O'Rielly Reconfirmation Likely Delayed to at Least September

A Senate block on FCC Commissioner Mike O’Rielly is likely to delay reconfirmation until at least after Congress’ upcoming August recess and potentially until after the November election, lawmakers and lobbyists said in interviews last week. Armed Services Committee Chairman Jim Inhofe, R-Okla., placed a hold last week on O’Rielly that he said will last until the commissioner publicly “states that he will vote to overturn” the order approving Ligado’s L-band plan (see 2007280039). President Donald Trump nominated O’Rielly in March to a term ending in 2024 (see 2003180070).

“The recess begins” Aug. 10, so “I doubt” Inhofe’s concerns will be resolved soon enough to ensure Senate confirmation of O’Rielly before the four-week break begins, Commerce Committee Chairman Roger Wicker, R-Miss., told us. Senate GOP leaders had planned before Inhofe’s hold to fast-track O’Rielly’s confirmation either last week or this via unanimous consent, communications lobbyists noted.

“We’ve got until the end of the calendar year” to confirm O'Rielly, so there’s no need to be concerned about the current timeline, Wicker said. O’Rielly’s current term ended in June 2019 and he can remain until this Congress ends at the beginning of 2021. “I’m optimistic we can get” Inhofe’s concerns “ironed out” in time to confirm O’Rielly during this Congress, Wicker said. Inhofe “gave me the senatorial courtesy of telling me” about the hold before announcing it and “he’s handling it very professionally.”

Inhofe told us he decided a hold is necessary because the anti-Ligado language he attached to the Senate-passed FY 2021 National Defense Authorization Act (S-4049) addresses only DOD’s role (see 2006110026). “The FCC’s got to weigh in on this” and “clean up their own act,” Inhofe said. “They’ve got to know that all the military, all the airlines, all industry is opposed to” Ligado's plan.

Inhofe noted he supported O’Rielly’s 2014 confirmation, emphasizing the extraordinary circumstances behind the Ligado decision required more legislative action. “This is the first time” all five commissioners have “come together to do something they shouldn’t have done” since O’Rielly joined the commission, Inhofe said. He’s also been working on the Recognizing and Ensuring Taxpayer Access to Infrastructure Necessary (Retain) for GPS and Satellite Communications Act, which would require Ligado pay costs of any GPS user whose operations are hurt by the company’s L-band use (see 2006220055).

Armed Services ranking member Jack Reed, D-R.I., told us he doesn’t have “any plans” to join Inhofe’s hold, despite agreeing with the committee chairman about the need to roll back the order. He hopes “what we’re trying to do” via the NDAA process and “asking the FCC to review” its decision will be effective. Some House Appropriations Committee members floated the idea of attaching a rider to a likely continuing resolution to extend government funding past Sept. 30 to pause implementation of Ligado’s plan if the FCC decides not to grant NTIA’s reconsideration petition (see 2007150062).

Other Factors

Senate Communications Subcommittee Chairman John Thune, R-S.D., told us before Inhofe’s hold he doesn’t believe opposition to O’Rielly from four top Senate Commerce Democrats earlier this month will make it problematic to reconfirm the commissioner. Commerce ranking member Maria Cantwell of Washington, Communications ranking member Brian Schatz of Hawaii, Richard Blumenthal of Connecticut and Amy Klobuchar of Minnesota asked to be recorded as no votes (see 2007220066).

O’Rielly “enjoys broad support among Republicans,” which should make it easy for the majority-GOP Senate to confirm him, Thune said. “I certainly think that people recognize his expertise and I think he’s been a terrific” commissioner. “I hope” Cantwell and the other objecting senators don’t decide to block O’Rielly on the Senate floor, but if that happens “we will plow through” those holds “and get him confirmed,” Thune said.

Cantwell, Schatz and Blumenthal didn’t rule out placing holds on O’Rielly given their ongoing opposition to his reconfirmation. Klobuchar’s office didn’t comment.

“I’ll certainly oppose” O’Rielly on the floor, but there’s no decision about whether Democrats will seek a hold on the commissioner or force a floor vote, Cantwell told us. She again cited her concerns about the letter O’Rielly sent Trump in April seeking intervention to force DOD to free up more mid-band spectrum for 5G (see 2004090047), which she mentioned during the Commerce markup. Cantwell also cited O’Rielly’s comments at the 2018 Conservative Political Action Conference in favor of Trump’s re-election, which the Office of Special Counsel found violated the Hatch Act (see 1805010083).

O’Rielly “will be subject to the normal wrangling” among Senate leadership over which nominees will require floor confirmation votes and which can move via unanimous consent, Schatz said. He’s opposed to O’Rielly because “he promised me that he would be nonpartisan” before his original 2013 confirmation (see 1310310057) “and I’ve seen no evidence of that.” O’Rielly “wants to cap USF payments” (see 1906250011) “and I just can’t abide that,” Schatz said.

“I haven’t made any decision yet” about placing a hold, “but essentially I think we need a stronger voice and vote for consumer interests” at the FCC “and someone who will stand up to the special interests,” Blumenthal said.

Sen. Dan Sullivan, R-Alaska, said he hasn’t committed not to block O’Rielly over his ongoing concerns about how the FCC approach to the USF Rural Health Care Program affects his state. Sullivan temporarily blocked Senate confirmation of Commissioner Brendan Carr in 2018 over the issue (see 1809120056). He again brought it up at O’Rielly’s confirmation hearing but directed his criticisms at Pai. O’Rielly “has actually been quite strong” on RHCP “and his policies are actually aligned with the way the law is, unlike” Pai’s approach, Sullivan said. “That’s very useful.”

Lame Duck?

Inhofe’s hold and the Senate Commerce Democrats’ opposition have a combined potential to delay things until a possible lame duck session, though lobbyists said much depends on the extent to which Majority Leader Mitch McConnell, R-Ky., decides to exert his influence. Some of O’Rielly’s supporters are pushing for McConnell to intervene and push Inhofe to drop his objection, since McConnell is a booster for the commissioner (see 1307170025). McConnell’s office didn’t comment.

McConnell will also be in control of deciding whether to devote floor time to a debate and roll call vote on O’Rielly if Democrats oppose confirmation by unanimous consent, as now appears likely, lobbyists said. The environment for a floor fight during the lame duck won’t be clear until after the election, lobbyists said.

Inhofe’s action is continuing to draw derision among some communications sector officials. The block is “clearly a manipulative effort” by Inhofe to “get his way,” said R Street Institute Fellow Jeffrey Westling. “He could introduce legislation tomorrow’ to pause the FCC decision, but “he’s not doing that because he doesn’t have the support on the Hill” to pass such a measure. Westling said that it’s understandable “there are going to be differing opinions,” and what lawmakers “shouldn’t be doing is holding up a reconfirmation just because you disagree with how this turned out.”

It’s a “serious escalation” by Inhofe “in what is at its heart a jurisdictional dispute between the Armed Services and Commerce committees on FCC issues, said New America’s Open Technology Institute Wireless Future Project Director Michael Calabrese. It’s “highly unusual,” especially since O’Rielly “as a commissioner for an independent regulator” has a responsibility to not “promise a vote in advance on a political basis.”