O'Rielly Seen Having Senate Republicans' Backing for Renomination to FCC

FCC Commissioner Mike O'Rielly appears to have the support of several top Republicans to remain for another term, a factor officials told us makes him strongly favored for renomination. One stumbling block appears to be the timeline for President Donald Trump to re-up him amid a souring confirmations atmosphere on Capitol Hill caused by the House impeachment inquiry and 2020 presidential campaign. O'Rielly's term expired June 30 (see 1412170031). He can remain until this Congress ends at the beginning of 2021.

Senate Communications Subcommittee Chairman John Thune, R-S.D., is among the Capitol Hill Republicans backing O'Rielly for another full term. “He's done a great job, he's been a terrific commissioner and I certainly endorse the idea” of keeping him there for another five years, Thune told us.

Senate Commerce Chairman Roger Wicker, R-Miss., stopped short of officially endorsing O'Rielly, noting “he's been a good commissioner.” It “will be up to” Trump to decide since “he's the one who renominates” the commissioners, but Wicker will “look quite favorably” on any Trump nominee to the seat. Wicker has been eyeing Senate Commerce Deputy GOP Staff Director Crystal Tully to take the next vacant Republican FCC seat but is unlikely to seek to replace a sitting commissioner who wants to be renominated, said a telecom lobbyist who monitors Hill GOP politics. Tully has also been mentioned as a potential pick to permanently replace former NTIA Administrator David Redl, who resigned in May (see 1905090051).

Sen. John Cornyn, R-Texas, who O'Rielly worked for before joining the FCC, backs a new term. O'Rielly has “been outstanding” at the FCC, Cornyn said. He deserves "another term if he wants it.” O'Rielly said earlier this year he's interested in further time on the commission (see 1902130043).

“I hope [O'Rielly's] renominated,” said House Commerce Committee ranking member Greg Walden, R-Ore. “He's done a great job, and he'd do a great job going forward. I hope he continues to serve” at the FCC.

O'Rielly is actively pursuing renomination and that process appears to be “moving in the right direction,” but “it's still up in the air,” said a communications sector lobbyist. Trump administration officials haven't given O'Rielly's camp “any assurances” he will be renamed to the commission. A telecom lobbyist described the situation as "murky." The White House didn't comment.

Important to O'Rielly's chances is continued support from Senate Majority Leader Mitch McConnell, R-Ky., lobbyists told us. O'Rielly was McConnell's “pick” for the GOP FCC seat in 2013 (see 1307170025) and “a senior staffer is very close” with O'Rielly, which makes him strongly favored to be Senate Republicans' continued recommended candidate for the role, said a telecom lobbyist who monitors the Hill GOP. McConnell's office didn't comment.

Political Factors

Officials note there won't be an obvious Democratic nominee to pair O'Rielly with for Senate confirmation until Commissioner Jessica Rosenworcel's term expires in June. Republicans could have some incentive to move since if they lose the White House and Chairman Ajit Pai subsequently leaves the commission, they could be stuck with only one Republican commissioner starting in 2021. For the same reason, Democrats could win by opposing O'Rielly's reconfirmation. One lobbyist said the Senate has a lot on its plate: “If it’s going to happen, the administration needs to drop the nomination sooner rather than later.”

O’Rielly has been behind some very successful policy changes, especially revised rules for the citizens broadband radio service band, said former FCC Commissioner Jonathan Adelstein, who faced a yearlong delay in his initial confirmation. O’Rielly “has had a major positive impact,” said Adelstein, now Wireless Infrastructure Association president: “He has a lot of support and he is well connected politically within the Republican Party and the administration.” But winning in the Senate can be difficult, he said. “Lowering the bar to 50 votes helps a little bit because not everyone gets filibustered. But still, most of these nominations are done in a package. It helps when they’re moving packages around to have a lot of support.”

“Broadcasters love [O'Rielly] because of his stand against pirate radio and his support for media ownership reform,” said Fletcher Heald's Francisco Montero. “Some broadcasters call him the new Jim Quello, who was beloved by that industry.” Quello was a former broadcaster and commissioner 1974-1997. Adelstein and others “found themselves in confirmation limbo due to budget disputes or other issues that have nothing to do with their performance,” Montero said.

The lack of an immediate Democratic FCC nominee to pair with O'Rielly “and the relatively short timeline, as well as the general election distractions on the Hill,” could “make this process more difficult than it should be,” said R Street Institute Resident Fellow Jeffrey Westling. Some lobbyists said the Senate could choose to pair O'Rielly with a reconfirmation of Democratic FTC Commissioner Rohit Chopra, whose term expired at the end of September. Others noted there's still a vacant Democratic seat on the Federal Energy Regulatory Commission. Trump recently nominated FERC General Counsel James Danly to a GOP seat on that commission.

“Strange things sometimes happen in presidential election years,” said Andrew Schwartzman, senior counselor at the Benton Institute for Broadband and Society.

“In light of the very real constitutional crises we face from” the Trump administration and the 2020 election being still 12 months away, it's very early to discuss let alone predict confirmation dynamics” through 2020, said Free Press Vice President-Policy Matt Wood. O’Rielly has shown willingness to work with Democrats, but “generally he's done better talking about the rule of law and his independence than he's done in demonstrating those traits.”

“O'Rielly is a popular commissioner with vast knowledge of telecom law and history because of his time working in Congress,” said George Mason University Mercatus Center's Brent Skorup: “I expect the Senate is working to re-confirm him because an unintended lapse only distracts the commissioners from their pro-deployment and spectrum reform priorities.”

Former Commissioner Robert McDowell said O’Rielly is “a strong candidate for renomination and reconfirmation.” O’Rielly's “well known and admired on the Hill and especially by key senators’ on a personal basis,” said McDowell, now at Cooley. “He has also earned the respect of many third-party groups” and he and his two fellow GOP commissioners “are among the most philosophically aligned in the history of the agency. Plus, he has been confirmed twice,” in 2013 and 2014.

“O'Rielly has been an important voice on the commission,” said Mark Jamison, a University of Florida professor who helped the Trump administration organize the current FCC: “He has worked well with his fellow commissioners while maintaining his independence.”