Senators Grill FCC Nominee Tom Wheeler on ‘Backdoor Regulation,’ TV Indecency

Tom Wheeler, President Obama’s nominee to be the next chairman of the FCC, faced pointed questions on regulatory overreach and TV indecency from Republicans at a Senate confirmation hearing on Tuesday,  but expectations are that he will be confirmed to the post.

“I think that you will be confirmed and I think you are up to the job,” said Sen. Jay Rockefeller (D-W. Va.), the chairman of the Senate Commerce Committee, which conducted the hearing.

The most pointed grilling was of a 2011 post on his blog, Mobile Musings, in which Wheeler appeared to argue that rather than oppose the proposed merger of AT&T and T-Mobile, the Justice Department could have supported it with a consent decree that would establish “pseudo-regulatory behavioral standards” eventually be applied to the rest of the wireless industry.

At the confirmation hearing before the Senate Commerce Committee, Sen. John Thune (R-S.D.) pressed Wheeler on his past comments, and warned against the FCC trying to impose “backdoor” regulations should it lose a pending case over its ability to impose net neutrality rules.

Wheeler, however, told Thune that “what you cited was hypothetical speculation,” suggesting that any review has to be kept to the “realities of the specific cases,” the law governing competition and the public interest, and past precedent.

A merger review, he said, “must be conducted precisely based on the facts of that particular incident.”

A point of his 2011 blog post was that the time was ripe for the type of commitment that AT&T struck with the Justice Department in 1913 over the operation of Ma Bell, one that shaped communications policy for the next century.

Sen. Ted Cruz (R-Texas) pressed Wheeler for his position on whether the FCC should try to impose new regulations to require that political ads include the disclosure of underlying funders, not merely generic interest groups. The issue is a political hot potato, as legislation to do just that has failed in Congress and Republicans have warned the FCC not try to take action “by fiat.” Wheeler noted the issue was one that had “strong feelings” on both sides in Congress, but didn’t say much more about his own position. Cruz continued to press for an answer, warning that it was the “one issue that has the potential to derail your nomination.”

As with most confirmation hearings, Wheeler often said much, but little that could create a flashpoint as his confirmation process proceeds. To a question about whether media ownership rules should be relaxed, given the troubles in the newspaper business, he said, “I am specifically trying not to be specific…because I want to become more informed.”

One of the largest issues pending before the FCC is the implementation of an incentive auction, in which broadcasters would voluntarily give up their spectrum in exchange from the proceeds of a sale to wireless carriers. Wheeler did get specific on how he would alleviate some of the concerns of broadcasters — like a timeline for the auctions and how coverage areas would be preserved — but he did emphasize his experience in overseeing an overhaul of the nation’s airwaves in the past. He helped develop a plan for the transition from analog to digital television.

Wheeler did acknowledge the complexities of the auction — he compared it to a Rubik’s Cube — while vowing to keep the agency moving forward. The current plans calls for the auctions next year, something that broadcasters doubt can be met given the vexing issues involved.

Wheeler served as president of the cable industry’s lobbying arm, as well as the wireless association, and while his nomination was greeted with some criticism from public interest groups, who worry that he will not be strong enough in exerting regulatory influence, there is so far little sign of a movement to block his nomination. Over the past several weeks, he’s been meeting with members of the committee to address any concerns.

Rockefeller, who said he was “certain” of Wheeler’s confirmation, praised Wheeler’s experience, a contrast to a terse statement that he released several days after his nomination was announced. Rockefeller had been advocating for a former aide, FCC commissioner Jessica Rosenworcel, to get the post.

In contrast to Thune, Rockefeller pressed Wheeler to “harness the vast power of the FCC, not shy away from it. Use it. Use it.” He warned that the agency faced becoming increasingly irrelevant in the digital age. “You face an agency that has become increasingly polarized and politicized,” Rockefeller told Wheeler.

Wheeler also avoided specific answers to questions about whether the FCC would try to exert more influence in negotiations between media companies over the retransmission of channel signals, ones that have led to blackouts in major cities in the standoff over fees. Although FCC chairman Julius Genachowski, who stepped down in May, has said that the agency has a limited role, Wheeler said that given pending litigation “it is something that is in flux that I need to get my arms around.”

“What does bother me, and what the commission needs to be attuned to, is when consumers are held hostage to corporate disputes,” he said.

The FCC is the midst of reviewing whether it should revise how it deals with complaints over indecency on broadcast television, with Genachowski’s proposal to look at only “egregious” cases.

Noting that the courts have restricted what the FCC can do with indecency cases, Wheeler said that “it is possible to call upon our better angels with some leadership.”

He cited the fact that in 1961, FCC chairman Newton Minow called TV a “vast wasteland,” even though the agency did not have regulatory authority over content. “It caught the public’s attention,” Wheeler said. “Maybe it is possible to do the same thing today and say, ‘Can’t we do better?'” By contrast, Genachowski largely avoided saying much at all about TV content, waiting until his final months before outlining a plan for complaints.

Mignon Clyburn is serving as acting FCC chair until a new nominee is confirmed.

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