O'Rielly Would Back Ligado Stay; Defends Against Partisanship Claims

FCC Commissioner Mike O’Rielly would "give due consideration to a stay” of the order approving Ligado’s L-band plan “if such an item is circulated by” Chairman Ajit Pai, he told Senate Commerce Committee members in response to follow-up questions from his recent reconfirmation hearing. O’Rielly defended the FCC’s approval of the Ligado plan during that hearing (see 2006160062). The committee posted O’Rielly’s responses Monday. Senate Commerce votes Wednesday whether to advance O’Rielly’s renomination to a term ending in 2024. The meeting begins at 9:45 a.m. in G50 Dirksen.

O’Rielly would only support a stay “based on new data or evidence,” he responded to ranking member Maria Cantwell, D-Wash: Only Pai “can initiate a reconsideration order, and I do not get the impression that such an item is being drafted.” Commissioner Jessica Rosenworcel said during a June Senate Commerce hearing she’s also willing to back a stay (see 2006240069). Cantwell’s questions highlighted her view that the FCC “rejected the executive branch’s concerns and related technical studies both from the government and the private sector showing that the precision and effectiveness of GPS could be impaired.” The FCC “relied on competing technical studies” and “its own conclusion that the government studies measured the wrong things.”

Cantwell wouldn’t say whether she will back O’Rielly’s reconfirmation, noting during a Tuesday interview that she was on her way to a briefing on items on the committee's Wednesday agenda (see 2007160054). Several officials and lobbyists we spoke with believe O’Rielly is likely to easily advance out of committee and unlikely to get opposition on the floor. “I’m hopeful and confident” the Senate will confirm O’Rielly to the new term “by the August recess,” said Cooley’s Robert McDowell, a former FCC commissioner.

The FCC “based its decision on the information submitted into the record, as required by the Administrative Procedures Act,” O’Rielly said. DOD and other federal agencies opposed to Ligado “relied on testing and analysis that the Commission concluded was not directly correlated to measuring harmful interference and was technically flawed.” The Commerce and Transportation departments “to the best of my knowledge” didn’t provide “specific data on the percentage of deployed and operational GPS [receivers] that could allegedly be subject to harmful interference from Ligado’s future terrestrial operations at the power levels authorized,” he said.

It’s “always advisable to gain consensus with all affected parties, especially Federal agencies, whenever possible,” O’Rielly wrote. “In certain circumstances, however, the Commission has to consider all the relevant facts and decide issues regarding spectrum bands allocated for commercial use notwithstanding the objections of any particular Executive Branch Department or agency.” FCC engineers “are engaging with the engineering staff of affected Federal agencies on data points not previously disclosed."

O’Rielly repeated to Sen. Richard Blumenthal, D-Conn., his “deep reservations” about “the FCC’s statutory authority to issue rules” President Donald Trump sought in a May executive order directing NTIA petition for regulations defining the scope of Communications Decency Act Section 230 (see 2005280060). He still committed to “carefully” consider “the record and all relevant issues should NTIA submit a petition for rulemaking.” Trump “is fully within his rights to seek an examination of this statute and any other he deems appropriate for purposes of carrying out his responsibilities,” O’Rielly said. “Clearly, certain high-technology companies apply content moderation in a way that is unfairly discriminatory to many groups, especially conservative Americans.”

O’Rielly defended what Senate Communications Subcommittee ranking member Brian Schatz, D-Hawaii, called the commissioner’s “record of partisanship,” including an appearance at the 2018 Conservative Political Action Conference that the Office of Special Counsel found violated the Hatch Act (see 1805010083). O’Rielly’s partisan actions are “disconcerting, particularly since your job is to work on important telecom issues that impact our country in a bi-partisan way,” Schatz said.

The CPAC appearance and other actions Schatz cited “come with extenuating circumstances and require further explanation,” O’Rielly said. “My extensive record during my entire time at the Commission should distinguish me as perhaps one of the more bipartisan Commissioners among recent members.”

Four entities reported lobbying Capitol Hill on FCC nominations during Q2. They were Creative Government Solutions on behalf of GCI, Holland & Knight on behalf of Comcast and Kevin Curtin for both the Association of National Advertisers and Zenith. That’s level with the number that lobbied on nominations in Q1 and during Q2 2019. Facebook, Amazon and Comcast were among the tech and telecom sectors’ top lobbying spenders for Q2 (see 2007210053).