Senate Confirmation of Wheeler, O’Rielly Seen as Critical for Spectrum Auctions

Keep up with the latest developments and legal issues in the telecommunications and emerging technology sectors, with exclusive access to a comprehensive collection of telecommunications law news,...

By Paul Barbagallo  


Following President Obama's nomination of Senate aide Michael O'Rielly to fill a vacant Republican seat on the Federal Communications Commission, the industry that the agency regulates is eager to see the return of a full, five-member FCC with several crucial votes looming, including one on rules for voluntary “incentive” auctions of spectrum.

Since mid-May, the FCC has consisted of an interim chairwoman, Democrat Mignon Clyburn, and only two commissioners, Democrat Jessica Rosenworcel and Republican Ajit Pai.

Tom Wheeler, the president's nominee for FCC chairman in the president's second term, has been waiting for Senate confirmation since May 1; his nomination was approved by the Senate Commerce, Science, and Transportation Committee only last week.

Now, with the O'Rielly nomination, the confirmation process could finally move forward in earnest. Historically, FCC chairmen and commissioners have been confirmed more easily as a package of a Democrat and a Republican.

But because of the Senate's August recess, both Wheeler and O'Rielly may not be ultimately confirmed and sworn in by mid-September or October.

FCC Staff Decisions in Works

“Their coming on board is absolutely critical right now to the [incentive] auction decisionmaking process,” one industry source told BNA Aug. 2. “Staff is pushing ahead, but are reluctant to make big decisions without Wheeler--and now O'Rielly--on the job.”

The FCC is currently in the process of crafting rules for the first-ever incentive auctions of spectrum, in which TV broadcasters will be able to voluntarily give back spectrum for an auction to wireless carriers, with a portion of the proceeds paid to the broadcasters.

Clyburn, in vowing to adhere to the deadlines set by former FCC Chairman Julius Genachowski's office, has directed staff to prepare such rules for a vote by the end of 2013, which would set the stage for an auction in 2014.

If the Senate confirms Wheeler and O'Rielly in September, the commission would have five members in place for a vote sometime in the fall. And for O'Rielly, the learning curve for incentive auctions will not be that steep.

O'Rielly Work for Cornyn Highlighted

Industry stakeholders, in official statements about the GOP aide, lauded his expertise in communications policy and spectrum auctions in particular. As an aide for Senate Minority Whip John Cornyn (R-Texas), O'Rielly helped negotiate the provisions of the Middle Class Tax Relief and Job Creation Act of 2012 (Pub. L. No. 112-96) that authorized the FCC to hold incentive auctions.

Before becoming a policy adviser to Cornyn, O'Rielly worked for the Republican Policy Committee in the Senate as a policy analyst for banking, technology, transportation, trade, and commerce issues. He also served as legislative director for Sen. John Sununu (R-N.H.) from 2007 to 2009 and as senior legislative assistant from 2003 to 2007. On the House side, he was a staffer on the House Energy and Commerce Committee from 1998 to 2003, and before that he was a telecommunications policy analyst from 1995 to 1998.

'Thoughtful, Smart, Tenacious.'

Julie Kearney, vice president of regulatory affairs for the Consumer Electronics Association, described O'Rielly as “thoughtful, smart, and tenacious.”

“We look forward to working with Mike, particularly as the FCC moves forward with incentive auctions, and urge a speedy confirmation,” Kearney said.

Steve Largent, president and CEO of CTIA-The Wireless Association, similarly credited O'Rielly's “impressive depth of experience in telecommunications, consistent commitment to public service and keen understanding of the vast importance that wireless broadband drives our economy.”

Gordon Smith, president and CEO of the National Association of Broadcasters, said O'Rielly will “bring years of public policy experience and a deep breadth of knowledge on telecom issues to the commission.”

Clyburn, Rosenworcel, and Pai issued brief statements Aug. 2 praising his expertise and experience, particularly in matters concerning communications policy.

Possibility for Delay

The Senate Commerce Committee must still hold a hearing and report O'Rielly's nomination to the Senate, and there is always the possibility for further delay if a senator places a hold on either or both of the nominations.

Sen. Ted Cruz (R-Texas) has threatened such a course following the committee's confirmation hearing for Wheeler in June, upset that Wheeler was noncommittal about whether he would use the agency's authority to require television broadcasters to force organizations sponsoring political ads to identify their donors.

During the hearing, Cruz said the issue could “derail” Wheeler's nomination.

Request Tech & Telecom on Bloomberg Law