O'Rielly Advancement May Come Soon; House Commerce Markup Wednesday

Lawmakers we spoke with are eyeing more communications policy issues they hope to address before the August recess beyond the push to include telecom funding in COVID-19 legislation. Senate Commerce Committee leaders hope to advance the reconfirmation of Mike O’Rielly to an additional five-year FCC term. The House Commerce Committee plans a markup Wednesday, a spokesperson told us Monday evening. It's expected to include telecom bills that have been on hold since the pandemic disrupted Capitol Hill operations in March (see 2003130073)

The Senate Appropriations Financial Services Subcommittee is close to scheduling additional telecom policy hearings. Both chambers are grappling with language in their versions of the FY 2021 National Defense Authorization Act aimed at hindering Ligado’s L-band plan (see 2007020053). Congress is to return July 20. The House plans to recess July 31 for five weeks; the Senate leaves Aug. 10.

Senate Commerce could vote on O’Rielly’s reconfirmation as soon as July 21, though that’s a best-case scenario, said a Senate Republican aide. President Donald Trump nominated O’Rielly in March to a new term ending in 2024 (see 2003180070). Senate Commerce gave O’Rielly and other nominees who testified at a June hearing (see 2006160062) until Tuesday to answer members’ follow-up questions, which precluded an earlier vote, the GOP aide said. Senate Commerce and the FCC didn’t say whether O’Rielly had yet submitted those answers. Lobbyists believe a late July vote is highly likely because Senate Commerce leaders want to clear the committee’s backlog of pending nominees before the August recess.

Senate Commerce ranking member Maria Cantwell, D-Wash., told us before the recess she wanted to wait until after she received O’Rielly’s responses before deciding whether to support reconfirmation. O’Rielly drew little attention at the committee’s June hearing beyond addressing questions about FCC approval of the Ligado plan. It’s deemed unlikely Cantwell or other Democrats will actively oppose advancing O’Rielly.

Senate Appropriations Financial Services Chairman John Kennedy, R-La., told us he’s planning three hearings before the recess, including one focused on the implications of insider trading allegations against two Intelsat investors (see 2004080064) on the FCC’s plans for auctioning spectrum on the 3.7-4.2 GHz C band. That panel is likely to also touch on the details of a Nov. 5 meeting between Intelsat CEO Stephen Spengler and a senior FCC lawyer on the C-band proceeding, Kennedy said. The insider trading claims and Intelsat’s bankruptcy factored into a June subcommittee hearing (see 2006160030).

The other two hearings will focus on rural broadband and contraband prison cellphones, Kennedy told us. Both issues drew attention at Senate Appropriations Financial Services’ June hearing (see 2006160049). FCC Chairman Ajit Pai got criticism then from some subpanel members on the commission’s broadband mapping practices and urged Congress to fully fund implementation of the Broadband Deployment Accuracy and Technological Availability Act broadband mapping law (S-1822). The contraband cellphones hearing responds to concerns from Sen. James Lankford, R-Okla., Kennedy said.

House Bills

Many details of House Commerce’s markup remain under discussion, lobbyists said. House Communications Subcommittee Chairman Mike Doyle, D-Pa., teased the potential hearing during an appearance earlier this month on C-SPAN’s The Communicators (see 2007090069). House Commerce Chairman Frank Pallone, D-N.J., wants the markup to tackle 20-30 bills that leadership determine are noncontroversial and have drawn a bipartisan consensus, lobbyists said. The aim is for the House to pass any measures Commerce clears as stand-alone bills, lobbyists said.

Several of the bills under consideration advanced through House Communications in March (see 2003100067. The likeliest candidates to advance to next week’s markup include the Don’t Break Up the T-Band Act (HR-451), Expanding Broadcast Ownership Opportunities Act (HR-3957) and National Suicide Hotline Designation Act (HR-4194), lobbyists said. HR-451 would repeal a provision of the 2012 spectrum law that mandates public safety move off the 470-512 MHz T band by 2021. HR-3957 would restore the minority tax certificate. HR-4194 would designate 988 the suicide prevention hotline number and gives the FCC one year to finish upgrade of the legacy switches to support it (see 1908200070).

Rep. G.K. Butterfield, D-N.C., told us he has “a commitment” from House leadership that his HR-3957 “will be passed before the August recess,” likely as a stand-alone bill. He was unable to convince House leaders to attach his HR-3957 to the Moving Forward Act infrastructure legislative package (HR-2) the House passed just before the current break. HR-3957 is one of several media diversity bills that supporters believe have a better chance of advancement because of the amplified national conversation about racism (see 2006290057).

Pallone’s insistence on a markup of only bipartisan legislation would appear to preclude movement on some other high-profile bills House Communications advanced, including the Clearing Broad Airwaves for New Deployment (C-Band) Act (HR-4855) and Reinforcing and Evaluating Service Integrity, Local Infrastructure and Emergency Notification for Today’s (Resilient) Networks Act (HR-5926), lobbyists said. House Communications Republicans allowed both measures to advance out of the subpanel despite concerns. HR-4855 would allocate most auction proceeds to fund telecom projects (see 1910240046). HR-5926 would require FCC rulemakings on improving emergency coordination among communications providers and with public safety answering points.

Advancing House Commerce’s telecom legislation is very dependent on “getting meetings scheduled, which is tough because of the circumstances,” Doyle told us before recess. “A lot of this is now in the hands of leadership.” He wanted to be in position “to have some bills ready for floor action, so we can get a lot done” before the next break. “I’m an optimist by nature” in believing a deal with Republicans on HR-4855 is possible, “but obviously [the pandemic] has thrown a wrench into a lot of plans,” Doyle said: “It’s hard to say with any certainty what will happen” with the bill. GOP telecom leaders believe the chance for legislating on C-band money allocations ended long ago (see 2005270034).

Walden

House Commerce ranking member Greg Walden, R-Ore., agreed there’s likely to be “another big markup before August,” and “it will be up to [Democratic leadership] to decide what they want on the plate.” No sitting members of Congress have “tried to govern” in the situation caused by the current pandemic, “so I have some empathy toward [Pallone] and his team as they’ve been figuring out how to do this,” Walden told us. “There’s a lot you hoped could have been done that hasn’t been worked on” much since March, “and I’m sure [the Democrats] are frustrated, too.” Since at least some members of House Commerce are likely to appear only via webcam at a markup, “you pretty much have to work things out” on any legislation that the committee hopes to advance, he said.

Walden remains leery about the Armed Services committees’ attempts to advance the FY21 NDAA (HR-6395/S-4049) with anti-Ligado language intact. “There are some pretty strongly held views” in opposition to the L-band plan “and we’re not going to make or break 5G over the amount of spectrum” that will be repurposed under Ligado’s proposal, “but when I look at the science behind it all … it’s really frustrating” Armed Services members are attempting to undermine the FCC’s decision, he said. House Commerce “doesn’t go around and mess with weapons systems.”

House Armed Services Chairman Adam Smith, D-Wash., emphasized the committee is deferring to Commerce on FCC aspects of the Ligado decision because that committee didn’t waive its jurisdictional rights and HR-6395 doesn’t impinge on those aspects of the L-band issue. HR-6395 would bar DOD funding to “retrofit any [GPS] device or system" to "mitigate interference” from Ligado’s planned “commercial terrestrial operations" (see 2007010070).

Walden believes HR-6395’s language is essentially an “end-around” aimed at skirting House Commerce’s jurisdiction. “What they do is set up a situation where you can never fulfill making this spectrum available,” he said. “We’ll see where it all goes” once HR-6395 comes to the House floor. “We can work this out on spectrum issues” this year, Walden said. He and Pallone got language removed from the FY 2020 NDAA last year that would have directed DOD to work with the FCC and NTIA to establish a spectrum R&D program aimed at sharing among 5G technologies, federal and nonfederal incumbent systems (see 1912120061).