FCC Nominees Being Held Hostage By GOP

Susan Oglesby knows what it’s like to have her career derailed by Capitol Hill politics.

In 1987, Ronald Reagan nominated communications attorney Oglesby (then Susan Wing) for a Republican seat at the FCC, but her nomination got tangled up in a fight between Senate Democrats and the administration.

Senate Commerce Committee Chairman Ernest Hollings (D-S.C.) blocked action on her nomination along with that of another FCC Republican, Bradley Holmes, for reasons that had nothing to do with their merits.

When Reagan left office in 1989, the nominations were forgotten. Oglesby and Holmes never got their seats. “At the time, my frustration and disappointment were all-consuming,” Oglesby recalls.

A quarter of a century later, it looks as if history might repeat itself.

Late last year, President Obama nominated Jessica Rosenworcel and Ajit Pai to fill two vacancies on the five-person commission.

Democrat Rosenworcel would replace her one-time boss, Michael Copps, who retired in January, and Pai would take the seat vacated by Meredith Atwell Baker, who quit to become a lobbyist for Comcast last year.

But both nominations are hung up in the Senate, again for reasons that have nothing to do with the nominees themselves.

“They are at risk,” says one Hill insider. “It is certainly possible they could be in limbo for a very long time.”

Last December, the Senate Commerce Committee unanimously approved their nominations. But Iowa Republican Senator Charles Grassley is blocking a floor vote. Under Senate rules, any senator can place a hold on a nomination.

Grassley says he will keep his hold in place until the FCC releases documents concerning a waiver it granted to LightSquared, a company planning a wholesale wireless broadband service. Grassley believes the FCC acted hastily and with inappropriate favoritism toward the company.

FCC Chairman Julius Genachowski has refused to turn over any documents to Grassley. And even though the FCC announced it was rescinding the waiver for LightSquared because of tests that showed the service would interfere with GPS, Grassley is keeping up the pressure.

“Now that the interference issue is settled, we need to find out more than ever why the FCC did what it did,” he says in a statement. “The agency put this project on a fast track for approval with what appears to have been completely inadequate technical research.’’

Grassley is not Pai’s and Rosenworcel’s only problem. Some Senate Republicans are now opposing any presidential nominations.

They are furious about the recess appointments President Obama made on Jan.4 to the Consumer Financial Protection Bureau and the National Labor Relations Board.

Also, as the two nominations drift more deeply into a presidential election year, Republicans are increasingly reluctant to confirm any Obama nominees. If a Republican beats Obama in November, he may have his own ideas for the plum posts.

In any event, the two nominees have strong credentials for the FCC job, according to FCC watchers.

Rosenworcel, 40, is a former top FCC aide and now the senior communications counsel on the Senate Commerce Committee. She has the backing of her current boss, Commerce Committee Chairman Jay Rockefeller (D-W.Va.).

Rosenworcel spent eight years at the FCC, joining the agency in 1999 as an attorney in the policy division of the Common Carrier Bureau and later working as a legal counsel to the chief of the Wireline Competition Bureau.

In 2003, she moved to Commissioner Copps’ staff, advising him on competition and universal service matters and eventually became his senior legal adviser. She left the agency for the Hill in 2007.

A 1997 graduate of New York University Law School, she spent two years as a communications associate at Drinker Biddle & Reath prior to the FCC. She earned a BA from Wesleyan University.

Among her duties for the Commerce Committee was helping to draft Sen. Rockefeller’s bill authorizing the FCC to conduct incentive auctions, a measure that broadcasters were deeply involved in.

While at the commission, Rosenworcel was Copps’ key staffer dealing with wireline and media policy issues, including the controversial broadcast ownership and localism proceedings.

Copps was an outspoken and effective opponent of relaxing the broadcast ownership rules and he was the driving force behind the agency’s so-called push to impose local programming and ascertainment requirements on TV and radio stations.

Pai, 39, is a partner at Jenner & Block where he’s been since his departure from the FCC last year. He is said to be working on issues other than communications to avoid any conflict-of-interest issues.

During his years at the FCC (2007-11), he worked in the Office of General Counsel, serving as an associate general counsel, deputy general counsel and as a special adviser to the general counsel.

His tenure there spanned the chairmanships of Republican Kevin Martin as well as the current administration under Democrat Genachowski.

Before the commission (2005-07), Pai was chief counsel to the Senate Judiciary’s Subcommittee on the Constitution, Civil Rights and Property Rights, chaired by former Republican Senator Sam Brownback of Kansas.

During an earlier stint in the Senate (2003-04), he was deputy chief counsel to Judiciary’s Subcommittee on Administrative Oversight and the Courts, chaired by Jeff Sessions (R-Ala.).

He was senior counsel for a year (2004-05) at the Justice Department’s Office of Legal Policy. Pai also spent some time (2001-03) as an attorney for Verizon.

He is a 1997 law school graduate of the University of Chicago and has a BA from Harvard.

In 2009, he was a contender for the FCC’s open Republican seat but failed to get the nomination. It went to Baker instead.

At that time, a letter signed by 12 Senate Republicans asked Senate Minority Leader Mitch McConnell to recommend Pai for the FCC post.

“We believe that Ajit’s experience, aptitude and commitment to free market, pro-competitive principles make him an ideal choice to fill the current Republican vacancy on the FCC,’’ their letter stated.

Among the signatories: Brownback, Pat Roberts (Kan.), Arlen Specter (Pa.), Orrin Hatch (Utah); Jon Kyle (Ariz.); David Vitter (La.); Jim DeMint (S.C.); Sessions; John Thune (S.D.); Lisa Murkowski (Alaska), and Mel Martinez (Fla.).

Grassley also signed that letter.

During his time at the commission, Pai dealt with numerous issues, including the Sirius-XM merger and the media ownership review under Chairman Martin. That review led to the adoption of new, less burdensome newspaper-broadcast crossownership rules.

Pai also defended the commission’s cable home wiring rules before the U.S. Court of Appeals in Washington. The FCC won the case in 2008, which paved the way for AT&T, Verizon and satellite providers to have access to cable wiring behind sheet rock in apartments.

Under Chairman Genachowski, he worked on revisions to the FCC’s ex-parte rules, resulting in new requirements that notices of commission meetings be filed more quickly and with more details.

Rosenworcel and Pai get good marks from those who have worked with them within the small Washington world of communications policymaking.

“Substantively, I didn’t always agree with [Rosenworcel], but we worked well together and I have great respect for her,’’ says Dan Gonzalez, a former chief of staff to Martin, who is now a managing director at Mercury/Clark & Weinstock.

Gonzalez says Pai “is smart, has a very good disposition and is certain to get along with his colleagues.”

But that doesn’t mean there won’t be policy disagreements, even with fellow Democrats.

Rosenworcel has an independent streak, according to sources who know her well. “I don’t think you can necessarily count her with the chairman on every vote,” says a broadcast industry source.

And don’t expect her to be a “crusader’’ like Copps, says Media Access Project’s Andy Schwartzman. “She certainly learned a lot from Commissioner Copps. But she is not Commissioner Copps…. She’s her own person.”

Another TV industry source agrees. “She is very careful, very measured and very thoughtful. She’s not one to make flamboyant statements. That’s not her personality. She’ll be regulatory, but pragmatic. I think she will approach broadcaster issues from a different starting point than Copps.”

Still, in general, the FCC watchers believe Rosenworcel’s views on broadcast regulation won’t stray too far from those of Copps or Rockefeller. For broadcasters, that means she is unlikely to go along with anything that would speed media consolidation and is probably looking for more in the way of well-defined public interest obligations.

During her Senate confirmation hearing, she underscored her commitment to the public interest. “[I]t is absolutely essential that the FCC honor the values that are at the core of the Communications Act.’’ Among other things, she said, that means “a fierce commitment to consumer protection.’’

She told Senate Commerce Committee members she did not favor reviving the Fairness Doctrine. (Pai also shares that view.)

Asked how the FCC could protect children, she said some TV programming “is not so enlightening or not so healthy. It is incumbent upon the FCC — and frankly all of us — to make sure that we both provide quality content, foster it and stimulate the good stuff for kids, and that we also help parents be good parents by providing them with the tools to protect their children.’’

Rosenworcel is married to Mark Bailen, a First Amendment and libel lawyer at Baker & Hostetler. In 2004, he co-authored a paper for the Media Institute that criticized the FCC’s indecency policy.

“Dreary or shocking as it may be to tolerate the lapses or leaps into poor taste of our entertainment moguls, government regulation of the ‘indecent’ threatens us much more than Janet Jackson or Bono,’’ the paper says.

Some sources believe that Rosenworcel could succeed Genachowski as chairman of the agency. She would be the first woman to hold the job.

“She could handle it. She’s no pushover. She’s not going to be warm and fuzzy like Kathleen Abernathy or Debbie Tate. She’s got more steel in her back,” says an FCC insider.

Pai is considered less politically astute than his fellow nominee. “He’s very friendly … maybe too nice, but he’ll learn,’’ says the agency insider.

And Pai’s Senate backers are counting on him taking a more deregulatory stand. Pai’s “support of a free-market approach,’’  would bring a “much-needed perspective to the commission’s work,” they wrote in the 2009 letter.

“Certainly, based on his past experience and his nomination hearing, I do think that he comes at issues from a free-market perspective,” says Howard Waltzman, a telecom lawyer with Mayer Brown.

“He’ll also be very open to listening to all parties and really assessing what the appropriate commission action is,” he adds.

“Not only does he know how the FCC runs, but he’s particularly attuned to the legal basis for FCC decisions, having worked in the general counsel’s office. I think that’s a great attribute for a commissioner.”

Pai’s opening remarks during his Senate confirmation hearing did not reveal any specific deregulatory bent. Indeed, he said, “I would not bring an ideological mission to the agency.’’

He also made a point of saying he would be deferential to Congress. “Having worked in the Senate, I will bring to the commission a firsthand understanding of, and appreciation for, congressional prerogatives.”

Like Rosenworcel, Pai expressed concern about media content at the hearing. “It’s important that the FCC do what it can to give parents knowledge about the technologies that are out there about the tools that are at their disposal to prevent their children from viewing inappropriate content or hearing inappropriate words.”

As Pai and Rosenworcel wait it out, they might take some comfort from Oglesby.

She says not getting the FCC job was probably the best thing that ever happened to her.

“I now have a house in Italy that I enjoy with my husband,” the almost-commissioner says. “We have a dog there and a vineyard in a wonderful little town that we spend half the year in. None of that would have happened if I had enhanced my regulatory law career by going to the FCC — absolutely none of it.

“Maybe the nominees today won’t understand that, but they will in a couple of decades. Life is not just about the FCC.’’