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Wheeler Faces Hold Threat | @eggerton

Congress left town for its August recess, but not before one plainly determined senator signaled he could throw a wrench into the wheels of Tom Wheeler’s smooth ride to nomination as FCC chairman.

According to a source close to Senate Commerce Committee member Ted Cruz (R-Texas), a hold—it only takes one senator to block a presidential appointment—is “not off the table.” That came after Cruz was not happy with Wheeler’s responses to a question he wants answered about the FCC’s ability to require enhanced disclosures of the actual funders of political ads.

Wheeler says he will be guided in his decision by the Constitution, but that there are sponsorship identification and political disclosure responsibilities Congress has already delegated to the FCC dating back to its predecessor, the Federal Radio Commission, in 1927.

According to a copy obtained by B&C, that was part of Wheeler’s answer to Cruz, who said at Wheeler’s nomination hearing last month, and again last week, that how Wheeler interpreted the FCC’s ability to impose political ad disclosure requirements similar to those that failed to pass in the DISCLOSE Act could affect the success of his nomination. Cruz has made it clear he does not want the FCC following the advice of some Senate Democrats to do via regulatory fiat what Congress could not agree to do via legislation.

Looking for DISCLOSE Disclosure

In a marathon FCC oversight hearing in March, Sen. Bill Nelson (D-Fla.) spent his allotted time on that issue alone. He asked whether FCC commissioners were willing to use their disclosure authority to require identifying not only PACs and other groups paying for ads, but the underlying funders “hiding behind the Committee for God, Mother and Country.” Congress attempted but failed to mandate such sponsorship IDs in the DISCLOSE Act that failed to pass this year. “You have the statutory power,” Nelson said. “You don’t have to do what we failed to do four years ago, to pass the DISCLOSE Act.”

In a written answer to follow-up questions from Cruz, Wheeler pointed to sections 315 and 317 of the FCC’s political ad rules and said he would be guided by the Constitution and legal precedent in determining “the scope of those provisions.”

Section 315 requires that at the end of a TV candidate’s spot, for at least four seconds there must appear “a clearly identifiable photographic or similar image of the candidate” and “a clearly readable printed statement, identifying the candidate and stating that the candidate has approved the broadcast and that the candidate’s authorized committee paid for the broadcast.” It also gives the FCC the authority “to prescribe appropriate rules and regulations to carry out the provisions of this section.” Section 317 says that any paid radio broadcast must identify who paid for it.

Wheeler may have received some help from Sen. Mark Pryor (D-Ark.), chair of the Senate Communications Subcommittee, who said recently he didn’t think the FCC would be getting into the political spots issue. That could be a signal Wheeler does not have to wade into this thorny matter quite yet.