With expectation that he will be confirmed by the Senate, President Obama's nominee as the next FCC chairman, Tom Wheeler, nevertheless faced questions at a confirmation hearing on Tuesday over a suggestion he once made in a blog post that the government could use a merger review as a "backdoor" way to regulate the industry.
In a 2011 post on his blog, Mobile Musings, 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.
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 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.
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 that he will not be confirmed. Over the past several weeks, he's been meeting with members of the committee to address any concerns.
Sen. Jay Rockefeller (D-W. Va.), the chairman of the Senate Commerce Committee, predicted that Wheeler would be confirmed, telling him he was "certain" that it would happen. Rockefeller 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 sidestepped 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."
Mignon Clyburn is serving as acting FCC chair until a new nominee is confirmed.