Senate Commerce Approves Wheeler Nomination

UPDATED 3:56 p.m. ET

The Senate Commerce Committee approved the nomination of Tom Wheeler to be FCC chairman Tuesday, but not without some drama with one senator threatening to delay Wheeler's final confirmation. 

Committee members also approved a cybersecurity bill backed by cable and telco operators, and a violence research bill that has the blessing of broadcast, cable and studio interests.

Senate Republicans would have preferred that the committee delay a vote on Wheeler until the White House had nominated a Republican to replace Robert McDowell, a point ranking member John Thune (R-S.D.) made at the hearing. Thune said he would support Wheeler's nomination, but would prefer that the committee have delayed its vote and was "better served" by pairing Wheeler with the other nominees, whom he said he expected the White House to name "soon."

He said that any delay in the committee vote could be offset by swift floor action. He pointed out that while former FCC Chairman Julius Genachowski's nomination came two and a  half months before McDowell’s renomination, they were voted on in committee as a pair on the same day and got full-Senate confirmation just a week later.

It has become custom, though not a rule, that the committee pair votes on FCC nominees, but Chairman Jay Rockefeller said that was not happening on his committee.

"Unfortunately, the FCC has been without a Chairman for more than two months now, even though this Committee considered Tom Wheeler’s nomination to be Chairman more than a month ago," Rockefeller said [technically, yes, but it has an acting chairwoman, Mignon Clyburn]. "I said this at his nomination hearing, and I will say it again: Tom Wheeler is well-qualified to be FCC Chairman, with a distinguished career in the communications industry."

Pointing out that the committee had voted on Republican FTC Commissioner Josh White, unpaired less than a month after his hearing, Rockefeller said Wheeler should get the same consideration. The Senate leadership could decide to pair a full-Senate vote, but Wheeler was qualified and should be favorably reported, he added.

The committee's vote on White happened with one no vote from Sen. Ted Cruz (R-Tex.).

Cruz said he had not gotten a sufficient answer from Wheeler on the issue of whether the FCC could use its authority to what he and other Republicans would consider an end-run around Congress by boosting political ad disclosures, something Congress has failed to do with the yet-to-pass DISCLOSE Act.

Cruz did not use the H word (“hold”), but did mention Wheeler had failed to answer the question three times. 

"If he continues to refuse to answer that question, I may well support using procedural means to delay this nomination until he answers the very reasonable question that has been posed," Cruz said. 

A single senator can hold up the Senate vote on a nominee for any—or no reason—as did Sen. Charles Grassley with the nominations of Ajit Pai and Jessica Rosenworcel, the two most recent additions to the FCC.

The Republicans made their point, which included culling the Wheeler nomination from a group of others that were initially approved during Tuesday's executive session.

Sen. Marco Rubio (R-Fla.) also said he wanted Wheeler to elaborate on his theory of indecency regulation before the nomination moves to the full Senate. Rockefeller, who has been a frequent critic of media content and its impact on children, said he appreciated Rubio’s comments “very much.”

Cruz had telegraphed his concern in Wheeler's June nomination hearing, saying the DISCLOSE Act issue was one thing that might derail the nomination.

At the hearing, he asked Wheeler whether he thought the FCC had the authority "to implement the DISCLOSE Act or otherwise regulate political speech." Some Hill Democrats have pushed the FCC to step in to boost on-air disclosures of ads by PACS and other groups.

Wheeler said he needed to learn more about it, but did not need any schooling about how passionately both sides of the aisle feel about the issue. He also pointed out the current open proceeding, which would also limit his ability to weigh in. 

"I do not miss the expression on both sides as to the strong feelings, and I know this is an issue of tension," he said.

But Cruz was not ready to move on. He pointed out that all the Republican members of the committee, joined by Minority Leader Sen. Mitch McConnell (R-Ky.) sent a letter to then chairman Julius Genachowsi on the issue - essentially advising the FCC not to step in.

Cruz asked Wheeler to submit an answer in writing to the question and warned that it was an issue that could potentially prevent him from getting the job.

Cruz said during Tuesday's executive session that Wheeler had been asked the question in follow-up to the hearing and had yet to answer it.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.