O'Rielly's FCC Future in Limbo

FCC Commissioner Mike O’Rielly’s future remains in limbo more than a month after President Donald Trump withdrew his renomination (see 2008030072), officials and lobbyists told us. Republican senators returned Tuesday from the August recess without a clear outcome from their push for Trump to reverse course (see 2008060062). Officials we spoke with indicated the White House hasn’t settled on a new candidate for the GOP seat.

Senate Majority Whip John Thune, R-S.D., told us he hadn’t “heard anything” from the White House on O’Rielly since he and other top GOP lawmakers urged Trump in early August to reconsider the nomination withdrawal. “I haven’t heard whether they’re going to move” forward with another person, he said. “If they submit somebody new, we’ve got a long process to go through” before Senate confirmation (see 2008040061). The White House didn’t comment Wednesday.

“My sense is that we have not made any headway” in persuading Trump to resurrect O’Rielly’s nomination, said Senate Commerce Committee Chairman Roger Wicker, R-Miss., in an interview. “That’s a disappointment. But we’ll see” since “I haven’t received any official notification” the administration formally ruled out bringing O’Rielly back. “You’d expect” the administration would make an “imminent” announcement about a replacement if it had someone in mind, Wicker said.

The White House has interviewed potential candidates (see 2009010065). An announcement of a new nominee could come within weeks, though administration officials also haven’t settled on someone to recommend to Trump, lobbyists said. Trump officials were earlier believed to be eyeing NTIA senior adviser Carolyn Roddy to replace O'Rielly, but have since cooled to that idea (see 2009010065).

Former Trump administration telecom officials and Senate Commerce aides appear to be leading contenders absent an O’Rielly renomination, lobbyists said. They include: Senate Commerce Deputy Policy Director Kelsey Guyselman, an ex-White House aide; World Radiocommunication Conference 2019 Ambassador Grace Koh, also an ex-White House aide; Senate Communications Subcommittee GOP Policy Director Olivia Trusty; and Senate Commerce Deputy GOP Staff Director Crystal Tully.

Thune emphasized that Republican senators’ focus remains ensuring O’Rielly stays. Tully “will be a great commissioner some day, but I hope [the White House finds] a way to keep O’Rielly there” because “he’s been doing a nice job,” Thune said. O’Rielly has long gotten strong support from Thune, Senate Majority Leader Mitch McConnell, R-Ky., and others (see 1307170025).

O’Rielly has shown no signs he will leave the FCC early or start recusing himself. Recusals will become more likely as his departure nears, former officials said. O’Rielly can stay until Congress adjourns sine die, likely in early January, absent Senate confirmation of a replacement. O’Rielly’s path in the months ahead will depend partly on whether he believes there’s a possibility either Trump or Democratic presidential nominee Joe Biden will renominate him during the next Congress, lobbyists said.

If O’Rielly “needs to start looking at other opportunities, that will make moving things through the commission much more difficult,” said International Center for Law & Economics Associate Director Kristian Stout.

This administration’s “sudden but half-hearted attempt to replace O’Rielly, a respected free-market commissioner who has helped deliver on the administration’s deregulatory agenda, seems to have backfired,” said Mercatus Center Senior Research Fellow Brent Skorup. “The FCC is hamstrung not only by the distraction, but by the possibility” O’Rielly will “recuse himself.”

“Mike has a tremendous amount of respect among Republican Senate leadership, so no one should rule out any future surprises,” said Cooley’s Robert McDowell: “He loves his current job, does not need to leave it before sine die, and there is no evidence thus far that he will depart early.”

“Hopefully, the White House will understand how important it is to have a principled, consistent voice like" O'Rielly at the FCC "regardless of what happens in the election,” said R Street Institute Technology and Innovation Policy Fellow Jeffrey Westling. If O’Rielly “starts exploring his options post-FCC, then inevitably he will run into conflict and will have to recuse himself. There is still much more work for” FCC Chairman Ajit Pai “to complete before the end of the year, and it will be important that recusals do not create [political] deadlock.”

O’Rielly’s Twitter presence has dropped off since Trump pulled his renomination. O’Rielly tweeted eight times Aug. 3, the day of the announcement, about a range of topics germane to the FCC, including esports, 911 fee diversion and 5G. In the more than a month since, he tweeted five times total, including twice about NAB President Gordon Smith’s hospitalization and once about spectrum sharing with federal agencies. O’Rielly tweeted more than 30 times during the month preceding the withdrawal, usually daily.

O’Rielly’s most recent tweet prior to Wednesday, on Aug. 21, said that rather than create a new agency to oversee tech companies, existing agencies should be revised. That’s a topic tangentially connected to the administration’s push for FCC regulations defining the scope of Communications Decency Act Section 230 (see 2007270070). O’Rielly’s reluctance to publicly back OK of the Trump-sought NTIA Section 230 petition is considered the main reason his renomination was revoked (see 2008040061). “Review & reform current regulatory agencies? Absolutely!" the commissioner tweeted. "Much of existing reg. requirements on legacy providers (e.g., broadcast, cable, telecom) needs to be thrown overboard in the process.” O'Rielly tweeted Wednesday about a meeting with ACT|The App Association.