Holds May Imperil 2018 Senate Confirmation of Carr, Starks to FCC Seats

A second hold placed last week on Senate confirmation of FCC Commissioner Brendan Carr to a full five-year term has at least considerably hindered the prospects for the chamber to approve him and Democratic FCC nominee Geoffrey Starks this year, lawmakers and lobbyists said in interviews. Sen. Joe Manchin, D-W.Va., placed a hold on Carr because of the FCC's decision to suspend the window for responding to Mobility Fund Phase II challenges (see 1812140047). Sen. Dan Sullivan, R-Alaska, placed an ongoing hold on Carr earlier this year over concerns about FCC handling of the USF Rural Health Care Program (see 1809130059). Senate leaders intend to move the nominees as a pair.

The Senate's technical end-date to act would be when the 115th Congress formally ends at noon Jan. 3, though in practice the deadline would come whenever the chamber adjourns for Christmas recess. The de facto end could come this week, depending on whether Congress is able to resolve the dispute over FY 2019 federal spending that has raised the specter of a partial government shutdown. A continuing resolution that's partially funding the government is to end at midnight Friday. President Donald Trump would need to renominate Carr and Starks for the Senate to reconsider them in 2019.

Manchin noted his overall dissatisfaction with FCC collection of MF-II data for West Virginia. A Manchin aide said the senator is seeking “a firm timeline” from the FCC on its release of the MF-II funds. Manchin challenged the MF-II map in late November (see 1811280059).

Sullivan told reporters he's “not sure” if he will lift his hold on Carr this week but said the RHCP commitments FCC Chairman Ajit Pai made in letters released Friday to Sullivan and Sen. Lisa Murkowski, R-Alaska, constitute “good progress” toward a resolution. Pai steps that he and Sullivan discussed during a November meeting (see 1811160043) include new rules for RHCP in 2019, likely during the first half. “We're trying to finalize this, so I think we're close,” Sullivan said. Pai's letter “is helpful” and “did have a lot.”

Outgoing Senate Commerce Committee Chairman John Thune, R-S.D., and Senate Communications Subcommittee Chairman Roger Wicker, R-Miss., separately told us they're concerned about the ongoing holds. They stopped short of saying there's no chance of confirming Carr and Starks this year. “We'd like to see” an end-of-year confirmations package that includes the nominees, Thune said.

“I don't understand [Manchin's] hold because he wants the mapping to dictate the dollars that go out” via MF-II, “but he wants the dollars to still go out under” MF-II even though the FCC has delayed the funding process while it investigates whether wireless carriers submitted incorrect broadband coverage maps (see 1812070048), Thune said. “It's a weird hold and objection.” Manchin's hold is “unnecessary” given the FCC's current investigation, though “I've not talked to” Manchin about his thought process, Wicker said.

Manchin's hold is viewed as making it more difficult for the Senate to confirm Carr and Starks this year. “Magical things can happen right before the end of a Congress,” so “don't count out Carr and Starks yet," said Cooley's Robert McDowell. “In the dark of night, a lot of deals get cut,” and there are “bigger cross-currents” in the Senate given the government shutdown talks. It's “possible to get agreement on lesser matters such as nominations” amid shutdown negotiations “because there are senators sitting around with nothing else to do,” he said.

Free Press Policy Director Matt Wood couldn't predict whether Carr and Starks still have a chance of being confirmed in this Congress but the group generally believes holds on nominees are “not the best way to make a point” about policy concerns. “While this could take a while, it could also shake loose based on factors that the communications bar and lobbyists don’t really see,” he said. A telecom lobbyist who focuses on Democratic lawmakers said it's unlikely Pai “can resolve Manchin's concerns to his satisfaction” in the limited time the Senate is likely to remain in session.

Starks supporters are growing increasingly concerned Senate leaders won't apply maximum pressure to end the holds on Carr because there isn't an immediate danger in a delay in confirming him and Starks will imperil status quo operations at the FCC. “There is no longer any interest in keeping agencies properly staffed simply to ensure they function properly,” said Public Knowledge Senior Vice President Harold Feld. “It is still entirely possible that Stark gets confirmed along with numerous other appointees if, or when, a budget deal gets reached. If that doesn't happen, then both Starks and Carr will need to be renominated.”

Republicans “do need to get action on Carr next year, so there is some risk in delaying Starks for too long,” said Georgetown Law Institute for Public Representation senior counselor Andrew Schwartzman. “There is still a GOP majority even with Starks, so there isn't a lot of reason to make a big fuss.”

Whether confirmation happens this year will be “a test of how far Congress has deteriorated,” said Michael Copps, at Common Cause and, like McDowell, a former FCC commissioner. “In the not-so-olden days, there’d be a package and a deal and voila, confirmation. Now with shutdowns possible, retired and defeated members stampeding for the exits and partisanship in the saddle, it might be four members till springtime.” The Senate's confirmation process “is deeply broken, going well beyond the FCC,” said Georgetown Center for Business and Public Policy Project Director Larry Downes. “There's no indication it's going to be fixed any time soon. Still, anything can happen.”