Cable Act needed reviewing. Rosenworcel added the same could be said for other regs, while Pai specified the retrans regime as something he thought could use some more attention.

Both Rosenworcel and Pai said they thought more spectrum needed to be freed up for wireless broadband, but Rosenworcel added that it would be foolish to concentrate only on incentive auctions and that network efficiency and more spectrum-efficient technology should also be part of that framework. She said if she were confirmed she would push for a more comprehensive inventory of who was using spectrum, and how. Pai agreed, and said it would be best if the FCC had that inventory beforehand.

Asked by Sen. Olympia Snowe (D-Maine) whether such an inventory shouldn't come at the beginning of the process, Rosenworcel agreed that that would be optimum, but said that the FCC might not have the luxury of doing things sequentially given the pressing need for spectrum for broadband.

She and Pai also agreed that the FCC and the National Telecommunications & Information Administration -- which oversees government spectrum users -- needed to coordinate more closely over spectrum issues.

Pai was asked whether there would be any conflicts of interest or he would have to recuse himself given the past few months when he was at Communications law firm Jenner & Block. He said no, that he knew when he joined last spring from the FCC that he was in the running for the post and had not represented any clients before the FCC and had been "screened" from such work done by others. He also said he would have no bias toward any of the clients of that firm.

The FCC's release Tuesday of a staff report was criticized by Sen. Blunt, who asked the nominees whether they thought the FCC ought to be "gratuitously" publicizing a staff draft of a report on a merger whose application had been withdrawn. Pai said he would want to make sure the FCC was within its rights to do so, and would also take into account the impact it would have on stakeholders. He said he thought the FCC should exercise the discretion it has "very carefully." Rosenworcel said she thought the chairman had the authority to release the report, but also acknowledged it was probably an "unprecedented" move. FCC staffers have also suggested it was a first.

Other areas of agreement:

Both support the e-rate program, which subsidizes communications to schools and libraries.
Both support incentive spectrum auction legislation.
Both agreed to look into Canadian border issues with respect to broadcasters and spectrum reclamation.

They diverged slightly over the issue of how merger-specific the FCC's deal conditions should be. Roseworcel said that they should at least have a rational relationship to merger specific harms being redressed, while Pai said that he would want any conditions to be strictly merger-specific.

Rockefeller spent the final few minutes of the hearing talking about his concerns over TV and Internet content, which he said had coarsened, and its impact on children. It is a big issue with the senator, who said he was angry but added that the rest of the country should be angry as well. When he finally asked both nominees what they thought the FCC could do about it, recognizing the legal status of the FCC's enforcement of content regs was "constrained," both agreed that the FCC had a responsibility to help parents by providing them with the tools to protect their children. Pai said that as a new parent he was concerned about the images his son sees and words he hears on any media, radio, TV or smartphones. Rsoenworcel added that it was incumbent upon the FCC, "and all of us" to also foster quality content, "the good stuff," for kids.

Rockefeller praised Pai for the inclusive tone of his opening statement, and for his willingness to listen to stakeholders; he also praised Rosenworcel effusively, and indicated he thought they should be pretty confident about confirmation, as did others on the panel.

But at least one dark cloud popped up over what was an otherwise sunny Senate confirmation horizon. That came in the form of an e-mailed statement to reporters from Sen. Charles Grassley (R-Iowa) reiterating his threat to block the nominations over an issue unrelated to the nominees or their qualifications.

Grassley is not a member of the committee, but is unhappy with the FCC for not providing documents in response to his request for information about the commission's grant of a waiver to LightSquared for its wholesale broadband wireless network.

Grassley said that since the FCC has not made any moves to grant his request -- FCC Chairman Julius Genachowski has said the commission only responds to requests from the chairs of the relevant oversight committees (and Grassley is not one of those) -- "my intention to place a hold on the FCC nominees, should they reach the floor, stands."

The nominations will likely be voted out of committee sometime in the next couple of weeks -- the hearing record will remain open for a week for written questions and answers -- but nominations can be prevented from getting a floor vote by a single senator placing a hold.

Rockefeller has met with Grassley over the issue, and Wednesday in a statement on the Committee Web site indicated he was still open to working things out with any colleagues with issues. "As we consider these nominations, I remain committed to working with my colleagues to address any concerns," he said, "and move these nominations to a full Senate confirmation as expeditiously as possible."

Pai replaces Meredith Attwell Baker, who exited last spring to join Comcast. Rosenworcel is succeeding her old boss, Michael Copps, who has to exit at the end of the current Congress, which likely means no later than the beginning of January and the start of the next congressional session.