Thune Statement on Wheeler Confirmation Hearing

June 18, 2013

WASHINGTON, D.C. — U.S. Senator John Thune (R-SD), Ranking Member of the Senate Committee on Commerce, Science, and Transportation, delivered the following prepared remarks at today’s full committee hearing on the nomination of Thomas Wheeler to be the chairman of the Federal Communications Commission:

Thank you, Chairman Rockefeller.

Mr. Wheeler, thank you for your interest to serve as the next Chairman of the Federal Communications Commission and to bring your considerable experience to the agency. 

We are in the midst of a technological revolution that holds great promise to improve the lives of all Americans. Advancements seem to be moving faster than ever before, and they are finding their ways into the hands of consumers more quickly and in larger numbers every day.

Today, grandparents who live thousands of miles away can see their grandkids grow up due to the Internet and video applications. Small business owners in South Dakota use smart devices to run their companies and have access to technology that previously only the world’s largest corporations could use. And doctors are able to diagnose and help folks in rural America without patients travelling hundreds of miles to see a specialist. 

When we met last week, we talked a little about South Dakota, and I again want to extend an open invitation to you to visit. There is no substitute for seeing firsthand the challenges of rural communications delivery and the value that new technology holds for Americans living in rural states. You can also replace the old sign from Wall Drug that you happened to come by a few years ago. 

As my colleagues may be aware, you have written that “[t]he Communications Act and its enforcer the FCC are analog legacies in a digital world,” and that “[r]egulation designed around early 20th Century technology and monopoly market structure isn’t a perfect tool for dealing with distributed digital networks and multiple service providers.” 

I think that frames our big picture discussion perfectly and, coming from someone now aspiring to lead that same legacy agency using that same outdated law, it begs several questions.  

First, will you work with Congress and seek to amend the law where it may be inadequate or outdated? The two previous FCC chairmen both chose to intervene in the broadband market based on questionable legal theories rather than any clear statutory authority or Congressional intent. The first attempt was struck down in court, and the second may yet meet the same fate. If the Commission loses again, I hope you will take a deep breath and come to Congress for legal clarity or revision, instead of wasting even more public resources on regulatory adventuring. I certainly hope that you would also refrain from applying the monopoly-era Title II common carriage regime to our modern broadband economy.   

Second, will you conduct agency business transparently? You have been criticized for suggesting that the FCC use merger conditions to create de facto regulation for an entire industry or, at a minimum, underscoring its ability to do so. I hope you understand the anxiety among lawmakers when a potential agency chairman, who is tasked with executing the law, discusses using a “backdoor to imposing a new regulatory regime” and “skirting the regulatory authority issue.” Congress never intended for the FCC’s transaction review authority to be used as a “backdoor” policymaking tool that lacks both transparency and judicial review. We already have too many federal agencies carrying out their own agendas and overstepping their Congressional mandates—we don’t need the FCC to be another one.

Third, will you be visionary? As an industry leader and having served on the FCC’s Technological Advisory Council, you have seen firsthand the power and potential of the Internet.  There is no debate whether our current telecommunications laws, whether written in 1996, 1992, or 1934, anticipated a converged world in which American consumers can choose from multiple wireline and wireless communications substitutes. None of them did.  In fact, all of our laws deserve to be reviewed and brought into the digital, all-I.P. era, reflecting not just today’s reality, but also allowing for tomorrow’s advances. Your term at the FCC has the potential to be a pivotal one for communications history, and I invite you to share your ideas regarding statutory and agency modernization.

Chairman Rockefeller, I know many members of the Committee have already had an opportunity to meet privately with Mr. Wheeler, and I know others would still like to do so. I also suspect there will not be enough time today to address all the questions our members may have, so the record will provide another opportunity for them to explore issues important to them and their constituents. Nevertheless, I appreciate your desire to process Mr. Wheeler's nomination in a timely manner in order to get the Commission back to its full membership as soon as possible, especially given the many critical proceedings before the agency. So, I await the President's additional nomination to fill the seat previously held by Commissioner McDowell, and I am ready to work with you and our colleagues to move forward both nominations in due course.

Thank you, and I look forward to Mr. Wheeler’s testimony.