Confirmation of Any O'Rielly Replacement Seen Difficult This Year

President Donald Trump’s withdrawal of renomination of FCC Commissioner Mike O’Rielly (see 2008030072) is getting considerable scrutiny on Capitol Hill and within the communications industry. Some officials suggested Trump’s action will have repercussions for commission politics and policymaking heading into 2021. O’Rielly’s removal will likely make it very difficult for the Senate to confirm a nominee this year to replace him, given the limited amount of time left on the legislative calendar before this Congress ends, lawmakers and lobbyists said in interviews through Tuesday.

Senate Commerce Committee Chairman Roger Wicker of Mississippi and other GOP leaders immediately after the White House’s announcement Monday indicated they had received little to no advance warning. The senators noted the White House didn’t explain Trump's reasoning. The White House and O’Rielly’s office didn’t comment.

Capitol Hill officials and others heard the reversal was directly related to O’Rielly’s reluctance to support Trump’s May executive order calling for FCC clarification on Communications Decency Act Section 230 (see 2008030074). O'Rielly said last week that it’s “First Amendment gibberish” to argue proposals to regulate social media platforms’ editorial privileges are pro-free speech (see 2007290039), while saying he didn't begrudge Trump's request. The FCC sought comment Monday on NTIA’s petition (see 2008030025).

“I had heard” Trump’s reversal on O’Rielly “was in the offing” Monday and “I’m eager to hear what the White House has to say about this turn of events,” Wicker said. “I’ve always found [O’Rielly] to be knowledgeable and effective. I was not made aware that there was a problem.” He told us Tuesday he hadn’t heard anything further from the White House on its reasoning.

“I just heard about” Trump walking back the renomination and “I don’t know what his reasons are,” said Senate Communications Subcommittee Chairman John Thune of South Dakota. O’Rielly "has been a great commissioner” and “he was a great staffer” for the Republican Policy Committee 2009-2010 when Thune chaired that panel. “Hopefully, we’ll find out more about what [the White House’s] thinking is,” Thune said.

Senate Armed Services Committee Chairman Jim Inhofe of Oklahoma said he was “shocked” when he heard about Trump’s decision and believes it’s at least partly attributable to the hold Inhofe placed last week on O’Rielly’s reconfirmation, which wouldn’t end until the commissioner committed to vote to overturn FCC approval of Ligado’s L-band plan (see 2007280039). “It was going to be a long-enduring hold” and “I would put a hold” on any of the other commissioners if they came up for reappointment given their equal role in approving the proposal, Inhofe told us. Objections from several top Senate Commerce Democrats were expected to delay Senate reconfirmation of O’Rielly until at least September (see 2007310001). Inhofe was less certain whether he would place a block on a new nominee to replace O’Rielly, saying it “depends on who it would be.”

Senate Communications ranking member Brian Schatz of Hawaii, one of the four Commerce Democrats who opposed O’Rielly’s reconfirmation during a July committee meeting (see 2007220066), told us “I assume” the commissioner’s Section 230 stance is the reason Trump withdrew him from consideration. “I wasn’t going to support” O’Rielly on the Senate floor either, but the rollback shows “there’s just no evidence that [FCC Chairman] Ajit Pai is ever willing to stand up” to Trump, Schatz said.

Other Senate Commerce Republicans were likewise mystified. “I find [O’Rielly] to be a very qualified and capable member of the FCC,” said Jerry Moran of Kansas. “I was looking forward to his continued service” on the commission. O’Rielly “has been very helpful to me in my efforts to develop policies at the FCC that benefited my constituents,” Moran said. Dan Sullivan of Alaska said Monday he hadn’t heard about O’Rielly’s removal until we told him about it. He wants to find out Trump’s motivation.

'Significant Setback'

“It goes without saying” that O’Rielly’s withdrawal is a significant setback and will make it more difficult for the Senate to confirm a replacement this Congress, Wicker told us Tuesday. “It will be harder and more time-consuming to confirm a new nominee. That’s just a matter of arithmetic.” Lawmakers “had a known quantity” in O’Rielly, “whose background check had been completed” and whose reconfirmation had already advanced out of Senate Commerce, Wicker said.

The Senate is scheduled to break next week for the August recess and return after Labor Day. There’s uncertainty whether the chamber will begin the recess then, given ongoing negotiations with House leaders and the administration on the next major COVID-19 aid bill. If senators remain in session, there’s unlikely to be an appetite to begin a new confirmations process, lobbyists said. The Senate is also expected to be in session for limited periods in September and early October before another long break during the final weeks of the campaign.

Wicker told us he got no indication the administration has a new nominee ready. Industry officials believe the likeliest candidate is Senate Commerce Deputy GOP Staff Director Crystal Tully, who reportedly received backing from Wicker and Thune to take the next vacant Republican FCC seat (see 1910250039). The White House has been eyeing Tully as a potential FCC candidate since late 2018, when there was considerable uncertainty about whether Senate holds on FCC Commissioner Brendan Carr would prevent his reconfirmation (see 1812200060) and amid questions about how long Pai would remain, lobbyists said.

Stakeholders cited a handful of other potential candidates. They include Senate Communications GOP Policy Director Olivia Trusty, Special Assistant to the President-Technology, Telecommunications and Cybersecurity Policy Robin Colwell and ex-White House aide Kelsey Guyselman, now Senate Commerce deputy policy director. Tully and the other three by virtue of all being current or former Capitol Hill staff already have gone through some of the vetting required of White House nominees, lobbyists and officials said. That would make it easier for Senate Commerce to bring them through the confirmations process, the officials said.

'Worst Thing'

O’Rielly’s Section 230 remarks might have gotten a pass if he weren’t catching heat from Inhofe, said FreedomWorks Regulatory Policy Manager Dan Savickas. He said several conservative groups are pushing the White House to reverse course. A lawyer following the Ligado proceeding said the White House is unlikely to reverse itself on O’Rielly, since that would undercut the message being sent to other political appointees to not stray from the White House’s agenda.

Industry lobbyists said O’Rielly should have punted on Section 230 and would have been better off just saying he would review comments after they come in. Lawyers said the administration’s 230 proposal reflected significant work by the White House and emerged as a Trump priority at the FCC.

“I don’t often agree with Mike, but it has to be traumatic to have the rug pulled out from under you, especially after having advanced so far in the confirmation process,” said former Commissioner Michael Copps, now at Common Cause: “It must hurt even more when the deed is done by your own friends.’”

"Look how far we've sunk" compared with the complaints FCC and congressional Republicans had during President Barack Obama's administration about the White House interfering with the agency, emailed Free Press Vice President-Policy Matt Wood. The Trump administration made a "literal demand that the FCC regulate internet applications, websites and expression." Carr "has ironically and cynically rushed to embrace the president's command, and Chairman Pai has conveniently forgotten about the fit he pitched five years ago over a wholly imagined presidential takeover of the FCC," Wood said. Free Press disagrees with O’Rielly about most things, but he "has at least tried to articulate and explain the vision guiding his decisions over the years, and has seemingly fallen out of favor because doing the president's bidding is not his sole aim," Wood said.

“I have been around D.C. Communications policy circles for 47 years,” tweeted telecom lawyer Preston Padden. “Trump withdrawing the renomination of Mike O’Rielly for the FCC is the worst thing I ever have seen. … I fear for the independence of the FCC.”

O’Rielly will be missed because of his strong support for unlicensed use of the 5.9 GHz, 6 GHz and other bands, Wi-Fi advocates said.