[Senate Hearing 113-612]
[From the U.S. Government Publishing Office]





                                                        S. Hrg. 113-612

                    NOMINATIONS TO THE FEDERAL TRADE
                       COMMISSION AND THE FEDERAL
                       COMMUNICATIONS COMMISSION

=======================================================================



                                HEARING

                               before the

                         COMMITTEE ON COMMERCE,
                         
                      SCIENCE, AND TRANSPORTATION
                      
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                           SEPTEMBER 18, 2013

                               __________

    Printed for the use of the Committee on Commerce, Science, and 
                             Transportation
                             
                             
                                      ______

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       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

            JOHN D. ROCKEFELLER IV, West Virginia, Chairman
BARBARA BOXER, California            JOHN THUNE, South Dakota, Ranking
BILL NELSON, Florida                 ROGER F. WICKER, Mississippi
MARIA CANTWELL, Washington           ROY BLUNT, Missouri
MARK PRYOR, Arkansas                 MARCO RUBIO, Florida
CLAIRE McCASKILL, Missouri           KELLY AYOTTE, New Hampshire
AMY KLOBUCHAR, Minnesota             DEAN HELLER, Nevada
MARK WARNER, Virginia                DAN COATS, Indiana
MARK BEGICH, Alaska                  TIM SCOTT, South Carolina
RICHARD BLUMENTHAL, Connecticut      TED CRUZ, Texas
BRIAN SCHATZ, Hawaii                 DEB FISCHER, Nebraska
MARTIN HEINRICH, New Mexico          RON JOHNSON, Wisconsin
EDWARD MARKEY, Massachusetts         JEFF CHIESA, New Jersey
                    Ellen L. Doneski, Staff Director
                   James Reid, Deputy Staff Director
                     John Williams, General Counsel
              David Schwietert, Republican Staff Director
              Nick Rossi, Republican Deputy Staff Director
   Rebecca Seidel, Republican General Counsel and Chief Investigator
   
                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on September 18, 2013...............................     1
Statement of Senator Rockefeller.................................     1
Statement of Senator Thune.......................................     3
Statement of Senator Blunt.......................................    25
Statement of Senator Chiesa......................................    26
Statement of Senator Cantwell....................................    28
Statement of Senator Pryor.......................................    29
Statement of Senator Ayotte......................................    32
Statement of Senator Scott.......................................    34
Statement of Senator Markey......................................    35
Statement of Senator McCaskill...................................    37

                               Witnesses

Michael P. O'Rielly, Commissioner-Designate, Federal 
  Communications Commission......................................     5
    Prepared statement...........................................     6
    Biographical information.....................................     7
Terrell McSweeny, Commissioner-Designate, Federal Trade 
  Commission.....................................................    13
    Prepared statement...........................................    14
    Biographical information.....................................    15

                                Appendix

Response to written questions submitted to Terrell McSweeny by:
    Hon. Maria Cantwell..........................................    45
    Hon. Amy Klobuchar...........................................    46
    Hon. John Thune..............................................    47
    Hon. Roger F. Wicker.........................................    50
    Hon. Dan Coats...............................................    51
Response to written questions submitted to Michael P. O'Rielly 
  by:
    Hon. John D. Rockefeller IV..................................    52
    Hon. Barbara Boxer...........................................    60
    Hon. Maria Cantwell..........................................    63
    Hon. Mark Pryor..............................................    65
    Hon. Amy Klobuchar...........................................    66
    Hon. Mark Begich.............................................    66
    Hon. John Thune..............................................    68
    Hon. Roy Blunt...............................................    70
    Hon. Dean Heller.............................................    70
    Hon. Dan Coats...............................................    70
    Hon. Ted Cruz................................................    72
    Hon. Deb Fischer.............................................    73

 
                    NOMINATIONS TO THE FEDERAL TRADE

          COMMISSION AND THE FEDERAL COMMUNICATIONS COMMISSION

                              ----------                              


                     WEDNESDAY, SEPTEMBER 18, 2013

                                       U.S. Senate,
        Committee on Commerce, Science, and Transportation,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:42 p.m. in room 
SR-253, Russell Senate Office Building, Hon. John D. 
Rockefeller IV, Chairman of the Committee, presiding.

       OPENING STATEMENT OF HON. JOHN D. ROCKEFELLER IV, 
                U.S. SENATOR FROM WEST VIRGINIA

    The Chairman. We're going to have a full house. Well, 
virtually do have a full house. But we're going to have lots of 
people, but they're all coming a little bit late, following my 
example. This committee has several items on our agenda today. 
Our most important agenda is to take testimony from two 
nominees who are facing me: Mr. Michael O'Rielly, who is a 
nominee for the Federal Communications Commission; and 
Terrell--is it ``Ter-RELL'' or ``TER-rell''?
    Ms. McSweeny. ``TER-rell.''
    The Chairman. ``TER-rell'' McSweeny, who graduated from 
Harvard--I forgive her for that--and went right down to one of 
the least populated counties in West Virginia and worked on 
small weekly newspapers, the Pocahontas Times. You probably 
worked with--was NPR, that whole station, going?
    Ms. McSweeny. Yes, sir, the Allegheny Mountain Radio 
Network, and it's still there today.
    The Chairman. Yes, yes.
    So anyway, and she's a nominee for the Federal Trade 
Commission.
    But before we hear from these nominees, we have to take 
care of a little bit of necessary business, which has to do 
with our Committee's spending resolution that will carry us 
through to the end of the 113th Congress. You will remember 
that Senator Schumer and the Rules Committee instructed us to 
do a budget, but only through the end of this fiscal year. So 
we've got to do it for the rest of this year and 2014, the 
first 5 months of the Congress.
    Back in early 2013, the appropriations situation was so 
uncertain that Senators Schumer and Roberts, the Chair and 
Ranking Member of the Rules Committee, asked us to pass, as I 
indicated, a short-term, seven-month budget. That seven-month 
budget will expire at the end of this month.
    When we have a quorum present, Senator Thune is going to 
move to pass a new budget with new spending levels that the 
Rules Committee recently provided to us. It is not a pretty 
picture. Like the rest of the Federal Government, this 
committee is being asked to do its job with less money.
    I hope and do ask members to support this motion, not 
because I think that cutting close to 18 percent of our budget 
is wonderful news--it is not--but because it's the best thing 
we can do in the current budget climate. So we have to do that.
    I'd like to turn now to the much more pleasant topic of our 
two nominees. They are both dedicated public servants who would 
bring a wealth of experience from both the Legislative and the 
Executive branches to their new jobs. During his more than 20 
years of experience working in the House and the Senate, Mr. 
O'Rielly, with whom I spent good time yesterday, has become an 
expert on communications issues. That would be important. And 
if you are confirmed, Mr. O'Rielly, you will be joining the FCC 
at an extraordinarily critical, somewhat contentious time. 
You'll have the opportunity to help shape the future of our 
Nation's telephone network, public safety, communications--the 
D Block situation we talked about--and the wireless, broadband, 
and video industries, all of them active and eager.
    But just as importantly, you will have the job of 
protecting consumers and preserving the public interest in the 
communications marketplace. Yes, technology is quickly 
changing, but the FCC's role in guaranteeing universal service, 
clearly laid out in the original legislation--universal 
service, big cities, little towns--and protecting, guaranteeing 
competition, guaranteeing consumer protection, and the other 
important values embedded in our communications law, should not 
be left aside.
    As I discussed with you earlier this week, Mr. O'Rielly, 
there are two current rulemakings at the FCC that are of the 
utmost importance to me. The first is implementation of the 
voluntary incentive spectrum auction, which is very complex. 
But its success ultimately will be judged on its ability to 
fund the public safety broadband network.
    The second is the FCC's ongoing effort to update and 
strengthen the bipartisan E-Rate program. We had a good 
discussion about that. The program has been hugely successful, 
but the technology demands of the schools and libraries 
continue to increase and we need to modernize the program to 
meet these broadband connectivity and infrastructure needs. We 
cannot afford to underinvest in our most important resource, 
that being our children, or to risk them falling farther behind 
their global peers in science and math, even farther behind.
    Our FTC nominee, Ms. McSweeny, has an extensive public 
policy background. She worked here in the Senate for then-
Senator Biden and more recently she has worked in the White 
House and as an antitrust lawyer at the Department of Justice. 
The most important thing you need to know about Ms. McSweeny, 
however, I've already told you: that she started her career in 
West Virginia working as a reporter, as an education advocate.
    It's a four and a half hour drive, Co-Chairman Thune, from 
Washington, D.C., to Pocahontas County. And I think your family 
roots are in Hillsboro?
    Ms. McSweeny. Yes, sir, and I'm pleased that my family from 
Hillsboro is here today as well.
    The Chairman. They're here? Wow. All right. Well, they're 
going to have to stand up at some point.
    So if you are confirmed, Ms. McSweeny, you will help direct 
one of the most important law enforcement agencies in the 
United States. For almost 100 years the FTC has been enforcing 
our antitrust laws and protecting consumers from unfair and 
deceptive commercial practices. There was a period during the 
Dodd-Frank bill when I was afraid they were going to be 
eliminated, because in the Dodd-Frank bill they were 
eliminated, and all the attention went to what was going to be 
attached to the Federal Reserve System.
    The FTC is really tough and smart. The National Gallery of 
Art wants their building, and they're not going to get it. I 
convinced Chris Dodd that two pairs of eyes is better than one, 
which is generally true in life, and so there it is, waiting 
for you.
    Over the years, FTC has protected Americans from a litany 
of anti-consumer scams, from misleading marketing campaigns, to 
abusive debt collection schemes, to privacy violation, to 
negligent data security practices.
    Ms. McSweeny, the FTC has a well-earned reputation for 
thorough deliberation, collegiality, and bipartisanship. I am 
confident that you will be able to serve on the Commission with 
this same spirit. I look forward, obviously, to hearing from 
both of you, and even more from our distinguished Ranking 
Member, Senator Thune.

                 STATEMENT OF HON. JOHN THUNE, 
                 U.S. SENATOR FROM SOUTH DAKOTA

    Senator Thune. Thank you, Mr. Chairman. You've made a visit 
to Pocahontas County sound pretty attractive. It sounds like 
that's something--we all ought to make an excursion out there.
    I want to thank you for holding this hearing to consider 
the nomination of Michael O'Rielly to be Commissioner at the 
Federal Communications Commission and the nomination of Terrell 
McSweeny to be Commissioner at the Federal Trade Commission.
    Mr. O'Rielly and Ms. McSweeny, thank you very much for your 
willingness to serve the Nation in these important positions of 
responsibility. I've had the privilege of being one of five 
members for whom Mr. O'Rielly has worked for in the Senate: 
John Sununu, John Ensign, myself, John Kyl, and most recently 
John Cornyn. I think you detect a pattern there. He has worked 
for--he has been around a lot of Johns.
    [Laughter.]
    Senator Thune. But Mike did excellent work at the Policy 
Committee--Mike did excellent work at the Policy Committee and 
he has been a dedicated public servant in Congress for nearly 
20 years. Much of Mike's Senate work focused on the Nation's 
communications landscape and I'm sure he will continue to serve 
our country with distinction in his new role at the FCC should 
he be confirmed.
    As I've said before, it's clear we're living in the middle 
of a digital revolution, which is being powered in large part 
by the huge investments made by the broadband industry. There's 
enormous potential for job creation and innovation in the 
broadband, Internet, and technology sectors.
    Both the FCC and the FTC are regulatory agencies that 
oversee various aspects of the interactions between consumers 
and industry in these important sectors of our economy, whether 
it is mobile technology privacy issues, which the FTC is 
actively investigating, or the FCC's critical efforts to 
increase the availability of private sector spectrum to keep 
pace with exploding demand. Those who are a part of these 
independent agencies must possess sound judgment so they can 
find the right balance between intervening in the marketplace 
to correct market failures, and applying restraint from taking 
actions that could overburden industry, harm innovation, and 
stifle economic growth.
    I believe we as a committee must focus on establishing 
modern legal and regulatory structures that serve the purposes 
of our 21st century economy, whether it's reviewing the 
authorities of the FTC under Section 5 of its statute regarding 
unfair methods of competition and unfair and deceptive acts or 
practices, or seeking to modernize and streamline our telecom 
laws to better reflect today's converging marketplace.
    It's time for our technology and communications sectors to 
be governed by laws written in the 21st century that reflect 
today's reality and allow for tomorrow's advances, rather than 
laws established long before the Internet was invented. I hope 
that the nominees before us today will work with us in 
Congress, should they be confirmed to seek to amend the law 
where it may be inadequate or outdated.
    In addition to these efforts, we must also be mindful of 
the rural areas of our Nation. Universal service is of course 
very important to rural America. Universal Service Fund reforms 
put in place by the FCC in the fall of 2011 are unfortunately 
creating a great deal of uncertainty and unpredictability for 
many rural carriers. As the FCC continues implementing these 
reforms, I hope that a full slate of FCC commissioners will 
look to apply them in a way that is more predictable for rural 
carriers and customers.
    Rural Americans are also facing significant call completion 
problems. I'm troubled by one study indicating that during the 
period between 2011 and 2012 the incompletion rate was 13 times 
higher in rural areas than in non-rural areas. Calls that fail 
to be completed result in rural businesses losing customers and 
family members in rural areas being cutoff from each other.
    I was pleased to see the FCC take action yesterday by 
issuing an order and notice of proposed rulemaking that seeks 
to enhance the agency's ability to investigate this problem by 
taking steps to improve the performance of calls made to rural 
America. Sadly for impacted customers and businesses in rural 
areas, including South Dakota, this has taken far too long to 
remedy.
    I would be remiss if I did not extend an open invitation to 
both of you to visit South Dakota. There's no substitute for 
seeing first-hand the challenges that are unique to rural 
communities and the value that new technology holds for 
Americans living in rural areas. I want to make sure that all 
consumers, including those in rural communities, are able to 
enjoy the economic and societal benefits of the digital 
economy.
    With regard to the nominations process for Mr. O'Rielly, 
I'm mindful that the President's nominee for chairman of the 
FCC is awaiting floor action and I hope, Mr. Chairman, that we 
can quickly process Mr. O'Rielly's nomination and that we can 
ultimately have a full slate of FCC commissioners by the time 
Congress breaks for the recess currently scheduled for mid-
October.
    Mr. Chairman, thank you again for holding this important 
hearing and I look forward to hearing the testimony from our 
witnesses.
    The Chairman. Thank you, Senator Thune.
    We're now in the awkward situation of waiting for five 
souls to arrive and place themselves in their seat. So anybody 
want to sing a country song?
    Senator Blunt. Probably we could ask them questions.
    The Chairman. They've got to give their testimony. I always 
make that mistake. I just start asking them questions.
    Senator Blunt. Can they do that without a quorum?
    The Chairman. Yes, they can, if you want to ask them. I 
mean, I don't mind.
    Are you OK with that?
    Senator Cantwell. Mr. Chairman, however you want to proceed 
is okay with me.
    The Chairman. That's the kind of forthright answer.
    All right. Well, let's just--why not? There's no rule 
against it. So somebody proceed with a question.
    Senator Cantwell. As opposed to a statement?
    The Chairman. Oh, go ahead with the testimony, oh. That's 
big time.
    Mr. O'Rielly. Mr. Chairman, I'm happy to go. What would you 
like to do?
    The Chairman. I want you to impress the five people that 
have yet to come.
    Why don't you just go right ahead.

   STATEMENT OF MICHAEL P. O'RIELLY, COMMISSIONER-DESIGNATE, 
               FEDERAL COMMUNICATIONS COMMISSION

    Mr. O'Rielly. Yes, sir. Thank you, Mr. Chairman, Senator 
Thune.
    I'm joined by my sister, Debra Keyes, my girlfriend Sarah 
Goss, and three of my closest friends, Christine Huber, Peter 
Bryan, and Lisa Piantanida. I thank them for being here today.
    I submitted a lengthy opening statement and I was hoping to 
expedite things by making four general points instead of 
reading from it, if I could. Point one: The power of the 
Internet. I believe the Internet is the greatest human 
invention we'll see in our lifetimes. It is extremely 
disruptive technology and it changes every market it touches. 
Industry and regulators would be wise to embrace it rather than 
trying to control or manage it.
    Point two: Changing technologies. By the time regulations 
are implemented, technology has a tendency to go in a totally 
different direction. Accordingly, I believe regulators can have 
difficulty getting ahead of technology developments, so the 
regulatory hand must be extremely light.
    Three: If I'm lucky enough or fortunate enough to be 
approved by this committee and the Senate as an FCC 
Commissioner, I would focus on three things: One, implementing 
and enforcing the applicable statutes enacted by Congress; two, 
work with my colleagues to address the pressing issues and 
bring certainty to the market; and three, look for 
opportunities to reduce unnecessary regulations and those that 
impose excessive financial burdens.
    Point four: I know it's not a beloved group right now, but 
I think it's appropriate to talk about a number of 
Congressional staff that I have worked with over the years and 
a shout-out to them. I've worked with some amazing people over 
the last 20 years and I want to express my thanks to them for 
their assistance along the way.
    [The prepared statement and biographical information of Mr. 
O'Rielly follow:]

  Prepared Statement of Michael P. O'Rielly, Commissioner-Designate, 
                   Federal Communications Commission
    Thank you, Mr. Chairman and Ranking Member Thune. I am honored to 
be before this Committee--one of the truly great Committees in the 
United States Senate--for the consideration of my nomination to be a 
Commissioner to the Federal Communications Commission (FCC). It has 
been an interesting path that has led me here today, and I should start 
by extending my deep appreciation to Senate Republican Leader 
McConnell, Senate Commerce Committee Ranking Member Thune, and 
President Obama for the trust placed in me for selection to this role.
    As the Members of this Committee know well, it takes a team of 
people for any one individual to succeed in Washington. Unfortunately, 
my mother is unable to be here today, as she doesn't travel well; my 
father passed away three years ago and is inurned across the river at 
Arlington National Cemetery. I am blessed, however, to be joined by my 
sister, Debra Keyes, representing my family; my girlfriend, Sarah Goss, 
representing my future; and a host of friends, representing my extended 
D.C. ``family.'' Without them, I would not be here today.
    By way of background, I was born and raised in a small city located 
on the Erie Canal, just outside Buffalo, New York. Growing up, it was a 
heavily union-based area, with General Motors being its largest 
employer. The people of Lockport are hearty, hardworking, holders of 
strong faith, and fans of the Buffalo Bills. They accept the hard 
winter weather and lack of sun as a badge of honor. I hope to have 
retained many of the qualities of my large family, now scattered across 
our nation, and the people of my hometown, as I am sure these qualities 
will come in handy in the future.
    It has been a distinct honor to work in the United States Congress 
for the last 20 years, with a little under half of the time being spent 
in the House of Representatives and a little over half being spent in 
the United States Senate. I have enjoyed every minute of my time in 
this distinct body; and potentially leaving for the FCC is bittersweet. 
To say that the United States Senate is the greatest deliberative body 
in the world does not do it justice. It represents the genius of our 
founding fathers, often having the last say on the consequential 
legislative matters of our day. I am in awe of this institution--and 
its Members--every day that I walk into work.
    One doesn't hold the views I do about the U.S. Congress without 
working for some amazing individuals. I have had the fortune of working 
for a number of legislative visionaries and I thank them all, including 
Ranking Member Thune and Senate Republican Whip Cornyn, for providing 
me such extraordinary opportunities. I would like to mention three for 
special appreciation:

   Tom Bliley and James Derderian--Former House of 
        Representatives Commerce Committee Chairman Tom Bliley and his 
        trusty strategist, J.D., were my first employers, my mentors 
        and remain inspirational figures. They taught me how to be a 
        Virginian Gentleman, how to object without being personally 
        objectionable, how to negotiate in good faith, and how to be a 
        grounded family man in the messy environment that is D.C.

   John E. Sununu--There are not enough words to express fully 
        my appreciation for the opportunity and pleasure of working for 
        former Senator Sununu. He epitomizes what I believe Senators 
        should be and how they should conduct themselves. I have never 
        met another politician with greater intellect, insight, vision, 
        or courage. He has been described as ``independent and 
        principled, a great dad, big-hearted, funny and kind'' and I 
        couldn't agree more. He also comes from New Hampshire, a near-
        magical place where the people adopted me as one of their own 
        and where I only had one really bad day in six years.

    Like many, I believe that America is far and away the greatest 
country that has ever existed in the history of the world. This is in 
part because of our strong free market system and our faith in American 
capitalism--true pillars of our democracy, setting us apart from our 
international counterparts. In today's global economy, American 
companies are the most innovative and consumer-driven. As a nation, we 
achieve the greatest outcome when we allow our companies to freely 
compete and fight for consumers' attention and approval. Thomas 
Jefferson stated it well: ``The policy of the American government is to 
leave their citizens free, neither restraining nor aiding them in their 
pursuits.'' Those companies that understand how to offer the best 
products, the best services, and/or the best prices to meet consumer 
demand should flourish. Conversely, those that do not should be allowed 
to fail.
    Generally, it is my view that the American communications industry 
is competitive, and our carriers should be free from undue government 
intervention. Accordingly, I tend to favor a smaller governmental role. 
This is not an absolute, as the government can play an important 
function in certain instances. In the particular case of the 
communications policy, establishing and enforcing clear rules of the 
road can help consumers and industry participants alike. I subscribe to 
former President Reagan's belief: ``Government exists to protect us 
from each other. Where government has gone beyond its limits is in 
deciding to protect us from ourselves.'' Depending on the 
circumstances, effective and efficient FCC rules--grounded in statutory 
provisions and sound policy--can bring benefits to the overall 
marketplace.
    If I were fortunate enough to be approved by this Committee and the 
Senate as an FCC Commissioner, I would focus on implementing and 
enforcing the applicable statutes enacted by Congress, work with my 
colleagues to address the pressing issues and bring certainty to the 
market, and look for opportunities to reduce unnecessary regulations or 
those that impose excessive financial burdens.
    It may be a bit premature, but I want to take this opportunity to 
mention the persistent problem of Americans using their wireless phones 
when driving. While our Nation's wireless companies are spending 
considerable resources and energy to get the message out, more needs to 
be done on the education side of the equation. Let me lend my voice to 
this issue: Absolutely no one should try to call, text, or search the 
Internet while driving a car. People need to put their phone down, keep 
their eyes on the road, and focus on driving.
    I stand ready to answer any questions of the Committee.
    Stay Strong For Freedom.
                                 ______
                                 
                      a. biographical information
    1. Name (Include any former names or nicknames used): Michael 
Patrick O'Rielly.
    2. Position to which nominated: Commissioner, Federal 
Communications Commission.
    3. Date of Nomination: August 1, 2013.
    4. Address (List current place of residence and office addresses):

        Residence: Information not released to the public.

        Office: Office of the Republican Whip, U.S. Senate, S208, The 
        Capitol, Washington, D.C. 20510.

    5. Date and Place of Birth: July 8, 1971; Lockport, New York.
    6. Provide the name, position, and place of employment for your 
spouse (if married) and the names and ages of your children (including 
stepchildren and children by a previous marriage). None.
    7. List all college and graduate degrees. Provide year and school 
attended.
        University of Rochester, Bachelor of Arts, Political Science, 
        1993.
    8. List all post-undergraduate employment, and highlight all 
management level jobs held and any non-managerial jobs that relate to 
the position for which you are nominated.

        A. Office of the Republican Whip, Senator John Cornyn, Policy 
        Advisor, 1/13 to present.

        B. Office of the Republican Whip, former Senator Jon Kyl, 
        Deputy Chief of Staff and Policy Director, 4/12-1/13.

        C. Office of the Republican Whip, former Senator Jon Kyl, 
        Advisor, 7/10-4/12.

        D. Republican Policy Committee, Senator John Thune and former 
        Senator John Ensign, Policy Analyst, 1/09-7/10.

        E. Former Senator John E. Sununu, Legislative Director, 1/07-1/
        09.

        F. Former Senator John E. Sununu, Senior Legislative Assistant, 
        1/03-1/07.

        G. House Energy & Commerce Committee, former Chairman W.J. 
        ``Billy'' Tauzin and former Chairman Tom Bliley, Professional 
        Staff Member, 1/98-1/03.

        H. House Energy & Commerce Committee, former Chairman Tom 
        Bliley, Telecommunications Policy Analyst, 1/95-8/98.

        I. Former Representative Thomas J. Bliley, Jr., Legislative 
        Assistant, 1/94-1/95.

    9. Attach a copy of your resume. A copy is attached.
    10. List any advisory, consultative, honorary, or other part-time 
service or positions with Federal, State, or local governments, other 
than those listed above, within the last five years: None.
    11. List all positions held as an officer, director, trustee, 
partner, proprietor, agent, representative, or consultant of any 
corporation, company, firm, partnership, or other business, enterprise, 
educational, or other institution within the last five years: None.
    12. Please list each membership you have had during the past ten 
years or currently hold with any civic, social, charitable, 
educational, political, professional, fraternal, benevolent or 
religious organization, private club, or other membership organization. 
Include dates of membership and any positions you have held with any 
organization. Please note whether any such club or organization 
restricts membership on the basis of sex, race, color, religion, 
national origin, age, or handicap.

        A. Member, St. Thomas Apostle Catholic Church (Jan. 2013 to 
        present); membership is based on a person holding the Catholic 
        faith.

        B. Member, St. Joseph's on Capitol Hill Catholic Church (Feb. 
        2008 to Dec. 2012); membership is based on a person holding the 
        Catholic faith

    13. Have you ever been a candidate for and/or held a public office 
(elected, non-elected, or appointed)? If so, indicate whether any 
campaign has any outstanding debt, the amount, and whether you are 
personally liable for that debt: No.
    14. Itemize all political contributions to any individual, campaign 
organization, political party, political action committee, or similar 
entity of$500 or more for the past ten years. Also list all offices you 
have held with, and services rendered to, a state or national political 
party or election committee during the same period.

    Political Contributions

        John McCain for President, 2008, $1,250

    Services Rendered

   John Sununu for Senate, 2007-8, Political Fund Designee, as 
        provided for under U.S. Senate Rules

   Lisa Murkowski for Senate, 2004, Volunteer

   Conrad Burns for Senate, 2006, Volunteer

   John Sununu for Senate, 2008, Volunteer

   Linda McMahon for Senate, 2010, Volunteer

   George Allen for Senate, 2012, Volunteer

   Republican National Committee, 2012, Volunteer, National 
        Platform Committee, Subcommittee on Health, Education, and 
        Crime

    15. List all scholarships, fellowships, honorary degrees, honorary 
society memberships, military medals, and any other special recognition 
for outstanding service or achievements: None.
    16. Please list each book, article, column, or publication you have 
authored, individually or with others. Also list any speeches that you 
have given on topics relevant to the position for which you have been 
nominated. Do not attach copies of these publications unless otherwise 
instructed: None.
    17. Please identify each instance in which you have testified 
orally or in writing before Congress in a governmental or non-
governmental capacity and specify the date and subject matter of each 
testimony: None.
    18. Given the current mission, major programs, and major 
operational objectives of the department/agency to which you have been 
nominated, what in your background or employment experience do you 
believe affirmatively qualifies you for appointment to the position for 
which you have been nominated, and why do you wish to serve in that 
position?
    For almost 20 years, I have been involved in--and in many instances 
led--nearly every issue involving communications policy and 
participated in extensive oversight of the Commission's work in this 
area. Given the dramatic changes facing American communications, I look 
forward, if confirmed, to bringing sound policy perspectives to the 
Commission and ensuring consumer freedom is not reduced.
    19. What do you believe are your responsibilities, if confirmed, to 
ensure that the department/agency has proper management and accounting 
controls, and what experience do you have in managing a large 
organization?
    The Commission must have strong internal controls to ensure the 
American people are receiving the greatest results and functionality 
from the Commission and its staff. While a significant portion of this 
responsibility rests with the Commission's Chairman and the people he/
she appoints to certain positions, individual Commissioners have a role 
in ensuring the Commission complies with current law, its own rules and 
sound practices. In my career, I have overseen and managed extensive 
coalitions to move and pass legislation; this experience will be 
exceptionally helpful in meeting the needs of the Commission. In 
addition, I have overseen numerous staff in various capacities during 
my tenure on Capitol Hill, including as serving as legislative director 
for former Senator John E. Sununu and as Deputy Chief of Staff and 
Policy Director for the Office of the Republican Whip, U.S. Senate.
    20. What do you believe to be the top three challenges facing the 
department/agency, and why?

    A. Completion of the Incentive Auction

        The Commission has numerous obligations and responsibilities 
        under the Middle Class Tax Relief and Job Creation Act of 2012, 
        including the timely completion of an auction of spectrum now 
        utilized by certain commercial broadcasters. The complex 
        auction structure necessary to carry out a successful auction 
        will require a number of items to go exceedingly well, 
        including the voluntary participation of broadcasters in 
        appropriate markets.

    B. Changing communications technology

        The communications industry is transforming and digitizing at 
        an exciting pace with the further development, utilization, and 
        capabilities of the Internet. It is important that old 
        regulatory models and requirements not stifle this 
        transformation. Failure to properly restrain from imposing 
        unnecessary regulations could harm innovation, technological 
        advancement, economic growth, and overall job creation.

    C. Reforming and reshaping Universal Service

        The Commission is in the process of implementing reforms to the 
        structure and interworking of its Universal Service programs 
        but much work remains, including reforms to the collection 
        mechanism and greater attention to unserved markets. The 
        challenge will be to ensure that the Commission makes further 
        reforms in a way that brings certainty to the marketplace, 
        creates greater overall balance to the various programs, and 
        reduces the overall costs for American ratepayers, many of whom 
        are struggling in the current economy.
                   b. potential conflicts of interest
    1. Describe all financial arrangements, deferred compensation 
agreements, and other continuing dealings with business associates, 
clients, or customers. Please include information related to retirement 
accounts. None.
    2. Do you have any commitments or agreements, formal or informal, 
to maintain employment, affiliation, or practice with any business, 
association or other organization during your appointment? If so, 
please explain. No.
    3. Indicate any investments, obligations, liabilities, or other 
relationships which could involve potential conflicts of interest in 
the position to which you have been nominated.
    In connection with the nomination process, I have consulted with 
the Office of Government Ethics and the FCC's designated agency ethics 
official to identify potential conflicts of interest. Any potential 
conflicts of interest will be resolved in accordance with the terms of 
an ethics agreement that I have entered into with the FCC's designated 
agency ethics official and that has been provided to this Committee. I 
am not aware of any other potential conflicts of interest.
    4. Describe any business relationship, dealing, or financial 
transaction which you have had during the last ten years, whether for 
yourself, on behalf of a client, or acting as an agent, that could in 
any way constitute or result in a possible conflict of interest in the 
position to which you have been nominated.
    In connection with the nomination process, I have consulted with 
the Office of Government Ethics and the FCC's designated agency ethics 
official to identify potential conflicts of interest. Any potential 
conflicts of interest will be resolved in accordance with the terms of 
an ethics agreement that I have entered into with the FCC's designated 
agency ethics official and that has been provided to this Committee. I 
am not aware of any other potential conflicts of interest.
    5. Describe any activity during the past ten years in which you 
have been engaged for the purpose of directly or indirectly influencing 
the passage, defeat, or modification of any legislation or affecting 
the administration and execution of law or public policy.
    In various roles during my career in the U.S. Senate, I have 
engaged directly and indirectly in influencing legislation and 
affecting the administration and execution of law or public policy on 
behalf of various Members of the U.S. Senate. This is one of the 
central functions of a staff member for the Senate.
    6. Explain how you will resolve any potential conflict of interest, 
including any that may be disclosed by your responses to the above 
items.
    In connection with the nomination process, I have consulted with 
the Office of Government Ethics and the FCC's designated agency ethics 
official to identify potential conflicts of interest. Any potential 
conflicts of interest will be resolved in accordance with the terms of 
an ethics agreement that I have entered into with the FCC's designated 
agency ethics official and that has been provided to this Committee. I 
am not aware of any other potential conflicts of interest.
                            c. legal matters
    1. Have you ever been disciplined or cited for a breach of ethics 
by, or been the subject of a complaint to any court, administrative 
agency, professional association, disciplinary committee, or other 
professional group? If so, please explain. No.
    2. Have you ever been investigated, arrested, charged, or held by 
any Federal, State, or other law enforcement authority of any Federal, 
State, county, or municipal entity, other than for a minor traffic 
offense? If so, please explain. No.
    3. Have you or any business of which you are or were an officer 
ever been involved as a party in an administrative agency proceeding or 
civil litigation? If so, please explain. No.
    4. Have you ever been convicted (including pleas of guilty or nolo 
contendere) of any criminal violation other than a minor traffic 
offense? If so, please explain. No.
    5. Have you ever been accused, formally or informally, of sexual 
harassment or discrimination on the basis of sex, race, religion, or 
any other basis? If so, please explain. No.
    6. Please advise the Committee of any additional information, 
favorable or unfavorable, which you feel should be disclosed in 
connection with your nomination. None.
                     d. relationship with committee
    1. Will you ensure that your department/agency complies with 
deadlines for information set by congressional committees? Yes.
    2. Will you ensure that your department/agency does whatever it can 
to protect congressional witnesses and whistleblowers from reprisal for 
their testimony and disclosures? Yes.
    3. Will you cooperate in providing the Committee with requested 
witnesses, including technical experts and career employees, with 
firsthand knowledge of matters of interest to the Committee? Yes.
    4. Are you willing to appear and testify before any duly 
constituted committee of the Congress on such occasions as you may be 
reasonably requested to do so? Yes.
                    Resume of Michael P. O'Rielly
                        Professional Experience

Republican Whip Office--U.S. Senate
Policy Advisor--January 2013 to present
Deputy Chief of Staff and Policy Director--April 2012 to January 2013
Advisor--July 2010 to April 2012

   Oversee and manage an expansive portfolio of issue areas to 
        provide policy analysis to the Republican Senate Whip 
        operations.

   Evaluate complex substantive policy matters to determine 
        position of Republican Senators, maintain cohesion, and 
        determine necessary changes in tactics, strategy and message.

   Advocate and negotiate on behalf of Republican Whip's policy 
        positions and substantive goals, including:

     Lead Senate Republican negotiator for the Public 
            Safety Communications and Electromagnetic Spectrum Auctions 
            provisions contained in the Middle Class Tax Relief and Job 
            Creation Act of 2012.

   Construct and lead coalitions involving Senate leadership, 
        congressional committees, diverse business interests, and 
        consumer groups.

Republican Policy Committee--U.S. Senate
Banking, Technology, Transportation, Trade & Commerce Analyst--January 
2009 to August 2010

   Provided in-depth policy analysis and advice to Republican 
        Senators on a broad array of issues, including political and 
        substantive implications of actions.

   Created policy alternatives, substitutes and strategic 
        options for Republican Conference.

   Prepared issue papers and background materials for key votes 
        and controversial issues.

   Presented Republican message and positions before industry 
        and media.

Former Senator John E. Sununu--U.S. Senate (R-NH)
Legislative Director--January 2007 to January 2009
Senior Legislative Assistant--January 2003 to January 2007

   Supervised 11-person legislative staff in preparing and 
        executing legislative priorities, including content management, 
        time allocation and project completion.

   Led Senator's aggressive technology-focused agenda, 
        including:

     Internet Tax Moratorium expansion and extension

     Voice Over Internet Protocol (VoIP) legislation

     Internet video regulatory treatment legislation

     Satellite Home Viewer Reauthorization

     Unlicensed spectrum in TV White Spaces

     Digital television conversion legislation

     Wireless spectrum policy reform

   Served as the policy director for the Senator and staff for 
        Senate floor procedure and strategy.

   Functioned as sole liaison on all staff relations with 
        Senate leadership and floor staff.

Committee on Energy and Commerce--U.S. House of Representatives
Telecom and E-Commerce Professional Staff Member--August 1998 to 
January 2003
Telecom Legislative Analyst--January 1995 to August 1998

   Devised, coordinated, and oversaw telecommunications and 
        electronic commerce issues.

   Active role in every technology bill and issue considered by 
        Committee, including:

     The Telecommunications Act of 1996

     Electronic signatures and records legislation

     International Satellite Reform

     Electronic commerce and privacy

     Satellite Home Viewer Act Reauthorization

     FCC Reform and Reauthorization

     NTIA Reform and Reauthorization

   Drafted legislation, prepared and designed legislative 
        hearings, oversaw committee mark-ups, and conducted conference 
        committee staff meetings.

Former Congressman Tom Bliley (R-VA)--U.S. House of Representatives
Legislative Assistant--January 1994 to January 1995
                               Education
University of Rochester, Rochester N.Y., 1989-1993
Bachelor of Arts, magna cum laude in political science, May 1993

    The Chairman. I hate to interrupt. It's they who are 
beloved. It's the Senators who are not beloved.
    [Laughter.]
    Mr. O'Rielly. Sometimes it's mixed, sir.
    [Laughter.]
    Mr. O'Rielly. To name just a few, I'd like to thank the 
Senate Republican Whip team, the Cornyn personal office, the 
Kyl personal office, the men and women of the Republican Policy 
Committee, Team Sununu, the professionals at the Energy and 
Commerce Committee. In addition, there were countless 
individuals that I've worked with from other offices, including 
the Republican Leader's Office, the many staff of the members 
here today, the many former staffers in the audience, and the 
plethora of people that have moved on to other challenges. I 
thank you one and all.
    This concludes the points I'd like to make at this time. I 
stand ready to answer your questions. Stand strong for freedom.
    The Chairman. Ms. McSweeny, is your testimony a little bit 
longer perhaps?
    [Laughter.]
    Ms. McSweeny. Senator, I can try to make it a little bit 
longer. I was actually hoping to be as succinct and witty as 
Mr. O'Rielly. So we'll see what I can do, though.
    The Chairman. Do you remember when the rumor was that the 
Federal Government was going to come in and build a huge dam?
    Ms. McSweeny. I do.
    The Chairman. And you remember it was northern Pocahontas 
County versus southern Pocahontas County, and it was never 
going to happen. No matter how many times I said that to my 
northern Pocahontas County friends, they never believed it, 
until it didn't happen.
    Ms. McSweeny. I think I covered quite a few public meetings 
where that was discussed.
    The Chairman. Yes.
    Ms. McSweeny. It's still an ongoing concern.
    I'm happy to proceed.
    The Chairman. Please.

STATEMENT OF TERRELL McSWEENY, COMMISSIONER-DESIGNATE, FEDERAL 
                        TRADE COMMISSION

    Ms. McSweeny. I want to start by thanking you, of course, 
Mr. Chairman and Ranking Member Thune and members of the 
Committee, for the opportunity to appear here today. This is a 
special moment for me, not just because I served in the Senate 
as staff, but because the Senate is where I first got a taste 
for public service as a 16-year-old Senate page. It was amazing 
to watch first-hand some of the giants of the Senate-- public 
servants like Senator Dole and Senator Byrd and Senator Pryor--
work together to do what's best for the country, and it's a 
lesson that has inspired me every since and the sense of 
purpose that I hope to bring to the FTC if I am confirmed.
    I'd note that the page program not only inspires that 
commitment; it also fosters lifelong friendships, and I'm 
pleased that my friend Leigh Hildebrand, who I was a Senate 
page with, is here today. She's your Senior Assistant 
Parliamentarian now.
    If I may, I also wish to thank my family for being here 
today: my husband Ralph Burns, my children Warren and 
Madeleine, my parents Bill and Dorothy McSweeny, my sister 
Kate, and my in-laws Dick and Ruby. Without their love and 
support, it wouldn't be possible for me to be here today. So I 
really appreciate it, and all of the friends and colleagues 
that have come today.
    During these recent weeks I was privileged to meet with a 
number of Senators and their staffs, and I thank you for the 
opportunity to exchange views. These meetings reinforced to me 
that the mission of the FTC, protecting consumers and keeping 
the marketplace free from fraudulent, deceptive, and 
anticompetitive conduct, isn't a partisan one. Indeed, one of 
its greatest strengths is its bipartisanship.
    I'm honored that Chairwoman Ramirez and Commissioner 
Ohlhausen are here today and I'm grateful to both of them, as 
well as to Commissioners Wright and Brill, for their insights 
during this process. Each of them has been generous with their 
time, and if I'm confirmed I hope to continue the tradition of 
collegiality and consensus-oriented decisionmaking that has 
been a hallmark of the FTC.
    It's a tradition that's celebrating its 100th anniversary 
next year. Since Congress passed the Federal Trade Commission 
Act in 1914, much has changed in our economy and our country. 
One could only imagine what Teddy Roosevelt or Woodrow Wilson 
would make of smartphones or the apps that are on them.
    As the country has changed, so has the agency. But the core 
mission has not--enforcing the laws that protect consumers and 
promote competition, making sure that markets are free and 
fair, vital and dynamic. It's something that is vital to our 
economy, which is built on free and fair markets, and is what's 
powered the growth of the United States for the past 100 years 
and will for the next 100 years. It's what has allowed us to 
build a strong middle class and deliver the economic security 
of consumers.
    Over my career here in the Senate, at the White House and 
the Department of Justice, the economic security of the middle 
class has been my focus, and I have appreciated how the FTC has 
worked closely with Congress to contribute to the well-being of 
America's families. The benefit to consumers from competition 
and protection from fraud and deception are well established. 
Competition leads to better prices, more and better choices, 
and innovation. Stopping fraudulent and predatory practices 
ensures that the playing field isn't tilted against consumers.
    In particular, I believe the FTC's work protecting those 
that are most targeted by scams or deception, groups such as 
seniors, veterans, the financially distressed, children, is 
very important. My work shows a commitment to these issues and 
I will continue to work on them at the Commission if I'm 
confirmed.
    It's an honor and a privilege to be considered for the 
position of Federal Trade Commissioner and I look forward to 
answering your questions. Thank you very much.
    [The prepared statement and biographical information of Ms. 
McSweeny follow:]

    Prepared Statement of Terrell McSweeny, Commissioner-Designate, 
                        Federal Trade Commission
    Chairman Rockefeller, Ranking Member Thune and members of the 
Committee, thank you for the opportunity to appear today.
    This is a special moment for me not just because I've served in the 
Senate as staff but because the Senate is where I first got a taste for 
public service as a 16-year-old Senate page. It was amazing to watch 
first-hand the giants of the Senate--public servants like Senator Dole 
and Senator Byrd--work together to do what's best for the country. It's 
a lesson that has inspired me ever since--and a sense of purpose that I 
hope to bring to the FTC, if I am confirmed.
    If I may, I also wish to thank my family for being here today: my 
husband, Ralph Burns, my children Warren and Madeleine, my parents, 
Bill and Dorothy McSweeny, my sister Kate, and my in-laws Dick and Ruby 
Burns. I am grateful for their love and support.
    During these recent weeks, I was privileged to meet with a number 
of Senators and their staffs and I thank you for the opportunity to 
exchange views. Those meetings reinforced to me that the mission of the 
FTC--protecting consumers and keeping the marketplace free from 
fraudulent, deceptive, and anticompetitive conduct--is not a partisan 
one. Indeed, one of its greatest strengths is its bipartisanship. I'm 
honored that Commission Chairwoman Ramirez and Commissioner Ohlhausen 
are also here today. And I'm grateful both to them, and to 
Commissioners Wright and Brill, for their insights. Each of them has 
been generous with their time. If I'm confirmed, I hope to continue the 
tradition of collegiality and consensus-oriented decision making that 
has been a hallmark of the FTC.
    It's a tradition that is marking its 100th anniversary next year. 
Since Congress passed the Federal Trade Commission Act in 1914, much 
has changed in our economy and our country. One could only imagine what 
Teddy Roosevelt and Woodrow Wilson would make of smartphones--much less 
the apps on them. And as the country has changed, so has the agency. 
But the core mission has not: enforcing the laws that protect consumers 
and promote competition, making sure that markets are free and fair, 
vital and dynamic. Our economy, built on a free and fair market, is 
what has powered the growth of the United States these past hundred 
years--and will for the next hundred years. It's what has allowed us to 
build a strong middle class and deliver the economic security of 
consumers.
    Over my career, here in the Senate, at the White House, and at the 
Department of Justice, the economic security of the middle class has 
been my focus. And I have appreciated how the FTC has worked closely 
with Congress to contribute to the well-being of America's families.
    The benefit to consumers from competition and protection from 
deception and fraud are well established. Competition leads to better 
prices, more and better choices, and innovation. Stopping fraudulent 
and predatory practices ensures that the playing field isn't tilted 
against consumers.
    In particular, I believe the FTC's work protecting those that are 
most targeted by scams or deception--such as seniors, veterans, 
children, the financially distressed--is important. My work shows a 
commitment to these issues and I will continue to work on them at the 
Commission, if I am confirmed.
    It is an honor and a privilege to be considered for the position of 
Federal Trade Commissioner. I look forward to answering your questions. 
Thank you.
                                 ______
                                 
                      a. biographical information
    1. Name (Include any former names or nicknames used): Terrell 
Pierce McSweeny (sometimes I am referred to by my husband's last name, 
generally as Terrell McSweeny Burns--although I have not legally 
changed my name).
    2. Position to which nominated: Commissioner, Federal Trade 
Commission.
    3. Date of Nomination: June 24, 2013.
    4. Address (List current place of residence and office addresses):

        Home: Information not released to the public.

        Office: U.S. Department of Justice, 950 Pennsylvania Avenue, 
        NW, Washington, D.C. 20530.

    5. Date and Place of Birth: June 13, 1975; Washington, D.C.
    6. Provide the name, position, and place of employment for your 
spouse (if married) and the names and ages of your children (including 
stepchildren and children by a previous marriage).

        Spouse: Ralph Warren Burns, Deputy Associate Director, Mass 
        Transit Officer, District of Columbia Department of 
        Transportation (DDOT); Commissioner, District of Columbia 
        Taxicab Commission; children: Warren Maverick Burns, age 5; 
        Madeleine Abselle Burns, age 2.

    7. List all college and graduate degrees. Provide year and school 
attended.

        AB, Harvard University, 1993-1997.
        JD, Georgetown University Law School, 2001-2004.

    8. List all post-undergraduate employment, and highlight all 
management level jobs held and any non-managerial jobs that relate to 
the position for which you are nominated.

   Chief Counsel for Competition Policy, U.S. Department of 
        Justice, Antitrust Division, (Feb. 2012 to present)*

   Deputy Assistant to the President, Domestic Policy Advisor 
        to the Vice President, Office of the Vice President, (Jan. 
        2009-Feb. 2012)*

   Vice President's Domestic Policy Advisory, Presidential 
        Transition, (Nov. 2009-Jan. 2009)

   Issues Director, Obama for America, (Sept. 2008-Nov. 2009)

   Deputy Chief of Staff, Policy Director, Senator Joseph R. 
        Biden Jr., (Deputy Chief of Staff April 2008-Sept. 2008; Policy 
        Director, Dec. 2005-Sept. 2008)

   Counsel, Committee on the Judiciary, Subcommittee on Crime 
        and Drugs, United States Senate (Dec. 2005-Sept. 2008)

   Associate, O'Melveny & Myers LLP (Jan. 2005-Dec. 2005) (also 
        worked as a paralegal and law clerk at O'Melveny & Myers LLP 
        during law school June 2001-Sept. 2003, Mar. 2004-Jan. 2005)

   Deputy Director of Policy, Clark for President (Sept. 2003-
        Feb. 2004)

   Assistant to the National Spokesman, Gore/Lieberman 2000 
        Inc. (May 2000-Dec. 2000)

   News Director, Allegheny Mountain Radio Network (Feb. 1998-
        May 2000)

   Director of Development, Instructor, High Rocks Educational 
        Corporation (June 1997-May 2000)

    * Denotes management or non-management position related to the 
position for which I have been nominated.

    9. Attach a copy of your resume. A copy is attached.
    10. List any advisory, consultative, honorary, or other part-time 
service or positions with Federal, State, or local governments, other 
than those listed above, within the last five years: None.
    11. List all positions held as an officer, director, trustee, 
partner, proprietor, agent, representative, or consultant of any 
corporation, company, firm, partnership, or other business, enterprise, 
educational, or other institution within the last five years: None.
    12. Please list each membership you have had during the past ten 
years or currently hold with any civic, social, charitable, 
educational, political, professional, fraternal, benevolent or 
religious organization, private club, or other membership organization. 
Include dates of membership and any positions you have held with any 
organization. Please note whether any such club or organization 
restricts membership on the basis of sex, race, color, religion, 
national origin, age, or handicap.

        Member, West Virginia Bar (currently inactive status) 2005 to 
        present.

        Member, DC Bar (active status) 2005 to present.

        Member, St. David's Episcopal Church, Washington, D.C. 2001 to 
        present.

    13. Have you ever been a candidate for and/or held a public office 
(elected, non-elected, or appointed)? If so, indicate whether any 
campaign has any outstanding debt, the amount, and whether you are 
personally liable for that debt: No.
    14. Itemize all political contributions to any individual, campaign 
organization, political party, political action committee, or similar 
entity of $500 or more for the past ten years. Also list all offices 
you have held with, and services rendered to, a state or national 
political party or election committee during the same period.
    I worked for the Gore/Lieberman campaign (as Assistant to the 
National Spokesman and Deputy Press Secretary during the Recount), 
Clark for President campaign (as Deputy Policy Director), and Obama for 
America campaign (Issues Director for the Vice President). I 
volunteered for the Kerry-Edwards campaign.
    15. List all scholarships, fellowships, honorary degrees, honorary 
society memberships, military medals, and any other special recognition 
for outstanding service or achievements.

        Ford Foundation (received undergraduate merit scholarship award 
        for study, Summer 1995).

    16. Please list each book, article, column, or publication you have 
authored, individually or with others. Also list any speeches that you 
have given on topics relevant to the position for which you have been 
nominated. Do not attach copies of these publications unless otherwise 
instructed.
    I have done my best to identify books, articles, columns, 
publications or relevant speeches, including a thorough review of 
personal files and searches of publicly available electronic databases. 
Despite my searches, there may be other materials I have been unable to 
identify, find, or remember. I have located the following:

Columns
    I worked as a local reporter in West Virginia 1997-2000. During 
that time, I authored numerous articles for the local weekly papers on 
local news and events. These were primarily published in The 
Intermountain newspaper and the Pocahontas Times.

Law Review Articles

   Tania Brief and Terrell McSweeny, Corporate Criminal 
        Liability, 40 Am. Crim. L. Rev. No. 2, Spring 2003 (Note).

   Chris Salter and Terrell McSweeny, SEC Proposes Soft Dollar 
        Interpretation, Wall Street Lawyer, vol 9, no 7, Dec 2005.

Blogs

   Why There Is No Time to Waste In Putting Cops Back on the 
        Beat, post on whitehouse.gov, Oct. 21, 2011.

   The Importance of Equal Pay for Women, post on 
        whitehouse.gov, November 17, 2010.

   Workplace Flexibility at the White House, post on 
        whitehouse.gov, April 1, 2010.

   Support for Caregivers in Health Care Reform, post on 
        whitehouse.gov, March 29, 2010.

   Work-Family Juggling, post on whitehouse.gov, February 12, 
        2010.

   A Budget That Helps Middle Class Families, post on 
        whitehouse.gov, February 1, 2010.

   Helping Middle Class Families with Soaring Child Care Costs, 
        post on whitehouse.gov, January 29, 2010.

   Caring for Caregivers, post on whitehouse.gov, January 28, 
        2010.

   Vice President Biden Leads Discussion on Middle Class 
        Families in DC, post on whitehouse.gov, Nov. 9, 2009.

   Going Green--And Saving You Money, post on whitehouse.gov, 
        Oct. 19, 2009.

   Retrofitting and the Middle Class, post on whitehouse.gov, 
        Oct 17, 2009.

   Saving and Paying for College--Back to School, post on 
        whitehouse.gov, Sept. 9, 2009.

   More Stable and Secure Health Care for Seniors, post on 
        whitehouse.gov, July 16, 2009.

   Blogging to the Middle: Improving Food Safety, post on 
        whitehouse.gov, July 7, 2009.

   Blogging to the Middle: Simplifying Financial Aid 
        Applications, post on whitehouse.gov, June 23, 2009.

Speeches/Panels

   Speech, Addressing Issues Facing Working Families, Corporate 
        Voices for Working Families, March 31, 2010.

   Panel Discussion, Economic Costs of Alzheimer's and an Elder 
        Boom: The Price Paid by Governments, Families, and Employees 
        and Employers, Center for American Progress, October 18, 2010.

   Speech, Public Safety Communications, IAFF Redmond-Barbera 
        Crossroads, August 25, 2011.

   Panel Discussion, Building Blocks for Innovation: Historical 
        and Economic Perspectives, University of Colorado Law School, 
        Silicon Flatirons, September 23, 2011.

   Panel Discussion, The Intersection of Patent Law and 
        Competition Policy, University of Colorado Law School, Silicon 
        Flatirons, October 3, 2012.

Research Assistant

   Bounty Hunters on the Prowl, John Beisner, Jessica Davidson 
        Miller, Terrell McSweeny paper for instituteforlegalreform.com, 
        May 2005.

    17. Please identify each instance in which you have testified 
orally or in writing before Congress in a governmental or non-
governmental capacity and specify the date and subject matter of each 
testimony: None.
    18. Given the current mission, major programs, and major 
operational objectives of the department/agency to which you have been 
nominated, what in your background or employment experience do you 
believe affirmatively qualifies you for appointment to the position for 
which you have been nominated, and why do you wish to serve in that 
position?
    I wish to serve as an FTC Commissioner because I strongly believe 
that two critical and intertwined missions of the FTC--competition 
enforcement and consumer protection--are crucial to insuring that 
markets are healthy and functioning well and to the economic security 
of the middle class. I have an extensive policy background in many of 
the areas that are a focus for FTC, such as-innovation, intellectual 
property, privacy, health care, and energy.
    As Chief Counsel for Competition Policy for the Department of 
Justice Antitrust Division my work has focused on effective antitrust 
enforcement and on advocating for policies that are pro-competitive, 
pro-consumer and pro-innovation. Since I have worked in the FTC's 
sister competition agency, I believe I am well qualified to also help 
the Department of Justice and FTC work efficiently together--which is 
important for effective competition enforcement.
    My policy work over the last decade in the Senate and the Executive 
Branch has focused primarily on issues related to middle class economic 
security--such as consumer protection, women's rights, health care, 
innovation and competition. Through this work, I have gained an 
understanding of the important role the FTC can play in all of these 
areas as well as the need for balanced, fact-based decision making at 
the agency.
    19. What do you believe are your responsibilities, if confirmed, to 
ensure that the department/agency has proper management and accounting 
controls, and what experience do you have in managing a large 
organization?
    Each of the five Commissioners on the Federal Trade Commission has 
an obligation to insure the proper management of the agency and that 
resources are being used effectively and efficiently. In my current 
role as Chief Counsel for Competition Policy of the Antitrust Division 
I am on the management team overseeing the Department of Justice 
Antitrust Division's enforcement and competition advocacy work--
including managing antitrust civil cases and investigations. I believe 
four things are crucial to good management of an enforcement agency: 
(1) clear priorities and expectations; (2) transparent and balanced 
decisionmaking based on facts and evidence; (3) consistent 
communication between management and case teams; and (4) efficient use 
of time and resources. It is essential that the important work of 
enforcing our consumer protection and antitrust laws is conducted in a 
way that protects consumers and competition without unduly burdening 
businesses.
    20. What do you believe to be the top three challenges facing the 
department/agency, and why?
    I believe the top three challenges facing the Federal Trade 
Commission are: (1) maintaining effective and efficient operations 
within the current budget constraints; (2) making consensus-oriented 
bipartisan decisions; and (3) protecting consumers and competition in 
rapidly evolving sectors such as technology markets and health care.
    First, like all Federal agencies, the FTC must insure that it can 
maintain its mission in a challenging budget environment. I look 
forward to working closely with the Chairwoman and other Commissioners 
to make sure the agency is using its resources efficiently and 
effectively to protect consumers and competition.
    I strongly believe that it is crucial for the Democratic and 
Republican Commissioners to find common areas of agreement when 
possible and to continue to work toward consensus in decision making. 
In my experience, the best results come from processes in which all 
views are discussed and understood. The nature and structure of the 
Commission requires this type of engagement and I have been impressed 
with the positive track record of bipartisanship at the Commission. If 
confirmed, I will be committed to maintaining effective working 
relationships with the other FTC Commissioners.
    Finally, I believe that the FTC plays an important role in 
identifying and, if necessary, taking action to address competitive and 
consumer harm in several sectors--including two that are undergoing 
rapid change: technology and health care. I think it is important that 
the FTC take a balanced and fact-based approach to enforcement in these 
sectors--and make sure that it is using multiple tools--such as 
research and consumer education--to understand and address issues as 
they arise.
                   b. potential conflicts of interest
    1. Describe all financial arrangements, deferred compensation 
agreements, and other continuing dealings with business associates, 
clients, or customers. Please include information related to retirement 
accounts.
    I continue to participate in a 40l(k) retirement plan via my former 
employer O'Melveny & Myers LLP. The plan is independently managed by 
Fidelity. My former employer has not made (and will not in the future 
make) contributions to this account since my departure from the firm.
    2. Do you have any commitments or agreements, formal or informal, 
to maintain employment, affiliation, or practice with any business, 
association or other organization during your appointment? If so, 
please explain. No.
    3. Indicate any investments, obligations, liabilities, or other 
relationships which could involve potential conflicts of interest in 
the position to which you have been nominated.
    In connection with the nomination process, I have consulted with 
the Office of Government Ethics and the Federal Trade Commission's 
Designated Agency Ethics Official to identify potential conflicts of 
interest. Any potential conflicts of interest will be resolved in 
accordance with the terms of the ethics agreement that I have entered 
into with the Commission's Designated Ethics Official and that has been 
provided to the Committee. I am not aware of any other conflicts of 
interest.
    4. Describe any business relationship, dealing, or financial 
transaction which you have had during the last ten years, whether for 
yourself, on behalf of a client, or acting as an agent, that could in 
any way constitute or result in a possible conflict of interest in the 
position to which you have been nominated.
    In connection with the nomination process, I have consulted with 
the Office of Government Ethics and the Federal Trade Commission's 
Designated Agency Ethics Official to identify potential conflicts of 
interest. Any potential conflicts of interest will be resolved in 
accordance with the terms of the ethics agreement that I have entered 
into with the Commission's Designated Agency Ethics Official and that 
has been provided to this Committee. I am not aware of any other 
conflicts of interest.
    5. Describe any activity during the past ten years in which you 
have been engaged for the purpose of directly or indirectly influencing 
the passage, defeat, or modification of any legislation or affecting 
the administration and execution of law or public policy.
    For the past ten years I have been involved, through my work in the 
Senate and subsequently in the Obama Administration, in legislative and 
public policy debates on a wide range of issues including: criminal 
justice, domestic violence, human trafficking, immigration, equal pay, 
work/family balance, education, health care, energy/environment, 
telecommunications, intellectual property and Internet policy. I did 
not lobby.
    6. Explain how you will resolve any potential conflict of interest, 
including any that may be disclosed by your responses to the above 
items.
    Any potential conflicts of interest will be resolved in accordance 
with the terms of the ethics agreement that I have entered into with 
the Commission's Designated Agency Ethics Official and that has been 
provided to this Committee.
                            c. legal matters
    1. Have you ever been disciplined or cited for a breach of ethics 
by, or been the subject of a complaint to any court, administrative 
agency, professional association, disciplinary committee, or other 
professional group? If so, please explain: No.
    2. Have you ever been investigated, arrested, charged, or held by 
any Federal, State, or other law enforcement authority of any Federal, 
State, county, or municipal entity, other than for a minor traffic 
offense? If so, please explain: No.
    3. Have you or any business of which you are or were an officer 
ever been involved as a party in an administrative agency proceeding or 
civil litigation? If so, please explain.
    Yes--I am currently involved in an DC administrative proceeding 
because I am contesting a $75 fine I received from the DC Department of 
Public Works for solid waste not properly stored in the alley behind my 
house. I am disputing the ticket, because the trash was not mine. I am 
currently awaiting a decision by the administrative judge. Case No: 
2012-DPW K518960
    4. Have you ever been convicted (including pleas of guilty or nolo 
contendere) of any criminal violation other than a minor traffic 
offense? If so, please explain: No.
    5. Have you ever been accused, formally or informally, of sexual 
harassment or discrimination on the basis of sex, race, religion, or 
any other basis? If so, please explain: No.
    6. Please advise the Committee of any additional information, 
favorable or unfavorable, which you feel should be disclosed in 
connection with your nomination. None to my knowledge.
                     d. relationship with committee
    1. Will you ensure that your department/agency complies with 
deadlines for information set by congressional committees? Yes.
    2. Will you ensure that your department/agency does whatever it can 
to protect congressional witnesses and whistleblowers from reprisal for 
their testimony and disclosures? Yes.
    3. Will you cooperate in providing the Committee with requested 
witnesses, including technical experts and career employees, with 
firsthand knowledge of matters of interest to the Committee? Yes.
    4. Are you willing to appear and testify before any duly 
constituted committee of the Congress on such occasions as you may be 
reasonably requested to do so? Yes.
                                 ______
                                 
                      Resume of Terrell McSweeny
Work Experience

U.S. Department of Justice, Antitrust Division, Washington, D.C.
Chief Counsel for Competition Policy, Feb. 2012-Present
Manage antitrust merger and conduct investigations and enforcement 
actions in a variety of sectors including: Telecommunications, 
transportation, financial services and health care. Additional 
responsibilities include: Managing the division's policy section, 
overseeing competition advocacy projects (such as participation in 
other agency rulemakings, speeches, appellate filings), leading the 
division's intergovernmental and Congressional relations, and 
representing the Antitrust Division at conferences and speaking 
engagements.

Office of the Vice President, Washington, D.C.
Deputy Assistant to the President, Domestic Policy Advisor to the Vice 
President, Jan. 2009-Feb. 2012
Advised the President and Vice President on domestic policy; worked on 
administration policy development, legislative negotiations and 
implementation in domestic and economic areas including: Health care, 
innovation, privacy, telecommunications/Internet, intellectual 
property, criminal justice/law enforcement/drug policy, energy, 
immigration, education, rural policy, women's issues and middle class 
economic security (work/family, retirement, labor); coordinated with 
communications team on message development; managed domestic and 
economic policy office for the Vice President; TS clearance.

Obama for America, Chicago, Illinois
Issues Director for the Vice President, Sept. 2008-Jan. 2009
Travelled with Vice Presidential candidate Joe Biden to advise him on 
the campaign's domestic and economic policies; assisted with speeches 
and debate prep. Managed domestic and economic policy for the Vice 
President-elect Biden during the Presidential Transition.

Senator Joseph R. Biden Jr., United States Senate, Washington, D.C.
Deputy Chief of Staff and Policy Director, Dec. 2005-Sept. 2008
Managed staff in Senate Biden's personal offices in Washington, D.C. 
and Delaware; supervised communications, legislative and policy agenda 
in wide range of areas including: middle class economic security, 
education, health care, energy and environment, IP/IT and criminal 
justice.

Committee on the Judiciary, United States Senate, Washington, D.C.
Counsel, Dec. 2005-Sept. 2008
Served as counsel to Senator Joseph R. Biden Jr. in several areas 
including: criminal justice, civil rights, domestic violence, human 
trafficking, intellectual property, immigration, environmental crime, 
and judicial nominations; assisted in writing several pieces of 
legislation including some that were enacted such as the Second Chance 
Act, the Violence Against Women Act, and the Trafficking Victims 
Protection Act.

O'Melveny & Myers LLP, Washington, D.C.
Associate, June 2001-Sept. 2003 (law clerk), Mar. 2004-Dec. 2005 
(associate)
Worked primarily with Strategic Counseling Practice Group on 
representations including: defending Congressional investigations; 
representing clients in antitrust matters before EU and U.S. 
regulators; counseling for non-profit advocacy organizations; guiding 
clients through election law and ethics restrictions on political 
activities; drafting issue briefings and articles.

Clark for President, Little Rock, AR
Deputy Director of Policy, Sept. 2003-Feb. 2004
Responsible for policy development for General Wesley Clark on a wide 
range of issues including: energy and environment, poverty, civil 
rights, civil justice reform, crime, immigration, women's issues, 
education, and child care. Prepared General Clark for public 
appearances and debates.

Gore/Lieberman 2000 Inc., Nashville, TN
Gore/Lieberman Recount Committee, Tallahassee, FL
Deputy Press Secretary/Assistant to National Spokesman, May 2000-Dec. 
13, 2000
Managed press requests for Tallahassee-based recount legal team; 
briefed media; booked and staffed media interviews for legal team 
leaders and surrogates; coordinated press conferences. Coordinated with 
the Vice President's policy and message teams to write guidance and 
talking points on policy issues for daily briefings; assisted in 
drafting press releases and communications materials.

Allegheny Mountain Radio Network, Dunmore, WV
News Director, Feb. 1998-May 2000
Produced and directed local news for network of four public radio 
stations; freelance producer for state-wide public radio affiliate, 
West Virginia Public Radio; wrote and produced daily news programming 
for AMR network; anchored one-hour daily local news program and weekend 
news talk show; supervised AMR network public relations and outreach; 
and reported for local newspapers.

High Rocks Educational Corporation, Mill Point, WV
Director of Development/Instructor, June 1997-May 2000
Developed an after-school and summer leadership program for teenage 
girls from south eastern West Virginia; designed and implemented an 
after-school program for elementary and middle school students in 
partnership with public schools; managed fundraising and financial 
planning for HREC, a 501(c)3 non-profit.

Clinton-Gore '96, Washington, D.C.
Assistant to Director of Scheduling and Advance, June-Nov. 1996
Coordinated communications between message team, advance teams and 
scheduling desks for campaign events for the President, First lady, and 
Vice-President.

United States Senate, Washington, D.C.
Director, Summer Senate Page Program, Summer 1993 & 1994/Senate Page 
1991-1992
Supervised summer Democratic Senate page program; assisted majority 
floor staff and Democratic Cloakroom staff in communicating with 
Senators and answering procedural questions.
Education
Georgetown University Law School, Washington, D.C.
JD; cum laude, December 2004
Executive Editor, American Criminal Law Review
Admitted to practice: West Virginia, District of Columbia

Harvard University, Cambridge, MA
AB, magna cum laude, American Folklore & History and Literature, June 
1997

References available upon request.

    The Chairman. Thank you very much.
    We have a massive calling people operation going on right 
now. Committee staff is headed in all directions, with ropes 
and chains and all kinds of things, to get people over here. 
This is embarrassing to the Committee not to have them here.
    Senator Thune, do you want me to go ahead and shall we 
start questioning? I mean, it's sort of like really shutting 
those other five out.
    Senator Thune. Your call, Mr. Chairman. I think I'm 
certainly happy to proceed.
    The Chairman. OK. See, bipartisan.
    Kay Bailey is in town. She wants to drop by.
    Mr. O'Rielly, even though you failed to ask your girlfriend 
to stand, I'm going to forgive you for that.
    [Laughter.]
    The Chairman. I think that one's blown.
    [Laughter.]
    The Chairman. You know from our conversation that I care an 
awful lot about the E-Rate program. Olympia Snowe, Republican 
Senator not with us now--she didn't run again--we started that 
in the mid-90s and it was opposed on all fronts. I wrote every 
telecommunications company asking them not to delay the E-Rate 
program or to take it to court. As a result of my letter, all 
of them took it to the Supreme Court, and they were all 
defeated, on perfectly acceptable and solid grounds.
    But any program that starts out trying to reach everybody 
in the country, one, isn't going to do so. But we're now up 
to--we're in the 90 percent, but that leaves out still millions 
of young people and adults and libraries. The reason we put in 
libraries is because you can't very well get adults into 
schools, and the libraries turn out to have long waiting lines 
of people trying to get online information about jobs that are 
available. It's very, very important, the libraries.
    I care very deeply about the future of this. Earlier this 
year I received public commitments from all of the current 
sitting commissioners to work with me, us, to update and 
strengthen the E-Rate program. So today I ask the same question 
to you that I asked of them: Mr. O'Rielly, if confirmed would 
you commit to working with me, us, to protect E-Rate's 
accomplishments and to update the program to meet the present 
and future needs of our schools and libraries? You can answer 
that with a yes or a no, or you can----
    Mr. O'Rielly. Thank you, Mr. Chairman. Yes.
    The Chairman. I like that.
    We discussed yesterday, did we not, that the original 
language, not only of the bill--and you expressed, as you did 
in your testimony, the desire to follow the law. Back in that 
original telecommunications bill, there was a lot of 
flexibility built in. They understood that things were going to 
be difficult and we would have to make adjustments as we went 
along.
    Ms. McSweeny, as Chairman of the Commerce Committee, 
consumer protection is one of my absolute priorities. In fact, 
it's almost the main one. This used to be a little bit 
different kind of a committee. We spent more time on railroads 
than we did on people. We've changed that now. We have an 
investigation committee with the power of subpoena and we play 
it tough. We're very aggressive in terms of insurance companies 
and telecommunications companies that are trying to take 
advantage of consumers. We've actually had some effect on that.
    Some people--I think the FTC has to always remain vigilant 
and aggressive in taking on people who unfairly or deceptively 
profit from American consumers. Some people say, however, that 
the FTC should defer to industry self-regulation whenever 
possible, even if these voluntary regulations are insufficient 
to protect consumers, in concept as well as in carrying out 
perhaps. This is a debate we are having right now with Internet 
advertisers about consumers' online privacy.
    Ms. McSweeny, what is the FTC's role in protecting 
consumers and what role does industry self-regulation play in 
protecting consumers?
    Ms. McSweeny. Mr. Chairman, as you said, the Federal Trade 
Commission is the premier consumer protection enforcement 
agency in the country, and I think its enforcement mission is 
vital to protecting consumers' privacy on line. I think it has 
a good recent track record of using that authority and I look 
forward to working with my fellow commissioners to continue to 
do so.
    I understand the frustration that you're expressing, 
particularly in the privacy space, of efforts toward self-
regulation, and I think I'm hopeful that those kinds of multi-
stakeholder processes can continue to inform and guide 
policymaking in this area, which I think is very important in 
making sure that consumers have meaningful privacy protections 
on line.
    The Chairman. Thank you.
    Senator Thune.
    Senator Thune. Thank you, Mr. Chairman.
    Ms. McSweeny, you were a co-author of the Justice 
Department's ex parte submission filed in the FCC's Mobile 
Spectrum Holdings proceeding and, as you may know, I've been 
somewhat critical of that filing. Like many of my Republican 
colleagues, I believe the FCC should allow all qualified and 
interested parties to participate freely in spectrum auctions, 
rather than micromanaging auction rules in an effort to 
predetermine individual winners and losers.
    I'm wondering if while preparing the ex parte submission, 
did you and other DOJ staff review previous FCC spectrum 
auctions to analyze what effects the participation of certain 
carriers has had on the participation of others. Then a second 
question: Did the DOJ find any positive correlation between 
auction participation and greater bidding restrictions in past 
spectrum auctions?
    Ms. McSweeny. Senator, thanks for the question. We at the 
division do from time to time comment on issues related to 
competition and competition policy in other agency rulemakings, 
and the FCC Mobile Spectrum Holdings comment that the Antitrust 
Division filed was a part of that competition advocacy.
    As an expert agency in competition and markets, the 
comment's focus is mainly on flagging the potential impact on 
competitive dynamics of Spectrum Holdings. We do believe that 
spectrum is a key input in the wireless space and the comment 
that the division wrote, which I was involved in drafting along 
with the experts in our Telecommunications Section and our 
Economics Section and others at the Department, was focused on 
flagging that competition concern and suggesting the FCC think 
about it in designing its Mobile Spectrum Holdings rule.
    In that context, we didn't take a careful review of how to 
design the auction. I think the Department of Justice Antitrust 
Division doesn't hold itself out to be an expert in auction 
design, merely an expert in competition. So the thrust of the 
comment is really to focus on the impact on competition and 
consumers. So that's primarily what we were articulating there.
    Senator Thune. So you didn't look at the correlation in 
past auctions, spectrum auctions, between participation and 
bidding restrictions?
    Ms. McSweeny. I did not personally, no.
    Senator Thune. Mr. O'Rielly, you've observed FCC spectrum 
auctions for nearly two decades. I think we all tend to agree 
that most successful auctions are those that maximize bidders, 
maximize revenue, and most importantly maximize deployment of 
the spectrum. These goals maintain a competitive market, 
provide American taxpayers a return for the use of a public 
resource, and deliver modern communications to all Americans, 
including those in rural areas such as my home state of South 
Dakota.
    Given your experience and based on what has actually 
happened in previous auctions, can you identify any traits that 
make an auction successful and have you observed traits that 
reduce bidders' revenue or deployment?
    Mr. O'Rielly. Thank you, Senator, for the question. Let me 
address the second part, and that is that in my experience--and 
I've followed these spectrum auctions exceptionally close for, 
as you highlighted, 20 years--when the Commission has tried to 
micromanage or manipulate the spectrum auctions, it has often 
been problematic.
    Second, when they have done such actions it has led to a 
situation down the road where the person who has obtained the 
license at either a discount or at the benefit of someone else 
being excluded winds up flipping the license to another 
participant. Therefore the taxpayer, the ratepayer, the benefit 
has been lost to the Federal Government.
    So I'm cautious as we enter the space to want to impose any 
kind of obligations on bidding eligibility.
    Senator Thune. I'm going to shift gears for just a minute, 
but again a question for you, Mr. O'Rielly. Congress has 
required that passenger railroads and freight railroads 
carrying certain hazardous materials install positive train 
control technology by December 31 of the year 2015. In their 
efforts to meet this deadline, railroads have discovered that 
they're going to need to construct thousands of new 
communications towers in order to install positive train 
control.
    Since each of these towers has to be approved by the FCC, 
this could be a very lengthy process unless the FCC is able to 
streamline that effort. In fact, the FCC is reportedly so 
overwhelmed by the coming influx of PTC-related applications 
that it's advised railroads not to proceed with any 
applications until the Commission can come up with an expedited 
protocol for processing these applications. As the Government 
Accountability Office reported in August, the impact of halting 
construction on the towers may result in additional delays in 
railroads' timeframes for implementation of PTC.
    Let me first just ask the general question: Are you aware 
of this issue?
    Mr. O'Rielly. Thank you, Senator. I would suggest I'm not 
an expert in trains, but I am aware of this issue and how it 
interacts with the responsibilities of the Federal 
Communications Commission and the need for additional tower 
siting.
    Senator Thune. And if confirmed would you commit to working 
with Congress, with the FRA, and with passenger and freight 
rail industry to help implement PTC, which faces a number of 
technical challenges that are no doubt going to require an 
extension of the looming deadline that most, if not all, 
railroads are going to be unable to meet?
    Mr. O'Rielly. Yes, sir. I would want to work with all 
stakeholders, and especially this committee, on working through 
the issues on tower siting for the PTC going forward.
    Senator Thune. I would just be curious--and this is more of 
a general question. But as you know, the so-called IP 
transition issue's going to be one of the top challenges facing 
the FCC over the coming years. I'm wondering, if confirmed, how 
you would approach this important issue and what impact you 
think the IP transition will have on rural areas like South 
Dakota? In addition, what benefits do you see the IP transition 
providing to communications providers and consumers in rural 
areas?
    Mr. O'Rielly. Thank you. I have difficulty when people use 
the word ``transition'' for IP. As I highlighted in my 
testimony, I think the Internet is a very disruptive technology 
and that's to the benefit of consumers. So it's difficult to 
manage and control. However, the Commission has explored the 
opportunity of running or testing a number of trials in this 
space and I would be supportive of looking at what public 
policy issues may come from such trials and I'd be open to 
that.
    I do believe that the IP transition has an opportunity to 
have benefits in all corners of our Nation, especially in rural 
America, where it can lower the cost for operating, especially 
in far-reaching rural districts.
    Senator Thune. Mr. Chairman, my time has expired. Thank 
you.
    The Chairman. And thank you, Senator Thune.
    Senator Blunt.

                 STATEMENT OF HON. ROY BLUNT, 
                   U.S. SENATOR FROM MISSOURI

    Senator Blunt. Thank you, Chairman. It could be that our 
attendance is, just looking at people who are coming in today, 
these two nominees are both extraordinarily well qualified and 
have great backgrounds that many people in the Senate were 
already familiar with, and that may explain part of the reason 
that some of our members thought this was not the most pressing 
hearing that we've ever had. These are two really good nominees 
and I'm glad to see them here.
    Mr. O'Rielly, one of the questions that's come up recently, 
and it came up with the chairman nominee on decency as it 
relates to broadcasting--I think there have been no enforcement 
actions by the FCC on this topic in the last 4 years. When the 
FCC proposed changes there were almost 100,000 comments, almost 
all of which objected to the changes. So apparently people that 
comment don't want to change the policy and the FCC hasn't 
wanted to enforce it.
    Do you have a view on that?
    Mr. O'Rielly. Thank you, Senator, for the question. I would 
commit to you that I will do everything I can to help parents 
and families protect their children from unwanted material. 
There are some limitations in this space, given technology 
development and also Supreme Court precedent.
    The issue you cite is an item that the Commission has 
initiated, the former Chairman initiated, in terms of a public 
notice whether they should change the rules and opening up that 
for a comment cycle. It was not an actually NPRM. So it's the 
start of the process, and my understanding, hearing from a 
number of members in this committee and also from a number of 
folks on the outside, they do not see the interest in changing 
the standard. I certainly am aware of those concerns.
    In terms of the number of complaints that have been 
dismissed, I'd want to look at the record and see what the 
reasons are for the dismissal. There were a number of different 
reasons given, but I want to work with the Commission and 
understand exactly how those dismissals went about.
    Senator Blunt. Do you have a view that the current rules 
are unenforceable?
    Mr. O'Rielly. I think the Commission has an obligation to 
enforce the statute and its rules fully and I would commit to 
that.
    Senator Blunt. On one of your comments, one of your 
principles that I agree with particularly as it relates to the 
Congress, and only slightly less to the Commission, is the idea 
with the change, rapid changes in technology, the likelihood 
that we would actually pass a law that would solve a problem 
while it was still the problem is almost zero in my view.
    Having gone through a couple of telecommunications bills, 
every time we did one in the House I noticed by the time we got 
to the second one none of the things we argued about in the 
previous debate were even at issue any more.
    Do you want to expand on that just a little bit on how you 
think that same obstacle can be overcome or better dealt with 
or looked at by the Commission?
    Mr. O'Rielly. Thank you for your question. I would say that 
I am always open and deferential to the Committee. So if the 
Committee seeks to pass legislation, I will enforce it. But to 
your point, Senator, and the point I made in my opening 
statement, there is a difficulty in trying to write laws for 
technology that's changing at a very rapid pace. The Internet 
is not something that stops and waits for either the Congress 
or for the FCC. Therefore, in some instances it's writing 
legislation or FCC regulations that are flexible and also with 
a very light touch.
    Senator Blunt. Thank you.
    Ms. McSweeny, I would assume the that same principle to 
some extent creates a new challenge at the FTC, where the way 
people communicate information, how quickly they communicate 
it, how hard it is to capture all of it, is a challenge there, 
too. Any thoughts about how to meet that challenge?
    Ms. McSweeny. Senator, I think you're right. I think it can 
be a very complicated task to keep up with highly dynamic 
sectors, such as the ever-evolving communications sector and 
activity on the Internet. I do think, though, that the FTC, 
which is primarily an enforcement agency, is up to that task by 
taking each case and looking at the evidence before it and 
proceeding judiciously on a case by case basis.
    Senator Blunt. The only other question I have for you, and 
I may submit more later, would be on the use at the FTC of 
consent decrees for individual companies as opposed to a formal 
review and rulemaking process or going through the court system 
itself. Would you explain your views on the use of consent 
decrees and when it is appropriate for the FTC to enter into 
them?
    Ms. McSweeny. I understand the concern and certainly look 
forward to learning more about it if I am confirmed and to 
speaking with all of my fellow commissioners about it. I would 
say in my experience at the Antitrust Division and with 
antitrust enforcement particularly, the FTC is operating the 
way Congress designed it--that is through the process Congress 
designed. I think it's important that the Commission proceed 
judiciously and use all the resources available to it in 
enforcing both competition and consumer protection law.
    Senator Blunt. Thank you.
    Thank you, Chairman.
    The Chairman. Thank you, Senator Blunt.
    Senator Chiesa.

                STATEMENT OF HON. JEFF CHIESA, 
                  U.S. SENATOR FROM NEW JERSEY

    Senator Chiesa. Thank you, Mr. Chairman.
    Good afternoon to both of you. Congratulations on your 
nominations and congratulations to your families. It's a 
special day for you.
    Ms. McSweeny, in your opening statement you talked about 
particularly vulnerable people who get picked on and defrauded. 
The elderly was a group that you mentioned. You also discussed 
some other groups. What are the things, both from an 
enforcement standpoint and from potentially an educational 
standpoint that you can take to both protect these victims 
and--in my state we know, and there are so many of these, and 
it's especially with the elderly, I think because of the--it's 
OK. She may have a question.
    [Laughter.]
    Senator Chiesa. I know that because of the sophistication 
and unfamiliarity with some of the technology that exists, our 
elderly population in New Jersey and I'm sure in other states 
get targeted. So I want to know your thoughts both from an 
educational standpoint and an enforcement standpoint, things 
that you think you can do in your new position?
    Ms. McSweeny. Senator, I do think focusing on vulnerable 
groups is incredibly important, and I'd add children to that 
list as well. Thank you for your patience with mine.
    I'd say the issue that you're raising is a very important 
one, and I'm glad you mentioned education as a part of it. When 
Congress created the FTC, they did envision, in addition to the 
enforcement mission, an education component to that as well. I 
think the FTC has been doing this well, but I want to continue 
to make sure that we keep focused on it.
    It's important to work with sister agencies that may have 
jurisdiction that is helpful, and I think it's equally 
important to work with states and state Attorneys General in 
particular to make sure that we are not only getting 
information in real time about scams that are out there, but 
we're getting the material to seniors and their caregivers as 
quickly as possible that explains what those scams are.
    And of course, the enforcement piece of this is also 
important. To the extent groups are being targeted by 
fraudsters, we should be as much as possible prioritizing 
enforcement against them.
    Senator Chiesa. I think the state Attorneys General would 
be a great resource for you because they're at the front line. 
A lot of them have consumer protection as part of their 
obligations in their states.
    Are there any steps being taken now--and I'm showing some 
of my unfamiliarity--on the educational component? In other 
words, you're not in a position to meet, but is there a way for 
you to coordinate with the state Attorneys General or other 
consumer protection advocates in the states so that this 
information can get out?
    I talk about the older population just because, as I said, 
in my experience in trying to enforce consumer protection laws, 
we know that that's where they go. It's all kinds of horrible 
ways. One of the scams that I remember was getting a call in 
the middle of the night from someone claiming to be your 
grandchild--your grandchild's friend saying: I'm in jail, your 
granddaughter's in jail; we need you to send us a money order 
right now, because, as you know, it's much harder to get--once 
that money's out the door, it's gone.
    Many people are on fixed incomes. Many people have limited 
resources. Certainly the personal heartache that goes along 
with that is indescribable.
    So I'm wondering if you've--I'd just ask this more as a 
request, that you talk to your colleagues and you make every 
effort to get that information out, because when you start to 
arm people with the information to make those decisions and to 
understand what might be coming, they're in a much better 
position to defend themselves, because it's very hard to unwind 
those situations once they've occurred.
    Ms. McSweeny. Absolutely, Senator, I commit to doing that 
certainly, and I look forward to working with you more to make 
sure that we're getting the information out quickly.
    Senator Chiesa. Terrific. Thank you very much.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator.
    Senator Cantwell.

               STATEMENT OF HON. MARIA CANTWELL, 
                  U.S. SENATOR FROM WASHINGTON

    Senator Cantwell. Thank you, Mr. Chairman, and thank you 
for holding this important hearing on these two nominees.
    Ms. McSweeny, we had a chance to talk a little bit about 
the new authority that the FTC was given as it relates to 
market manipulation on fuel prices. Obviously, the West Coast 
has been hit by high fuel prices and refinery shutdowns. So I 
wanted to get a sense from you if you will work to ensure that 
the FTC uses this authority of anti-manipulation to investigate 
anomalous gas prices and to make sure that the markets are safe 
from manipulation and anticompetitive behavior.
    Ms. McSweeny. Yes, Senator, absolutely. I think it's very 
important. As we discussed, fuel and energy costs really hit 
consumers directly in their pocketbook very quickly. So I think 
it's a very important priority.
    Senator Cantwell. What do you think that you can bring to 
the FTC to get them to understand this shift in policy? What 
can they do to work with other agencies, even in a task force 
environment, to accomplish this kind of oversight?
    Ms. McSweeny. I certainly understand the benefit of 
interagency collaborations. We do that at the Antitrust 
Division and the Department of Justice to combat fraud. I think 
it's very important, and I'd be happy to commit to working with 
our sister independent commissions as well as other agencies 
with expertise. I look forward to learning more about what the 
FTC is doing and I will speak with all of my fellow 
Commissioners about that as well if I'm confirmed.
    Senator Cantwell. How big of an issue do you think the 
issue of gas prices are for consumers?
    Ms. McSweeny. I'm not an expert on that question, but I am 
a consumer and I appreciate that energy costs can be very 
significant. I have worked on middle class economic security 
policies for most of my career and understand how very real 
that pressure can be on families, particularly when they have 
tight budgets. So I think it's a very important issue and I 
understand your concern with it.
    Senator Cantwell. Thank you.
    Mr. O'Rielly, in your area of policy the issue of media 
ownership is one that residents of my state are very interested 
in and have continued to be interested in for a long period of 
time. Do you think that in some of these individual markets the 
broadcasters are abusing this ability; they have these joint 
agreements and effectively are getting around what is currently 
there to set limits on media ownership? You know, they'll 
basically come in and virtually work together on all the 
activities except for 15 percent as a way to say, OK, well, 
we're not crossing that line, but in reality they are.
    Mr. O'Rielly. Thank you, Senator, for the question. I would 
say first the Commission has an obligation to complete its 
media ownership proceeding, as required by the deadline as 
established by the Congress, and it has not done so. So we're 
long past the question of answering a number of different media 
ownership limitations and whether they should be relaxed or 
kept the same.
    That gets to the part of your question, are companies using 
a number of different arrangements to get around those 
situations, given that the rules have not been relaxed? I would 
say that there are situations where companies are trying to 
work within the current environment of the media landscape, 
that they would like to do things if the Commission would move 
forward on its proceeding.
    Senator Cantwell. Well, how do you look at the issue 
overall, given that they haven't completed it, but yet here's a 
Congress in a bipartisan fashion that have said you have to 
have a diversity of voices and your current rulings haven't 
achieved that? What would you bring to the----
    Mr. O'Rielly. I would want to look at the complete record 
in the situation. There have been a number of studies done by 
the Commission. The commission just concluded one study by an 
outside party on this question, and I would want to look at the 
entire record. I am open to exploring, given what the record 
would suggest, relaxing some of the media ownership rules, but 
I'd want to look at the entire record and hear from all 
stakeholders.
    Senator Cantwell. Well, I'm very concerned about relaxing 
the ownership rules and having a consolidation of voices. So 
I'm impressed by your statement now twice about the Internet 
and understanding that it moves a lot faster than we do. So I'm 
glad you get and understand that. That means a lot of policies 
that we could pass will be moot by the time they're actually 
implemented.
    At the same time, I think a lot of people in the media 
space are trying to use the Internet as an excuse to say we 
ought to have a concentration of voices. And I can guarantee 
you, because Seattle will turn out thousands of people on a 
moment's notice to debate this issue, that they don't like to 
be force-fed by a concentration of media that says, this is 
what you're going to hear, or this is what you're going to 
listen to. We wouldn't have the alternative music scene, we 
wouldn't have a lot of different things in Seattle, if we 
didn't have a lot of diversity. So I hope that you will look at 
that issue the same way you're looking at this Internet issue 
and come to grips with the fact that concentration even the 
courts are saying is a big problem.
    Mr. O'Rielly. Yes, Senator, I commit to you I will.
    Senator Cantwell. Thank you.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Cantwell.

                 STATEMENT OF HON. MARK PRYOR, 
                   U.S. SENATOR FROM ARKANSAS

    Senator Pryor. Thank you, Mr. Chairman.
    I first want to thank Ms. McSweeny for mentioning my 
father. I appreciate that. He obviously loved working with the 
chairman of this committee and they were Governors together and 
in the Senate together. So thank you for mentioning him.
    Mr. O'Rielly, I have a question for you and I really want 
to pick up on the last thing you said during your testimony, 
where you said ``Stay strong for freedom.'' I'm curious what 
you mean by that and how that applies to your position at the 
FCC?
    Mr. O'Rielly. Sure. And I have intertwined and interwoven 
it into my opening statement that's a lot longer. I think, as I 
highlighted regarding the Internet, I think the Internet is an 
opportunity to bring greater freedom to our citizens, expanding 
the number of voices on the Internet, expanding the number of 
media opportunities. To Senator Cantwell's point, in terms of 
some instances they're reduplicative of existing voices. In 
other instances it provides a new opportunity for voices, an 
opportunity to express throughout the globe things that can't 
be done today or in the past. You look at what's happening in 
foreign circumstances, say whether it's in Egypt or Syria or a 
number of instances, where the opportunity the Internet brings 
to our people is--well, it's overwhelming.
    I think that freedom itself is intertwined to our overall 
goals. I had an opportunity to look back at the Gettysburg 
Address and in two instances--it's very short, 270 words--
Lincoln highlights liberty and freedom, in two separate--the 
opening and the closing. So I think those are some of our 
general charges.
    Senator Pryor. So from your standpoint is freedom and 
liberty just about the Internet, or is it about all the other 
things you do at the FCC?
    Mr. O'Rielly. I think it works with everything in the FCC. 
I think there's an opportunity to--as I highlighted in my 
statement, there's an opportunity to reduce regulations that 
may be too burdensome, but there's an opportunity still to 
protect consumers, as we've highlighted before. So it's 
intertwined to everything we do.
    Senator Pryor. The other thing I noticed in your 
statement--and I appreciate you mentioning the staff and I 
appreciate that, I really do, because the staff works very hard 
around here and they get very little credit for what they do. 
But you also basically--you know, the vast majority of the 
stuff that you thanked were Republicans. Do you also work with 
Democrats?
    Mr. O'Rielly. Well, actually I highlighted that I worked 
with many staff on this committee extensively. I worked with a 
number of staff, including your staff on a number of projects. 
So I hope I didn't--I was highlighting a number of offices that 
I worked with and then I highlighted all the other staff that 
were not part of people I worked with, but including the staff 
on this dais, the staff in the audience, the plethora of staff 
that have gone on to other challenges. So I did not mean to 
suggest that it was just Republicans.
    Senator Pryor. I guess the more important question is 
whether you'll work with Democrats on the FCC.
    Mr. O'Rielly. Absolutely. I've had an opportunity to meet 
with the members of the Commission and I look forward to 
working with them on a number of items. As I pledged to you in 
my opening statement, I think it's my obligation to work with 
the Commission to address the pressing issues and bring 
certainty to the marketplace, and I will certainly work with 
all my colleagues on that charge.
    Senator Pryor. I just think that it's important for all of 
us as Senators when we're thinking about confirming nominees to 
think about how they will conduct themselves as commissioners. 
And the last thing we need on these commissions is partisan 
divide. I've seen that in a few commissions. I don't want to 
see that in the FCC. I don't want to see more of it in other 
commissions.
    I want to just hear your thoughts on how you can ensure 
that there's not partisan divide at the FCC?
    Mr. O'Rielly. I believe my experience has highlighted a 
number of instances where I've worked across the aisle in a 
number of different forums. I worked extensively with the 
members of this committee on the spectrum auction item that's 
very important to the chairman. We worked in a bipartisan 
manner to in some regards fight back some ideas in the House.
    In other instances I've worked with a number of the members 
of this committee on behalf of my former boss, Senator Sununu, 
worked with your office on a number of items. I've worked with 
Senator Cantwell on low power FM. I worked with her staff 
extensively on unlicensed spectrum. So I think I have a history 
of working both sides of the aisle on issues in communications 
policy.
    Typically, communications policy is not overtly partisan. 
There are a couple issues that do bleed in that space, but 
there are very few and far between in my experience.
    Senator Pryor. It shouldn't be overly partisan. But just in 
hearing your testimony, it raised a red flag with me about how 
nonpartisan you can be as a Commissioner.
    I'm about out of time here. I have several questions that 
I'll submit for the record. But let me just ask about urban 
America versus rural America on broadband. You know, this has 
been a challenge, whether it was with electricity back in the 
old days or telephone back in the old days. But now it's rural 
broadband.
    How can we increase the deployment and the take rate for 
rural America for broadband?
    Mr. O'Rielly. Yes, Senator, thank you for the question. The 
commission has an open proceeding as part of its reform of 
universal service. It provides a number of funding 
opportunities for subsidies to provide broadband in rural 
America and increase its take rate. We're going to continue to 
make modifications, if I'm lucky enough to be confirmed, to 
make modifications to those to address--in meeting with a 
number of the Senators of this committee, there were a number 
of items pointed and problems that were highlighted with the 
Commission's current reform item. I'd want to work with the 
members of this committee and the Commission and all 
stakeholders to correct any deficiencies that may exist, so 
that broadband is provided throughout our Nation.
    Senator Pryor. Mr. Chairman, I'm out of time. I do have 
several questions for the record. But I do want to just note 
that Mr. O'Rielly came in last week in my office and I had to 
be in Arkansas for a funeral. I'm sorry I was unable to sit 
with you.
    Thank you.
    The Chairman. Thank you, Senator Pryor.
    Before I go to Senator Ayotte, I thought your question was 
really good, because in my experience here you get nominees and 
it's a little bit like, number one, what they're saying has to 
be approved by OMB, and the general public doesn't know that. 
But we know that and they know that. So that's a little bit of 
a pullback maybe.
    Second, it's just fascinating and very polite and very sort 
of winsome that whenever we ask a question you always say 
``Thank you for that question.'' And there's almost never a 
witness, a nominee, that doesn't say that, ``Thank you for that 
question,'' which is smart because it's warm and it's whatever. 
But I also have seen people who have given testimony which is 
fairly specific and then they get nominated and they get 
approved and then they go to their positions, and then they 
become different people.
    I think that's a little bit what Senator Pryor was getting 
at, is that we really do expect to hear what it is you want to 
do in response to our questions, but also that you would 
actually live up to that, as opposed to get through the hearing 
and get nominated, which you're going to get.
    Senator Ayotte.

                STATEMENT OF HON. KELLY AYOTTE, 
                U.S. SENATOR FROM NEW HAMPSHIRE

    Senator Ayotte. Thank you, Mr. Chairman.
    First of all, let me just say I appreciate both of you 
being here and you're both very qualified individuals. 
Obviously, Mr. O'Rielly, you have a strong connection with New 
Hampshire, having worked for Senator Sununu, I really 
appreciate the work that you've done for a Senator that I 
respect, having served the state of New Hampshire.
    Ms. McSweeny, you have the most adorable children who are 
in the back there, and they're doing really well, and I told 
them their mom was doing a great job. So I appreciate it. It's 
great to be with you.
    I wanted to ask--first of all, Mr. O'Rielly, when we met 
one of the issues that has really been of deep concern to me 
and really coming off of what Senator Pryor said is the 
Universal Service Fund, New Hampshire gets ripped off under it. 
There's no other way to put it, where in 2011 New Hampshire 
payers paid in $38 million and only got $14 million in return.
    So people in New Hampshire are only receiving essentially 
37.5 cents on the dollar for the Universal Service Fund. Yet I 
think you know from having worked for a Senator from New 
Hampshire that we have great needs on broadband and that we 
have very rural parts of our state where this would make a very 
big difference to our economic development.
    So what thoughts do you have on how we can reform this fund 
in a way that makes it more equitable and really gets to the 
core purpose of it, which is to help rural areas across 
America?
    Mr. O'Rielly. Senator, thank you for your question. To your 
point, the Commission's reform effort in universal service does 
provide a different approach to those areas like New Hampshire 
where they haven't traditionally received a large amount of 
money from universal service. They have provided additional 
funding in phase one of round two, $300 million, $358 million 
to be more specific, that's going to provide some additional 
funding in New Hampshire.
    I was looking at the maps of New Hampshire off the FCC's 
website and highlighting that Fairpoint has applied for about 
$900,000 to reach broadband to 18 towns in New Hampshire where 
they don't have broadband today. So that is one thing that 
they're trying to do, is expand broadband to areas that don't 
have it today, and that is a good development.
    Senator Ayotte. It is good, but I really think we can go 
much further in terms of how we're using the Universal Service 
Fund dollars. It's just hard for me to justify to my 
constituents the amount they are contributing. It would be one 
thing if New Hampshire didn't have any needs in this area, but 
we know that New Hampshire has great needs in the northern part 
of the state for economic development.
    One other issue that I'm very focused on--I serve also on 
the Armed Services Committee--is the issue of spectrum. I'm 
sure many of my colleagues also raised this issue with you. But 
obviously we have a need for greater spectrum. Much of it is 
being held by our government. How do we come to a resolution 
where we are taking some of that spectrum, while still 
protecting our national security, but making sure that we're 
also driving economic growth by making that spectrum available 
to the private sector?
    Mr. O'Rielly. The Federal Government in my opinion does 
hold too much spectrum, and there is need for an audit to look 
at what spectrum that they're currently using as opposed to 
what they're actually holding, so we can try and determine if 
there's a greater opportunity to migrate spectrum from the 
Federal side to the commercial side.
    We've had success over the many years and there's greater 
need for this as we go forward, since we have what many people 
would agree is a scarcity problem in spectrum, and therefore it 
gets to the larger issue of how much spectrum can we allocate 
for the commercial side of the equation.
    So working with this committee, and in your work on the 
Armed Services Committee, there's an opportunity to provide 
greater spectrum for the commercial side of the equation.
    Senator Ayotte. Good. I think it would be important for the 
government also thinking about economic growth issues that have 
been such an important sector of our economy.
    Ms. McSweeny, I was very privileged recently to have 
Commissioner Ohlhausen up to New Hampshire and I did a round 
table with business leaders in New Hampshire. It was very, very 
helpful. I would encourage you also when you're confirmed to 
think about getting out to states and to hear directly on 
consumer issues and business issues as you take on this 
position.
    But one of the things that was raised to me--and I want to 
use it as an example--is a concern across the board from the 
private sector of wanting more clarity from the FTC, more 
clarity on what the rules of the road are. For example, one 
issue that was raised to me was by auto dealers, that they were 
exempted from Dodd-Frank, but now there's a rule that the FTC 
has been playing in reviewing their financing contracts that 
they're concerned about, that they feel could hurt their 
ability to thrive and grow.
    I just use that as one example. But how do you view your 
role as a Commissioner in terms of providing clarity and 
guidance to business and really a set of rules that they could 
follow so that they know what to do, and at the same time 
obviously protecting consumers?
    Ms. McSweeny. Senator, thank you for the question. I also 
appreciate your point about getting out of Washington and 
visiting states, and I hope to come to New Hampshire as well.
    Senator Ayotte. We'd love to have you. It would be great.
    Ms. McSweeny. Maybe with Commissioner Ohlhausen if we're 
allowed to go together. Have to check the sunshine laws.
    I appreciate your point.
    Senator Ayotte. We'd be happy to have FCC Commissioners, 
too.
    Ms. McSweeny. I appreciate your point and I do understand 
that there is a very active discussion going on around clarity. 
I think the FTC is fundamentally an enforcement agency and I'm 
familiar on the antitrust side particularly with sometimes the 
difficulty associated with having very predictive guidelines 
and guidance and statements in a regime that is fundamentally a 
case by case, common law regime.
    That said, I think it's incumbent on the leadership and the 
enforcers on both sides, the division and at the FTC, to make 
sure that they're clearly articulating their reasoning--they 
can do that in a variety of formats--and to make sure that they 
are applying the law as it is written and following the case 
law as well, which I think is very, very important.
    I commit to doing that and using the authority judiciously 
and treating each case really as an individual case, looking 
closely at the evidence before us.
    Senator Ayotte. Great. Well, thank you very much. I 
appreciate both of you and your commitment to wanting to serve. 
Thanks.
    Ms. McSweeny. Thank you.
    The Chairman. Thank you, Senator.
    Senator Scott.

                 STATEMENT OF HON. TIM SCOTT, 
                U.S. SENATOR FROM SOUTH CAROLINA

    Senator Scott. Thank you, Mr. Chairman.
    Mr. O'Rielly, thank you for your previous comments to 
Senator Blunt's questions and comments as relates to the 
decency standards. We truly appreciate your commitment to pay 
very close attention to that.
    Ms. McSweeny, recently you have stated that protecting 
consumers in rapidly evolving sectors such as health care is 
one of the top challenges facing the FTC, and I believe this is 
a challenge that is about to grow increasingly more difficult 
as many of those challenges of Obamacare become a reality.
    The FTC is already receiving a large volume of complaints 
about Obamacare-related scams. An FTC spokesman recently stated 
that these scams are a top priority for the FTC and that many 
more are expected as the health insurance exchanges get up and 
under way. Consumers' most personal information will now be in 
the hands of Obamacare navigators, whose total training 
requirements have been reduced from 30 hours to 20 hours, 
opening up far more possibilities for major privacy challenges.
    What are your thoughts about how the FTC will face these 
challenges?
    Ms. McSweeny. Senator, I'm looking forward to learning more 
about exactly what the FTC is doing and will certainly spend a 
good deal of time getting up to speed and speaking with my 
fellow Commissioners if I'm confirmed. As I understand it, I 
think it's a very important part of the FTC's consumer 
protection mission to protect consumers from potential fraud 
and scams. It is common, I think, when there are large changes 
under way for fraudsters to try to take advantage of that and 
defraud people, and I believe the FTC as an enforcer has an 
important role in taking on those issues. I've read that the 
FTC is also convening a workshop on that this week as well, and 
I think that's very important and I'd be committed to that.
    Senator Scott. Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator.
    The good Senator Markey, wherever he is. Speak up and 
enlighten us.

               STATEMENT OF HON. EDWARD MARKEY, 
                U.S. SENATOR FROM MASSACHUSETTS

    Senator Markey. Thank you, Mr. Chairman, very much.
    The Chairman. Probe deeply.
    Senator Markey. Thank you.
    Well, I know Ms. McSweeny's father, who's from Medford, 
Massachusetts.
    The Chairman. Hey, wait a second. You can't----
    [Laughter.]
    The Chairman. She's a West Virginian.
    Senator Markey. And her father was a writer for the Medford 
Mercury, a reporter, editor for the Medford Mercury. So she 
comes from--and it's not an oxymoron--and I might apply this to 
Mr. O'Rielly, too, that there is sometimes Irish aristocracy. I 
think we're seeing it here at the table today. So I've known 
their family for a very long time.
    What I'd like to do with you, Ms. McSweeny, first is just 
talk a little about privacy and about the protection of 
children online, especially those 15 and under, so that we can, 
as we move to this--ever deeper into the new era, that we give 
those protections to kids. Back in 1998 I was the author of the 
Child Online Privacy Act, but that was in the BF era, the 
``Before Facebook'' era. So we have to upgrade the rules, the 
regulations, that we have on the books in order to protect 
young kids from being exploited.
    So I would like to hear your views on that issue, and how 
you view--Senator Pryor over in the Senate and I were the 
authors in 2012 of a law to upgrade the laws for the deaf and 
the blind so that they would have access. I'm interested in how 
you see at the FTC the role that can be played to protect 
children against unfair and deceptive practices that try to 
exploit their vulnerability in the marketplace.
    Ms. McSweeny. Senator, thank you for that question and 
thank you for the acknowledgment of our Medford heritage and my 
dad, who is here today.
    I, as was visible a little bit earlier in the hearing, I'm 
a parent of small children who at three and five are already 
iPad and app proficient. So I appreciate not only that the 
space is evolving very rapidly, but that the way our children 
are using it in many wonderful ways is also evolving very, very 
rapidly.
    I think it's important for policymakers and members of 
Congress such as yourself to be able to keep pace with that. 
It's also important for enforcers to keep pace with it as well. 
I strongly support meaningful privacy protections for all 
consumers, but particularly for children, and I'm looking 
forward to working with you on some of the issues related to 
protecting teenagers who fall outside the COPPA rules.
    Senator Markey. Could we move on a little bit as well to 
data brokers. The FTC is beginning to work in that area as 
well. As we know, we've gone from an era of privacy keepers to 
privacy and information reapers, just gathering up all the 
information possible. These data brokers have obviously an 
incredible amount of power over our lives.
    What is your view on that issue?
    Ms. McSweeny. I'm often struck by how little most of us 
know about how information is collected and used on line. I 
think the FTC has an important consumer protection mission as 
an enforcer, but also potentially an education mission that 
could be useful in this space. I have followed with interest 
the vigorous debate over privacy and data legislation and I 
think it's an important one. I think the various multi-
stakeholder processes that have been going on over the last 2 
years have also provided a lot of important information that 
should be accounted for in thinking about the policy. I'm 
looking forward to continuing to help inform it if I'm 
confirmed.
    Senator Markey. Thank you.
    I've known Mr. O'Rielly for a long time as well. He began 
working on the Telecommunications Subcommittee of the House of 
Representatives when I was the Chairman back in 1994. He worked 
for Tom Bliley, who became the Chairman of the Committee, and 
was there for the Telecom Act of 1994, which became the Telecom 
Act of 1996 after the Senate processes. I didn't understand why 
it couldn't get passed through the Senate that year, but it 
waited long enough for Senator Rockefeller to be able to move 
in the E-Rate over here.
    So I was just wanting, if I may, briefly--I don't have much 
time--to talk about the closed captioning legislation that 
Senator Pryor and I were able to pass in 2010 and the need to 
ensure that there is a covering of the captioning of IP-
delivered video clips. A very small percentage of it is 
covered, but yet the deaf and the blind are all basically 
dependent upon the Internet. We all are now.
    The same way ADA made the world wheelchair-accessible, that 
law was intended to make the Internet, the highway of 
information for the future, accessible for the deaf and blind 
as well. Could you talk a little bit about that?
    Mr. O'Rielly. Yes, sir, and thank you for your question. 
I'm committing to you, as I have in a number of instances, to 
enforce and implement the statute that the Committee has 
drafted and enacted. These have provisions in this space. I 
know the statute does have some technical opportunities for 
waivers and we want to look at specifically how it gets to the 
captioning issue in the IP clips. But I do think it's an 
important issue and we should implement the statute as written.
    Senator Markey. Thank you.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Markey.
    For those of you who are new to Senator Markey and Senator 
Rockefeller, we engage in this stuff all the time.
    The one and only Senator McCaskill. And everybody batten 
down the hatches.
    Senator Markey. I'm sitting between the Boston Red Sox and 
the Atlanta Braves, and I just want to point out that we also 
are in first place, Mr. Chairman, just in case you were 
wondering about the Cardinals, how we were doing.
    The Chairman. I had actually written a note, which I 
decided not to send because it would have been undistinguished 
on my part, to thank you for losing quite a number of games at 
the same time as we were----
    Senator McCaskill. We like to make it exciting for our 
fans.
    The Chairman. OK, OK.
    Senator Markey. Mr. Chairman, a parliamentary inquiry.
    The Chairman. Please.
    Senator Markey. Was there any mention that the Red Sox have 
the best record in baseball at this point?
    [Laughter.]
    Senator Markey. I just wanted to make sure that's on the 
record.
    The Chairman. No.

              STATEMENT OF HON. CLAIRE McCASKILL, 
                   U.S. SENATOR FROM MISSOURI

    Senator McCaskill. We'll speak again in October.
    I want my 50 seconds back, by the way. I need them.
    Mr. O'Rielly, you probably are aware that I was solicited 
to get a free phone in my condominium not far from the Capitol, 
which began my journey at looking at one of the most fraud-
infested programs ever conceived in the Federal Government, and 
that's the Lifeline Phone program.
    Now, keep in mind that the goal here is wonderful and I 
support it. The goal is laudable and I support it. But this 
program was so flawed from its inception in the Bush 
Administration in terms of oversight. I want to ask you a 
couple of questions about that oversight.
    It has come to my attention recently that once again we 
have discovered fraudulent applications being submitted and the 
two companies that have been cited by what I believe to be 
accurate reporting have been the only two companies ever 
penalized in the Lifeline program. Out of a multi-billion 
dollar program, they were fined a whopping half a million, 
$500,000 apiece.
    Now we find this information out, where the reporting 
indicates that supervisors were telling people: It's OK if you 
submit fraudulent applications; the more the better.
    My first question to you is: If your investigation reveals 
that reporting to be accurate, would you be advocating for 
barring those companies from further participation in the 
Lifeline program?
    Mr. O'Rielly. Senator, thank you for your question. I do 
believe the Commission has done some good work in trying to 
improve the Lifeline program. A number of items are still to be 
implemented, but if--and I am unaware of the circumstances you 
speak of, but if that's the case that certainly should be on 
the table for the Commission.
    It is the obligation of the Commission to enforce its rules 
and the statute, and I would fully want that to happen in this 
case.
    Senator McCaskill. As an auditor, one of the things that 
really offends me about this is that the FCC prohibits 
providers from maintaining records of eligibility, under the 
auspices of privacy. Now let me see if I get this straight. 
You're getting a free phone, but we can't keep your records in 
order to audit later to make sure that you are eligible.
    Are you willing to make a commitment at this hearing that 
you would be advocating for a change in that rule that we could 
keep records for purposes of auditing eligibility of the people 
who are participating in the program?
    Mr. O'Rielly. I believe that, notwithstanding the good work 
of the Commission, problems still exist in the Lifeline 
program, even though we're going to implement some more 
changes. I suggest to you that a top to bottom review of the 
program is in order, and if that's the helpful solution to that 
issue I would want to look at that very closely.
    Senator McCaskill. Another problem that is going to never 
ever--we're never going to get the fraud out as long as you're 
allowing these companies to incentivize people that they make 
more money the more people they sign up. It reminds me of when 
we have found fraud in getting signatures for a petition or for 
signing up people to vote. When you pay people per person, 
you're creating an incentive for them to manufacture 
applications and to duplicate.
    They found one person who was selling for two companies, so 
when he signed up one for one company he signed them up for the 
other company, because we all know the database isn't there 
that they can even find duplicates at this point.
    Would you be willing to look at a rule that would prohibit 
companies from incentivizing salespeople based on how many 
people they sign up for the program?
    Mr. O'Rielly. Yes.
    Senator McCaskill. Thank you.
    Let me also ask you about the shot clock on the approval of 
the merger for Sprint. Traditionally, the FCC has used a 180-
day shot clock as a guideline. That merger has been pending now 
for far beyond that 180 days. Is that shot clock deadline 
effective and should it be continued? And what can you do, what 
would you do, to ensure timely--because sometimes not getting 
an answer is worse than getting an answer you don't want. The 
idea that things can linger, especially when there are stakes 
as high as this for a company, is really problematic. If you 
would address that I'd appreciate it.
    Mr. O'Rielly. Senator, I don't want to speak about the 
specific Sprint situation, but I do agree with you and I would 
pledge to you my promise to try to comply as best as possible 
with, whether it's 180 days or maybe we should look at that in 
terms of shortening that. But I would want to live up to that 
agreement that we try to complete mergers as soon as possible, 
because one way or the other --as you say, sometimes getting an 
answer is more helpful than dragging the situation out.
    Senator McCaskill. Thank you.
    Just because I don't want to leave Ms. McSweeny out: I now 
chair the Subcommittee that Senator Pryor previously chaired, 
with jurisdiction over the FTC. You are probably aware of some 
of the hearings we've done on our need to get at robocalls more 
effectively with advancing technology. I also have concerns 
about online privacy, although I come at this from the 
perspective that I don't think the American public realizes 
that they're getting content for free because the monetization 
of the Internet occurred through behavioral marketing, and if 
we're going to turn that back we've got to make sure that the 
American people understand that there's going to be some costs 
associated with that in all likelihood.
    But I really wanted to just mention to you deceptive 
advertising, which I think is an area that the FTC frankly will 
never have enough resources to go at. But we're going to have a 
hearing and I would look forward to your cooperation on 
deceptive advertising. Particularly for those of us that are 
north of 50 and who continue to struggle with staying fit and 
healthy, nothing is more irritating to me than green coffee 
beans.
    The notion that there are people that are being told that 
green coffee beans can not only make them thin, but also make 
them rich, is like fingernails on a blackboard. It is just one 
example of so many examples of fraudulent advertising that are 
out there. I'd like you to briefly address that, if you would, 
Ms. McSweeny.
    Ms. McSweeny. Thank you, Senator. I'm looking forward to 
working with you on this issue, and I'm also looking forward 
to, if I'm confirmed, finding out more about it and working 
with the FTC in ensuring that we're doing as much as possible 
to go after deceptive conduct in the advertising space as well. 
I think it's a very important part of the FTC mission.
    Senator McCaskill. Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator McCaskill.
    I'm just going to--Senator, if you've got more questions, 
please.
    This has been a very awkward, but yet fruitful, afternoon 
because we never could get a quorum. We have to have our budget 
in by the 20th according to the Rules Committee, so that we 
will be having an off-the-floor markup tomorrow. For the three 
of us here, I hope we all remember that and the staff gets the 
word out to the others, because we have to do that.
    All members should have questions in by this Friday. 
Presumably there will be a number of members who do have 
questions.
    I want to just end my part and, Senator Markey, you can go 
on if you want to, really. When you, Mr. O'Rielly, talked about 
Internet protocol transition, I got worried because you sort of 
made some kind of a relationship between the fact that 
technology is changing so quickly together with the fact that 
therefore it isn't really wise to try to regulate what needs to 
be regulated because tomorrow it will be different.
    I have a very, very different view of that. Having watched 
major changes in industries that move very rapidly, under the 
radar, who used to get away with all kinds of things--and I'd 
say the health insurance industry would be one of the top. They 
were really good at moving things quickly, and we just stopped 
them cold.
    My sister, who doesn't need it--Senator Markey, you'll 
enjoy this--got a $200 rebate in the mail. And she called me up 
and said: What is this? I said: Your insurance company cheated 
you, overcharged you, and because of the medical loss ratio 
bill in the Affordable Care Act, sometimes known as Obamacare, 
but not by me, she got $200. Billions of dollars gone out to do 
that.
    People will take advantage of any given moment. The faster 
the change, the faster they'll take advantage of it so as to be 
able to count on the rapidity to help them take advantage of 
others.
    So I just want to ask you. How does the FCC make sure that 
the values in the Telecommunications Act are in effect at all 
times, not just when there are long periods of waiting, but at 
all times? I think the FCC has to be sure that the IP 
transition period does not leave rural--and they'll do it--and 
underserved areas at risk. They will do that, no matter how 
quickly the technology changes. So I'd like to have you respond 
to that.
    Mr. O'Rielly. Yes. Yes, Senator. Thank you for your 
question. I hope--I think I pointed out two parts to my comment 
earlier. One is that the statute and the regulations need to be 
flexible and with a light hand as best as possible. So you have 
a situation where----
    The Chairman. Yes, but those are code words.
    Mr. O'Rielly.--the 1996 Act----
    The Chairman. ``Flexible'' and ``light-handed'' to me are 
code words, code words for----
    Mr. O'Rielly. Well, flexible in the 1996 Act that you were 
very involved in, the provisions apply--have a long life and 
apply to a number of different technologies. It's not just an 
attempt to be technology-neutral so they can live through the 
next decades as we go forward. So it's how do those 
provisions--how are they drafted, how are they structured, to 
address the situations, rather than being specific in one 
technology area.
    The Chairman. Well, I will take that as your answer, then.
    Mr. O'Rielly. And I would say, the second part, I certainly 
understand your point regarding rural America and I will pledge 
to you, as I have to other members, that there are a number of 
issues before the Commission, including universal service 
reform and the IP transition, if the Commission moves forward 
on trials that will look at these specific issues, it is 
certainly the goal and the requirements--it's not the goal. It 
is the requirements of the statute to ensure that all Americans 
have coverage.
    The Chairman. This is the beauty of it. Verizon--every day 
that you watch television, you see a Verizon ad and you see a 
large map of the United States with most of it colored red, 
i.e., covered. So every day that I see that advertisement I see 
that West Virginia somehow ends up being white, i.e., 
uncovered. That doesn't mean it's entirely uncovered, but it's 
a clear representation of when people don't want to spend money 
on something which is not going to make a strong return, versus 
the Telecommunications Act, which says you've got to be 
everywhere all the time, no excuses.
    Mr. O'Rielly. I understand the point you're making.
    The Chairman. Senator Markey.
    Senator Markey. Thank you, Mr. Chairman, very much.
    Mr. O'Rielly, as you know, our phone network is rapidly 
transitioning from traditional technology to Internet protocol, 
and that's just moving at the speed of light. People look back 
to the 1996 Telecommunications Act and they wonder is its 
relevance. But of course what we know is that that reason that 
we're having this revolution is that the 1996 Act has worked so 
well, that it has created this incredible ongoing, recurring 
revolution, and we move from not one home having broadband in 
1996, when President Clinton signed the bill at the Library of 
Congress, to having it now be in the minds of every 10-year-old 
a constitutional right, broadband at inexpensive rates at home.
    So that's a pretty rapid revolution, and it was all 
anticipated. That is, we were going to move from narrowband to 
broadband, we were going to move from analog to digital. We 
were going to unleash this incredible revolution.
    So I guess what I would like to know from you, because the 
act's principles, that is the principles that dealt with 
competition, with consumer protection, with economic growth, 
were all basically built into that law, and it was meant to 
basically unleash, which it did, $1 trillion worth of private 
sector investment. $1 trillion. Amazing. That's the largest 
kind of economic piece of legislation that's gone through 
Congress in a generation, huge. And it led to probably the 
largest amount of revenues going into the balancing of the 
budget in the last nineties. Maybe 30 percent of the revenues 
came in because of the 1996 Telecom Act and moving over the 200 
megahertz of spectrum a couple of years before that.
    So I guess my question to you is that, the intent was that 
the technologies were technology-neutral, that the Act was 
technology-neutral. So I'd like to hear your comments, if you 
would, on the values of consumer protection, competition, 
reliability, universal service, because those are the core 
principles. The technology itself does not have values. We 
imbue the technology with our values, and those values are 
central to ensuring that we do have competition, we do have 
universal service, we do have consumers who are protected.
    So could you give us your sense of, your view of those 
principles?
    Mr. O'Rielly. Yes, sir. Thank you for your question. As I 
mentioned to the Chairman in terms of the IP transition, the 
Commission is looking at potentially setting up a number of 
trials to examine a number of the issues you just highlighted, 
including interconnection, consumer protection, disability, to 
figure out what are the public policy issues going forward as 
relates to the IP transition, so nobody is left out of the 
equation going forward.
    In terms of the specific principles that you highlighted, 
I'm committed to those. I think they're ingrained in the 
statute itself--competition, universal service, and a number of 
the other items that you spoke of, consumer protection. I think 
they are ingrained in the statute and an obligation of the 
Commission.
    Senator Markey. Ultimately the purpose of the Act was to 
create Darwinian paranoia-inducing competition in the 
marketplace, that would threaten the incumbents, force them to 
move. Everyone was analog that deep into the technology 
revolution. So all of a sudden, within 4 years we had a dot-com 
boom. Everyone figured out digital.
    So my goal here is just to make sure that as you move to 
the FCC that you bring these values with you. These are key. 
This is really what it's all about. It's not just about a piece 
of technology. It's about who we are as Americans and what we 
imbue the technologies with. I think your background at the 
inception of the legislation, knowing what was in it and giving 
me the comments that you did right now, reflects your 
understanding of how central that is to making sure that this 
law continues to work into the future. So I thank you for that.
    Thank you, Mr. Chairman.
    The Chairman. Senator Markey, let me just ask a question 
and then we'll end this. In a way, what you're saying is that 
if I declare myself a free market solution person, then I'm 
saying that everything will inevitably get worked out by the 
free market. You and I both reject that and I think that's a 
major, major factor in and on the FCC. Do they understand, will 
they understand, and will they come forth with what will, in 
fact, fulfil the Telecommunications Act requirements--universal 
service, universal coverage, everything you talked about.
    Senator Markey. If the gentleman would yield, yes, that's 
what I'm saying, that the technology is neither good nor bad. 
There is a Dickensian quality to that technology. It can enable 
and enable; it can degrade and debase simultaneously. The 
determination of what that technology does is made by the 
people who are here and the people who are at the FCC and the 
Federal Trade Commission as well. So the privacy of children, 
the universal access to the technology, its reliability, 
consumer protection so that fraud is not perpetrated, all of 
that has to be determined by us, in conjunction with the 
regulatory agencies, to make sure that while we derive the 
benefits of the technology that we're also guaranteeing that 
people are not going to be exploited by it.
    I think it's that balance. While we revere the marketplace, 
we also understand its limitations. So to a very large extent, 
we did not get this revolution until we broke down the 
monopolies, which we had to do because they weren't moving fast 
enough. But even in breaking down the monopolies, you don't get 
everything, because the values have to attach to it, and only 
through legislation and regulation can those values be 
instilled into the technology.
    So I agree with you, Mr. Chairman.
    The Chairman. So, Mr. O'Rielly, you have some sense of at 
least how two members of this committee will be watching.
    Mr. O'Rielly. Yes, sir.
    The Chairman. Look. You've all been ten times more than 
persuasive. I have to ask a question because two of the 
absolutely cutest children I've ever seen in my entire life, 
neither of them being from the table taller than this 
(indicating), ran across the back and out. Were they part of 
either of your families?
    Ms. McSweeny. Those may have been my children. I'm not sure 
where they are.
    [Laughter.]
    Ms. McSweeny. If there is a rather stunning blonde woman 
following them, that was my mother.
    The Chairman. OK, all right. They were incredible.
    Ms. McSweeny. Thank you, sir.
    The Chairman. I'm into grandchildren, OK.
    Senator Markey. It was the Medford in them.
    [Laughter.]
    Ms. McSweeny. It's definitely the Irish in them, and the 
West Virginian.
    The Chairman. We both have honorable claim.
    Again, questions for the record by this Friday. Staff of 
those Senators who are not here should know that. I hope the 
questions will be back the following Wednesday--that's not 
unreasonable--and that we will have a markup on the floor 
tomorrow, both the budget and the nominees, not all of whom 
have yet been mentioned, but all of whom are deemed done.
    Thank you and this hearing is adjourned.
    [Whereupon, at 4:14 p.m., the hearing was adjourned.]
                            A P P E N D I X

   Response to Written Questions Submitted by Hon. Maria Cantwell to 
                            Terrell McSweeny
Patent Assertion Entities
    Question 1. Ms. McSweeny, when you visited with me we spent some 
time talking about the intersection of competition, innovation, and 
patent policy and your views on the FTC's role. We talked about the FTC 
plans to initiate a study under Section 6(b) of the FTC Act to study 
the role of patent assertion entities in today's economy.
    This is an important and timely project. Unsavory PAEs have 
targeted unsuspecting end users and even threatened lawsuits on the 
basis of non-existent patents. On the other hand, there is a wealth of 
evidence showing that PAEs can also foster innovation by creating a 
vibrant market for patents, which enables innovative firms to access 
the technology they need to bring new products to market.
    What are the principles that you believe should guide the FTC as it 
undertakes this investigation so that it strikes an appropriate 
balance?
    Answer. I am not privy to deliberations within the Commission about 
a potential Section 6(b) study focused on patent assertion entities 
(PAEs). However, if I am confirmed, I am looking forward to speaking 
with all of the Commissioners and the experts at the FTC so that I can 
understand whether a study would be an appropriate use of resources. I 
am aware that many stakeholders have raised questions about whether 
some PAE conduct may violate antitrust laws. Last year the Department 
of Justice Antitrust Division and the FTC held a joint workshop with 
industry participants and experts to explore the impact PAEs are having 
on competition and innovation. The discussion at the workshop--and in 
the comments to both agencies following it--centered on the benefits of 
PAE activity (such as monetization of intellectual property) as well as 
the potential harms from PAE activity (such as PAE conduct taxing 
innovation). It is possible that further study would assist enforcers 
and policymakers in evaluating the impact of PAE activities on 
consumers, innovation and competition.
Anticompetitive Conduct in Online Technology Markets
    Question 2. Ms. McSweeny, while you have been part of the 
leadership of the Justice Department's Antitrust Division, the Division 
has brought important cases challenging anticompetitive conduct in 
online technology markets. The FTC meanwhile, has been far more 
reticent to challenge dominant firm conduct in online markets.
    How will your experience at the Department of Justice inform your 
approach to evaluating anticompetitive conduct in these important 
markets at the heart of our economy?
    Answer. Online markets are fast-moving and highly innovative. 
Antitrust enforcers must carefully consider these market dynamics when 
confronted by potentially anticompetitive conduct.
    Fortunately, one of the great strengths of U.S. antitrust law is 
that it is a common law regime which is sufficiently flexible to allow 
enforcers and courts to approach the central issue of protecting 
competition in different factual situations over time. Innovations are 
constantly transforming the economy--often to the benefit of 
consumers--so it is important for enforcers at both the Antitrust 
Division and the FTC to consider each case individually and to 
thoroughly evaluate the evidence before them in order to assess whether 
conduct ultimately would prove harmful to competition and consumers.
Online Privacy
    Question 3. Ms. McSweeny, as you know, the FTC serves in a key role 
in helping consumers understand online data collection practices and 
protecting privacy. Many observers believe that consumers have little 
understanding of online data collection practice and privacy policies 
that are often vague to the point of being meaningless.
    As a Commissioner, how will you help to ensure that Americans 
obtain the privacy protections they are entitled to?
    Answer. I believe that the FTC's enforcement mission is crucial to 
ensuring that consumers have the tools to protect their personal 
information and the information necessary to make informed choices 
about how personal data is collected and used. The FTC also uses 
consumer education to raise awareness about privacy issues and ensure 
that consumers can make informed choices within the marketplace. If I 
am confirmed, I will work with the other Commissioners to enforce 
existing laws that protect the privacy of consumers and to provide 
information to the public regarding these practices.

    Question 3a. Do you believe that a failure to provide a meaningful 
explanation of what data is being gathered and how it is being used 
could be an unfair or deceptive act or practice?
    Answer. I believe that the determination of whether such a failure 
is unfair or deceptive must be made on a case-by-case basis based on 
the evidence.

    Question 3b.Do you believe that competition among online service 
provides could be one way to help promote online privacy and 
responsible data collection practices?
    Answer. Yes. I believe competition can lead some companies to 
provide greater privacy protections than others to gain an advantage in 
the marketplace. Competition can also yield valuable innovations that 
provide consumers with additional options to protect their privacy and 
greater transparency around data collection practices.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Amy Klobuchar to 
                            Terrell McSweeny
    Question 1. Ms. McSweeny--Earlier this year, the Federal Trade 
Commission (FTC) released its annual report on pay-for-delay 
agreements. It showed that in FY 2012 there were 140 settlements 
between brand name and generic firms and 40 of them involved pay-for-
delay. Senator Grassley and I have introduced bipartisan legislation 
that would make pay-for-delay agreements presumptively illegal under 
the antitrust laws.
    The FTC hasn't brought a new pay-for-delay challenge since 2009. 
Now that the Supreme Court has handed down its ruling in Actavis, which 
said these agreements can indeed be scrutinized under the antitrust 
laws, what do you think the Commission should do with those 40 pay-for-
delay agreements? Should some of them be challenged?
    Answer. I understand that stopping the use of pay-for-delay 
agreements has had bipartisan support of the FTC for many years. I 
believe that it should continue to be a priority. Economic analysis 
indicates that reverse payment settlements cost consumers billions a 
year in expenses and increased costs to Medicare and Medicaid. The 
Supreme Court's decision in Actavis provides a helpful path forward to 
challenging anticompetitive settlements that are likely to cause 
consumer harm. In light of the Actavis decision, I believe it is 
appropriate for the FTC to review settlements filed pursuant to the 
Medicare Modernization Act and to investigate agreements that may 
violate the law. If I am confirmed, I will work with my colleagues to 
determine how to best use the FTC's resources to continue to protect 
consumers from anticompetitive agreements.

    Question 1a. Do you support our bill? In what ways do you think the 
FTC would benefit from this change in the law?
    Answer. The Commission should continue to make stopping 
anticompetitive pay-for-delay agreements a priority. The Supreme 
Court's ruling in Actavis is an important victory for consumers and 
competition. It confirms that traditional antitrust principles should 
apply in evaluating reverse payment agreements. Federal courts must now 
evaluate antitrust challenges to reverse payment settlements under the 
rule of reason standard. Your legislation would create a presumption 
that reverse payment agreements are anticompetitive unless the parties 
to them can prove they are not. It is likely that imposing a brighter 
line test would do more to deter future reverse payment settlements and 
assist the FTC in its effort to stop the use of these types of 
settlements. If I am confirmed, I look forward to studying your 
legislation and working with you and my colleagues at the Commission to 
protect consumers from anticompetitive practices that limit access to 
lower cost generic drugs.

    Question 2. Ms. McSweeny--As the population ages, more bad actors 
are emerging to prey on older Americans through financial scams. These 
schemes include everything from fraudulent investment plans and charity 
scams to phony sweepstakes and predatory home lenders. And the 
statistics are staggering, roughly 1 in 5 seniors have already been 
victimized by fraud or financial abuse. According to a study by 
MetLife, annual losses from financial fraud targeting seniors reached 
$2.9 billion in 2010, up 12 percent from 2008. That's why I introduced 
legislation--the Senior Fraud Prevention Act with Senator Susan Collins 
(R-ME), the Ranking Member of the Senate Committee on Aging, to give 
seniors and the FTC more tools to prevent scams before they happen. I 
hope you will take a look at our bill and work with me on these issues.
    Will you commit to improving the resources at the FTC to better 
protect and educate seniors and to working with other law enforcement 
agencies to bring these criminals to justice?
    Answer. Yes. The Commission should continue to place a priority on 
cracking down on fraudsters who target groups like seniors. Scams aimed 
at seniors are all too frequent. In addition to pursuing active 
enforcement against these schemes, it is important that the Commission 
also work closely with state attorneys general and other law 
enforcement agencies to combat them. In addition, the Commission should 
strive to provide important information about scams to seniors and 
their caregivers as quickly as possible. To ensure that word gets out 
efficiently and effectively it may be useful for the Commission to 
deepen its partnerships with other agencies that serve seniors. If I am 
confirmed, I will review the work the Commission is currently doing to 
protect seniors and work with the other Commissioners to ensure that 
the FTC's resources directed at senior fraud prevention are being used 
as effectively as possible.
                                 ______
                                 
     Response to Written Questions Submitted by Hon. John Thune to 
                            Terrell McSweeny
Big Data Privacy Enforcement
    Question 1. As the FTC continues to engage on privacy issues, 
Chairman Ramirez and commission staff have both identified ``big data'' 
as an enforcement priority. In a recent speech to the Technology Policy 
Institute, Chairman Ramirez stated her view that the Commission has the 
tools it needs to address privacy concerns. Specifically, under the FTC 
Act, the Commission is able to enforce against both deceptive claims 
and unfair commercial practices. Recent enforcement actions brought 
under FTC's deceptive practices authority feature fact patterns where 
firms have violated their own privacy policies or other commitments to 
consumers to keep their data confidential. Defendants in such cases are 
aware both of the commitments they have made, and of their 
responsibility to honor those commitments. However, cases brought under 
the Commission's unfairness authority appear less clear cut in terms of 
what is expected of marketplace actors. These actions, the vast 
majority of which have resulted in consent order agreements, have 
produced little in the way of analysis. In your view, what would be the 
appropriate benchmarks for determining whether an activity regarding 
data security was unfair?
    Answer. I believe the appropriate benchmarks for determining 
whether conduct involving personal data is unfair are those found in 
the Commission's unfairness statement and codified in the 1990s by 
Congress. They are: whether the act or practice causes or is likely to 
cause substantial injury to consumers that is not reasonably avoidable 
by consumers and not outweighed by countervailing benefits to consumers 
or competition. Enforcement decisions using this authority should be 
made based on evidence that these three elements are met.

    Question 2. Recently, Chairwoman Ramirez spoke about her vision on 
regulating Internet companies and issued a warning to companies that 
create products and services using data. She said: ``Thou shall not 
collect and hold onto personal information unnecessary to an identified 
purpose. Keeping data on the off chance that it might prove useful is 
not consistent with privacy best practices.'' However, both public 
institutions and private companies have been able to re-analyze 
previously collected data to realize important benefits for Americans--
for example, Internet companies learned how to filter e-mail spam after 
realizing that e-mails marked as spam possessed distinctive patterns. 
And public institutions such as state departments of health have been 
able to better prioritize services using previously collected data. 
Retaining data while also respecting a user's privacy often makes 
government or industry more effective and efficient. As a Commissioner, 
would you agree with the Chairwoman's approach? Or do you feel such a 
blanket approach could act as a barrier to innovative products and 
services for consumers?
    Answer. If I am confirmed, I will discuss the question of how to 
approach unanticipated uses of data with all of the Commissioners. 
Without additional context, I do not believe it is appropriate for me 
to opine on the Chairwoman's views on this issue. The FTC is primarily 
an enforcement agency. As such, the Commission should make enforcement 
decisions based on the standards of the FTC Act. In all matters, I 
believe each Commissioner should carefully review the evidence before 
determining whether a violation has occurred.

    Question 2a. Would you commit to making sure that the FTC instead 
appropriately focuses its law enforcement efforts on the uses of data 
that cause real harms for consumers?
    Answer. I believe it is appropriate for the FTC to prioritize 
enforcement efforts around conduct that is either clearly harmful to 
consumers or deceptive or both. I believe that enforcers must carefully 
evaluate the evidence in each case. The appropriate benchmarks for 
determining whether a practice is deceptive are: that it is likely to 
mislead consumers acting reasonably under the circumstances and likely 
to affect consumers' decisions regarding the product. In evaluating 
whether conduct involving personal data is unfair the Commission should 
adhere to Commission's unfairness statement--which was also codified in 
the 1990s by Congress. The standard for unfairness is whether the act 
or practice causes or is likely to cause substantial injury to 
consumers that is not reasonably avoidable by consumers and not 
outweighed by countervailing benefits to consumers or competition. I 
believe that these rigorous legal standards must be met in all 
enforcement actions.
Identity Theft
    Question 3. Earlier this summer, the FTC released its Draft 
Strategic Plan for 2014-2018, recommending that the Commission ``target 
[its] law enforcement efforts on violations that create the greatest 
amount of consumer harm,'' and that its performance should be measured 
in part by the ``percentage of the FTC's consumer protection law 
enforcement actions that targeted the subject of consumer complaints to 
the FTC.'' However, this has not been the case at the Commission in the 
past few years. Records indicate that the FTC has held four times as 
many round tables on the issue of privacy as the Commission has on data 
breach and identity theft, despite the fact that identity theft has 
been the #1 complaint filed with the FTC by taxpayers.
    Would you work to refocus the agency's resources toward responding 
to this serious crime of identity theft that affects so many Americans, 
particularly the elderly and members of our military?
    Answer. If I am confirmed, I will carefully review how FTC 
resources are currently directed toward identity theft and deceptive or 
fraudulent schemes that target groups like seniors, children, veterans, 
and the financially distressed. I agree that the FTC plays an important 
role in combating identify theft. The Commission should continue to 
work closely with other law enforcement partners, such as the 
Department of Justice and state attorneys general, to crack down on 
identity theft crimes and to assist victims in their recovery from it. 
I believe it is also important for the FTC to continue to play the 
important function of providing valuable education materials and 
resources which raise awareness regarding consumers' rights and provide 
guidance for those assisting victims of identity theft.
Fraudulent Schemes
    Question 4. According to the FTC's most recent survey of fraud in 
the U.S., during 2011, an estimated 10.8 percent of U.S. adults--25.6 
million people--were victims of one or more of the frauds surveyed. The 
three most common types of fraud, as measured by the number of 
incidents, were fraudulent weight-loss products (7.6 million 
incidents), fraudulent prize promotions (2.9 million incidents), and 
fraudulent work-at-home programs (2.8 million incidents). In your view, 
what more can the Commission do to prevent these types of scams? Do you 
believe the FTC's enforcement actions should mirror the most prevalent 
types of scams?
    Answer. I understand that, particularly in the current budget 
environment, the FTC must prioritize the use of its resources. If I am 
confirmed, I look forward to conferring with the other Commissioners 
and to learning more about how these decisions are made. In setting 
areas of priority, I believe that the FTC should take into 
consideration the prevalence of types of scams, the amount of consumer 
harm from them, and also the emergence of new types of scams that may 
warrant a prompt and clear response. The high volume of complaints 
about these types of frauds also suggests how important it is for the 
FTC to partner with other law enforcement agencies, including the 
Department of Justice and state attorneys general, to combat these 
schemes.
Empirical Evidence
    Question 5. Do you believe that the Commission currently places 
enough emphasis on empirical evidence and economic theory in deciding 
whether to bring an enforcement action?
    Answer. I am not privy to information that would allow me to 
adequately assess the FTC's current level of emphasis on empirical 
evidence and economic theory in making enforcement decisions. However, 
I believe empirical evidence and economic theory play a vital role in 
assessing harm to competition and consumers as well as potential 
efficiencies. In my experience, antitrust enforcement is most effective 
when it is analytically grounded, factually supported and consumer 
oriented.
When Should the FTC Bring a Case?
    Question 6. The Commission's standard under the Federal Trade 
Commission Act for filing an initial complaint against a firm states 
that the Commission must have ``reason to believe that a violation of 
the law has occurred'' before it may file an initial complaint and may 
only do so if it would serve the public interest. Because neither the 
FTC Act nor the FTC's rules define the ``reason to believe'' standard, 
the question of whether a complaint is appropriate is up to the 
discretion of each commissioner. How would you decide whether this 
requirement has been satisfied?
    Answer. Each Commissioner should consider the nature and strength 
of the available evidence in making a decision about whether the 
standard has been met. While certainty is not required, we must have 
reason to believe a violation has occurred.

    Question 6a. What threshold must be met before the agency may 
proceed? Is it a low standard that litigation ``may'' lead to a finding 
of liability? Or should it be stronger?
    Answer. If I am confirmed, I will carefully consult and follow the 
relevant case law describing when the reason to believe threshold has 
been met. I have not currently formed an opinion on whether the 
standard is too low.

    Question 6b. In your view, is a more clearly-articulated standard 
needed?
    Answer. I do not presently have a view on this question. If I am 
confirmed, I will review the relevant case law and confer with the 
commissioners regarding this question.
Section 5
    Question 7. As you know, Section 5 of the FTC Act provides the 
primary source of authority for the FTC's antitrust and consumer 
protection missions. The language of this statute is broad, making 
unlawful ``unfair methods of competition'' and ``unfair or deceptive 
acts or practices.'' Chairman Liebowitz, whose seat you have been 
nominated to fill, openly argued that the Commission's powers under 
Section 5 are expansive and reach a ``broader array of behavior than 
the antitrust laws.'' In your view, what are the limits to the FTC's 
powers under Section 5?
    Answer. I believe the central tenets that should guide enforcement 
decisions are harm to competition and consumers. The Supreme Court has 
confirmed that Congress intended Section 5 to reach beyond the 
antitrust laws. Although the precise boundaries have never been 
squarely articulated, there is generally agreement that Section 5 
covers some conduct which is outside the scope of the Sherman and 
Clayton acts--such as invitations to collude or exchange of 
competitively sensitive information. Such practices must be 
anticompetitive in a meaningful sense. The relevant legal standards 
require antitrust enforcers to have factual support for a credible 
theory of economic harm to consumers in order to bring a case. I 
believe the FTC should only use its stand alone Section 5 authority 
judiciously and after thoroughly considering the evidence, and 
determining that the practices involved would prove harmful to 
competition and consumers.

    Question 7a. When would it be proper for the agency to file a 
complaint under its Section 5 authority?
    Answer. As noted above, the relevant legal standards require 
antitrust enforcers to have factual support for a credible theory of 
economic harm to consumers in order to bring a case. I believe the FTC 
should only use its stand alone Section 5 authority after thoroughly 
considering the evidence that the practices involved would prove 
harmful to competition and consumers.

    Question 7b. What types of FTC actions would constitute an 
overreach of the agency's authority in your view?
    Answer. The FTC should hew to the relevant legal standards in 
making any enforcement decision. I would consider actions that are not 
supported by evidence of actual or probable harm to competition and 
consumers an overreach of the agency's Section 5 unfair methods of 
competition authority.
Antitrust Enforcement in the Tech Sector
    Question 8. It is clear that technology markets pose unique 
challenges for antitrust regulators. Unlike other sectors of the 
economy that predominated in the prior centuries when our antitrust 
laws were written, the tech sector continues to spawn new business 
models that do not necessarily fit cleanly into the existing regulatory 
framework. Commissioner Wright has written, for instance, that 
empirical evaluation of business practices in high tech-markets is 
complex, in part because these cases involve conduct that can 
theoretically prove either pro-competitive or anti-competitive. Are 
antitrust regulators able to benefit consumers with a focus on 
traditional antitrust metrics (such as price and output) or is it time 
for a new approach?
    Answer. Innovation, especially at the fast pace it occurs in the 
technology sector, can pose challenges for antitrust enforcers who must 
fully understand market dynamics when assessing whether mergers or firm 
conduct are anticompetitive. However, this is not a new issue in 
antitrust law. Innovations are constantly transforming the economy. 
From the automobile, to radio, to telephone, to television, to 
computers, to mobile devices, technological advances have changed how 
people communicate, travel and conduct business. One of the great 
strengths of the antitrust laws is their flexibility--which allows 
enforcers and the courts to approach the central issue of competition 
in different factual situations over time. Antitrust case law 
recognizes that competition is vital to innovation and requires 
enforcers and courts to apply a balanced, fact-based approach to law 
enforcement. I believe the common law approach of the United States 
antitrust laws is a strength of our system.

    Question 8a. Are there other areas of antitrust jurisprudence that 
you believe need to be more fully developed?
    Answer. In the past year the Supreme Court has clarified two 
important areas of antitrust law. In Phoebe Putney Health Services, 
Inc., a unanimous Supreme Court clarified that for the state action 
doctrine to apply the anticompetitive effect must be the ``foreseeable 
result'' of what is authorized by the state. In Actavis, the Supreme 
Court confirmed that traditional antitrust principles should apply in 
challenges to reverse-payment agreements. Both cases provide important 
clarifications of the scope of judicially created exemptions from 
competition law. I believe it will be important to watch carefully how 
these doctrines evolve in lower courts.
Foreign Acquisition of American Companies
    Question 9. Across a number of sectors we have seen instances where 
foreign companies--sometimes state-owned--seek to acquire American 
companies. Could you share your views about the past or present 
acquisition of American companies by foreign, state-owned companies?
    Answer. In antitrust law the ultimate ownership of the acquiring 
company only matters to the extent that it raises competition issues--
for example, horizontal concerns may be present if the entity owns 
another competitor in the industry. In evaluating the impact of a 
transaction on competition, antitrust enforcers do not consider whether 
the buyer is domestic or foreign. I believe that is appropriate in 
order to promote an open global marketplace and that exporting this 
framework, particularly to countries that are developing antitrust 
laws, is important.

    Question 9a. Do you see any negative implications of these types of 
mergers and acquisitions on consumers or various elements of American 
industry?
    Answer. Yes, such acquisitions may raise many issues aside from 
their potential impacts on competition. For example, they may be 
subject to CFIUS review for potential national security issues and 
other issues that go beyond antitrust. However, it is important to have 
an open market for foreign investment--so each transaction should be 
evaluated on a case by case basis by the relevant enforcement agencies.
                                 ______
                                 
  Response to Written Questions Submitted by Hon. Roger F. Wicker to 
                            Terrell McSweeny
    Question 1. You testified that, during your tenure ``here in the 
Senate, at the White House, and at the Department of Justice, the 
economic security of the middle class has been [your] focus,'' and 
added that you view the Commission's role in enforcing laws that 
protect consumers and promote competition as linked in some way to our 
efforts ``to build a strong middle class.'' Do you believe that such a 
role requires the Commission to find substantial economic evidence of 
consumer harm before it finds an actual or likely violation of Section 
5 of the FTC Act? If not, is there some lesser standard of proof the 
Commission should follow (and if so, what is that lesser standard, and 
what steps should businesses take to ensure they do not violate it)?
    Answer. The Commission's enforcement decisions should be guided by 
the legal standards codified in the FTC Act, the case law that has 
developed around them, and the facts and evidence in each case. In 
competition and unfairness cases, I believe the central tenets that 
should guide enforcement decisions are harm to competition and 
consumers. Factual evidence, empirical evidence, and economic evidence 
are valuable in assessing whether practices would harm competition and 
consumers. The primary responsibility of a Commissioner is to ensure 
that enforcement decisions are made within the bounds of the relevant 
legal standards.

    Question 2. Some commentators, including even some former FTC 
Commissioners, have called for strengthening the due process rights of 
those who are investigated and prosecuted by the FTC. Do you believe 
that the Commission's existing Part 3 enforcement process sufficiently 
protects the due process and other rights of respondents, and if not, 
how could it be improved?
    Answer. Due process is essential to all investigations. If I am 
confirmed, I will work with my fellow Commissioners to ensure that the 
Commission adheres to the procedures that protect the rights of 
respondents. As I understand it, there are a number of procedural 
safeguards in place. Moreover, decisions by the Commission are 
reviewable by Federal courts. I believe these protections are important 
to respondents and to assuring the integrity of the FTC's 
investigations.

    Question 3. FTC Commissioner Wright observed, in a 2012 academic 
article, that Commission decisions have a ``significantly higher appeal 
and reversal rate than Federal district judges,'' and he found ``no 
clear evidence the Commission adds significant incremental value to the 
ALJ [Administrative Law Judge] decisions it reviews.'' Do you agree? If 
the FTC rules require the Commission's own Administrative Law Judge to 
conduct a trial when there appear to be disputed questions of fact and 
issues of witness credibility, is it ever appropriate for the 
Commission to disregard the ALJ's rulings on those issues, and if so, 
why?
    Answer. As I understand it, the Commission is operating as Congress 
designed it. I believe it is very important for the Commission to be 
committed to the rule of law. If I am confirmed, I will take seriously 
the responsibility of each Commissioner to thoroughly review the facts 
of each case, to judge each matter on its merits, and to hew to the 
bounds of the authority granted to the FTC by Congress.

    Question 4. FTC Commissioner Olhausen has cited the importance of 
``regulatory humility'' as Commissioner, while Commissioner Wright has 
stated that the ``[i]nability of an agency to translate its expertise 
into high-quality decision-making renders it at best ineffective and at 
worst costly to society.'' Do you agree? If not, what is your preferred 
approach?
    Answer. I view the FTC as primarily making enforcement rather than 
regulatory decisions. I agree that in making enforcement decisions it 
is incumbent on the FTC to proceed judiciously and make decisions based 
on the merits of the evidence before it. The FTC's long track record of 
protecting consumers and small businesses from frauds and deception and 
combating anticompetitive mergers and practices has helped to ensure 
that our markets function freely. If I am confirmed, I look forward to 
working with all my fellow Commissioners to hold the FTC to the 
standard of excellence it has established as we steward the 
Commission's important law enforcement mission.
                                 ______
                                 
     Response to Written Questions Submitted by Hon. Dan Coats to 
                            Terrell McSweeny
    Question 1. If confirmed to the Commission, share with me your 
threshold for supporting the initiation of an anticompetitive 
enforcement action. Do you support an enforcement approach that relies 
on empirical evidence?
    Answer. Yes. I believe empirical evidence plays a valuable role in 
antitrust enforcement. Antitrust cases must be thoroughly evaluated on 
a case-by-case basis. Empirical evidence can assist enforcers in 
assessing the harm to competition and consumers from mergers and 
conduct as well as potential efficiencies that might justify them.

    Question 2. I commend the work the Federal Communications 
Commission (FCC) and the Federal Trade Commission (FTC) have done in 
establishing a national Do-Not-Call Registry pursuant to their 
authorities under the Telephone Consumer Protection Act (TCPA). The 
registry is nationwide in scope, applies to all telemarketers (with the 
exception of certain non-profit organizations), and covers both 
interstate and intrastate telemarketing calls. I have heard concerns 
from my state regarding the regulation of high volume auto-dialer 
initiated Voice over Internet Protocol (VoIP) ``broadcasted'' calls. My 
understanding is that these calls can put 10,000 calls per minute onto 
Indiana's landline telephone network, by using VoIP technology, in an 
attempt to get around Indiana's Do Not Call List. Is this an issue 
you're aware of, and if so can you share your views on this topic with 
me?
    Answer. While I am not familiar with the specific issue involving 
Indiana's Do Not Call List, I am aware that there has generally been an 
increase in consumer complaints regarding ``robocalls'' and other 
practices that circumvent Do Not Call protections for consumers. If I 
am confirmed, I will support the FTC's enforcement efforts targeting 
violations of the Do Not Call rules. I believe it is also important for 
the FTC to work closely with the FCC, state attorneys general, and 
industry leaders to develop solutions.
                                 ______
                                 
Response to Written Questions Submitted by Hon. John D. Rockefeller IV 
                         to Michael P. O'Rielly
    Question 1. Prior to the FCC's adoption of recent reforms to the 
universal service high-cost fund, I held a hearing in which I pressed 
the FCC to make sure that those reforms help bring wireless service to 
rural areas that do not have it now. We also discussed how mountainous 
terrain and other topographical features can pose additional challenges 
and costs to wireless deployment in those areas. The Commission has now 
completed its Mobility Fund Phase One auction to provide support for 
wireless build-out in rural America. It is my understanding that some 
prospective bidders faced significant challenges in winning support 
under the Mobility Fund's Phase One rules. I know that the FCC is still 
considering reforms to the method by which it distributes wireless 
support in the future.
    If confirmed, will you commit to a thorough review of this method 
to be sure that its works effectively for all rural areas, including 
those areas, like West Virginia, that face topographical challenges?
    Answer. Yes.

    Question 2. On June 12, I introduced legislation with Senators 
Klobuchar and Blumenthal aimed at preventing bogus companies from 
cramming charges onto consumers' phone bills. Consumers have already 
lost billions of dollars because of wireline cramming. They cannot 
afford to lose any more. Could pro-active regulation by the FCC have 
prevented this massive consumer harm?
    Answer. While I wouldn't foreclose additional Commission 
regulations in this area, I tend to believe that the best mechanism to 
prevent and stop cramming is through vigorous enforcement actions. 
Cramming seems to be an inherently fraudulent, unfair and deceptive 
practice. As such the Commission's rules already prevent such 
activities, as do those of the Federal Trade Commission, which has 
taken a number of actions in this area.

    Question 2a. If confirmed, would you commit to working with me to 
protect consumers from cramming?
    Answer. Yes.

    Question 3. As we continue to move to a more wireless world, we 
cannot let crammers run from one kind of bill to another. That is why 
in June I wrote letters to the four national wireless providers asking 
about their policies for protecting consumers against cramming on 
wireless bills. As I have expressed in the past, it is important for 
both Congress and the FCC to be proactive on this issue. What should 
the agency do to make sure cramming does not move to other services, 
such as wireless?
    Answer. As a general matter, I agree that consumers using any type 
of service should not be subject to charges on their bill for services 
they did not actually purchase. Before determining what actions the 
Commission might take to address cramming on wireless or other services 
I would first want to know the extent that cramming is in fact 
occurring with such services. As previously noted, I tend to support 
greater enforcement of existing rules to combat cramming over new 
Commission regulations, which could increase overall costs on all 
wireless subscribers. I would be supportive of efforts to focus greater 
attention by the Commission on this issue and, if confirmed, I will 
look to the Commission's staff and industry stakeholders for data on 
this topic. In addition, the Commission should work in cooperation with 
the Federal Trade Commission, which has taken enforcement actions in 
this area.

    Question 4. Last year, I held a hearing that explored the future of 
the video marketplace, including the emergence of online video. The 
Committee heard that online video has the potential to be truly 
transformative, and to lead to greater choice, better programming, and 
lower prices for consumers. That is why I am concerned by recent 
reports indicating that pay television providers are seeking to 
foreclose opportunities for online video services to flourish in the 
marketplace. It is troubling that some cable operators are entering 
into agreements that seek to require or encourage media companies to 
withhold their programming from online video services. To the extent 
legislation is needed to prevent this possible anticompetitive 
behavior, I am willing to lead that effort. But I also believe the FCC 
has some existing authority to combat these practices. Do you believe 
that online video can ultimately serve as a competitor to broadcast, 
cable and satellite?
    Answer. Yes. It depends how broadly the term ``online video'' is 
interpreted, but I think it is a very likely direction the entire video 
services market may go in the near future.

    Question 4a. Do you believe regulatory action can help competition 
in the video marketplace thrive?
    Answer. I believe that removing barriers to the development of 
online video offerings could be helpful and prudent, so long as such 
efforts are not discriminatory against current providers, do not 
provide an unfair advantage, and do not unnecessarily interfere in the 
marketplace.

    Question 4b. If confirmed, would you commit to fostering the 
development of these innovative services and to make sure that they 
continue to benefit consumers?
    Answer. Yes.

    Question 4c. What actions would you take to make sure usage-based 
pricing by Internet service providers is not a barrier to online video 
providers?
    Answer. I would need further information from all stakeholders and 
will review developments in this area, but I am not sure that usage-
based pricing will develop as a real impediment to online video 
providers. Today's video consumers want their video content when, where 
and how they want it; companies that meet this demand will succeed. 
Incumbent video providers risk strong alienation from consumers if they 
stand in the way of consumer demand.

    Question 5. In the near future, the FCC will be auctioning spectrum 
in the 600 MHz band that is voluntarily relinquished by television 
broadcasters. A number of parties, including potential bidders, have 
asked the FCC not to allow the same interoperability issues in the 700 
MHz band to be repeated in the 600 MHz band. If confirmed, would you 
commit to making sure that interoperability problems do not occur in 
the 600 MHz band?
    Answer. It is my understanding that the Commission's Notice of 
Proposed Rulemaking for the broadcast spectrum incentive auction makes 
interoperability one of the five key policy goals along with utility, 
certainty, interchangeability, and quantity. I would need to review the 
full record in the proceeding, but at this point, these seem like 
reasonable goals. In some regards, this issue will need to be part of 
the overall discussion in determining the appropriate band plan and 
other important components for the incentive auction.

    Question 6. Payphones are a vanishing feature of the American 
communications landscape. Fifteen years ago, we had more than 2 million 
payphones across the country, but now we have less than a quarter as 
many. Despite this decline, they remain a primary link to the 
communications network for American households without any form of 
household phone. They are a vital part of keeping Americans connected 
and, as we saw during Hurricane Sandy, can be a lifeline in times of 
emergency. If confirmed, will you commit to reviewing existing payphone 
policies at the FCC in order to ensure that the Congressional mandate 
to compensate each and every completed call is met?
    Answer. As you note, the payphone industry is swiftly being 
replaced by other technologies, such as wireless phones. If confirmed, 
I would seek to ensure that the Commission complied with the provisions 
of the law.

    Question 6a. Will you commit to work to ensure that disputes over 
payphone compensation are resolved in an expeditious manner?
    Answer. In cases in which the Commission is authorized, the 
Commission should work to resolve any disputes quickly. I would need 
further information to determine whether this has been a problem in the 
past as it pertains to payphone complaints, and if so, the reasons for 
any delay.

    Question 7. As you know, I have long been concerned about the harm 
caused to kids by violent programming. That is why I have introduced 
legislation to have the National Academy of Sciences study the impact 
of violent programming on children's well-being. I also have long 
believed that parents must have effective tools to protect their 
children from questionable content, no matter how it is accessed. I 
know the FCC previously studied this issue in 2007 and 2009, 
discovering significant flaws in TV ratings systems and parental 
controls. Technology has changed dramatically since the FCC's original 
studies. Today's mobile devices and online video platforms offer 
children access to untold amounts of content and create additional 
challenges to parental oversight. If confirmed, will you push the FCC 
to update its 2007 and 2009 reports on media violence and parental 
control tools, particularly examining the impact of changes in 
technology on parents' ability to protect their children from 
questionable content?
    Answer. I would like to do everything I can to provide families and 
parents the opportunity to protect their children from unwanted 
material. The good news is that for many media platforms technology 
provides amazing new tools for parents in this cause, especially the 
development of Internet applications (or apps). If the Commission 
determines to initiate another study of media violence, I would want 
the Commission to take a hard look at all the new technology in this 
space available to help parents and kids.

    Question 8. Cybersecurity is one of the most critical national 
security challenges facing our Nation. Both the government and the 
private sector are under almost constant attack. These attacks cost us 
billions of dollars every year. The majority of our telecommunications 
network is owned by private companies. But it is in our national 
interest to defend our country against our adversaries who use this 
network to steal our business and government secrets. In July, I 
introduced a bipartisan cybersecurity bill with Senator Thune that 
would give the National Institute of Standards and Technology authority 
to facilitate and support the development of voluntary, industry-led 
cyber standards and best practices for critical infrastructure. If 
confirmed, how would you promote public-private sector cooperation to 
improve our ability to stop cyber-attacks?
    Answer. The Commission has limited authority in this area beyond 
being a conduit between the government and the private sector companies 
that design, develop, operate and maintain the Internet. To the extent 
the Commission can promote dialogue and cooperation between the parties 
with differing views, I would be pleased to help facilitate such 
activities, while maintaining deference to Congress and other Federal 
entities with greater roles on the issue.

    Question 9. As part of the 1996 Telecommunications Act, Congress 
directed the FCC to regulate media ownership. I remain concerned that 
broadcast television ownership groups are using arrangements like 
shared-services agreements to take effective control of TV stations 
that the FCC's rules say that they cannot own. Reports suggest that 
these arrangements also affect the marketplace negotiations that set 
the cost for the carriage of broadcast content. Would you agree that 
the FCC should take a hard look at these arrangements to determine if 
they comply with the spirit of the 96 Act and the FCC's regulations?
    Answer. Consistent with the requirements of Section 202(h) of 
Telecommunications Act of 1996, the Commission is obligated to review 
all of its media ownership rules quadrennially to determine whether 
such rules are necessary, reflecting added competition in the market, 
and to repeal or modify any regulation it determines to be no longer in 
the public interest, and that is what I would do, if confirmed. I would 
need further information and comment from all stakeholders to ascertain 
whether any party is circumventing the law.

    Question 10. The FCC has been tasked by Congress with ensuring that 
all parties in retransmission consent negotiations conduct those 
negotiations in good faith. How would you propose that the FCC judge 
good faith in such negotiations?
    Answer. I believe that the Commission's overall authority in the 
retransmission consent process is very limited given the provisions of 
the law. The Commission has a two-part framework to determine 
violations of the good faith negotiation contained in the statute. The 
Commission has an open proceeding from March 2011 that seeks comment on 
a number of suggestions and ideas relating to its good faith 
negotiations framework. I would need to review the full record before 
providing additional comment.

    Question 10a. Would you agree that setting forth more detailed 
standards for what is good faith in these negotiations would provide 
more certainty to the parties negotiating these deals, and would help 
protect consumers from prolonged blackouts of programming that they pay 
for each month?
    Answer. During my time as a congressional staffer, I have heard 
from some parties that have advocated for greater requirements on what 
qualifies as good faith negotiations and what should be permitted under 
the retransmission consent process. Others have advocated that the 
Commission take a different course by completely leaving the entire 
negotiating process to the private sector to resolve. I would need to 
review the full record of the Commission's open proceeding to provide 
more information on which perspective would provide greater assistance 
to consumers and would be consistent with the statute. The issue has 
generated significant interest from Members of Congress on both sides 
of the aisle. I would, of course, faithfully implement any 
Congressional requirements, should Congress pass additional legislation 
on the topic.

    Question 10b. Do you support the FCC requiring that consumers 
receive refunds when there is a prolonged blackout?
    Answer. I would need further information from all stakeholders to 
make an assessment. Under current procedures, consumers generally pay 
for multichannel video programming on a per-package basis rather than 
on a per-channel basis. Beyond whether it is advisable, it may be 
difficult to determine the value a consumer would be ``owed'' under a 
refund policy, if the Commission chose to impose such a requirement.

    Question 11. In retransmission consent negotiations, when 
broadcasters and pay television providers fail to reach agreement, 
screens go dark, and viewers are stuck bearing the brunt of these 
corporate disagreements. Under the Communications Act, broadcasters 
hold their licenses to use the airwaves ``in the public interest.'' 
Broadcasters are in a position of public trust. Do you believe 
broadcasters' pulling their signal in this way is consistent with the 
public interest?
    Answer. As a consumer myself, I sympathize tremendously with 
American consumers that are often caught in the middle of negotiations 
between media companies and content providers. No one supports 
television screens going dark. While broadcasters have the obligation 
to act in the public interest, the statute also provides broadcasters 
with retransmission consent rights. To the extent that broadcasters 
negotiate in good faith but do not come to contractual agreement with 
multichannel video program distributors, the statute provides 
broadcasters with the right to withhold programming. I would welcome 
further legal analysis on this matter.

    Question 11a. During the Time Warner/CBS dispute in August, Time 
Warner Internet customers were blocked from accessing free programming 
made available to all Internet users on CBS.com. Do you believe this 
online blocking is in conflict with broadcasters' charge as part of 
their FCC licenses to serve the public?
    Answer. I would need to hear from all relevant stakeholders on this 
matter, but I will suggest the blocking of Internet content is 
extremely shortsighted by content providers, in this case television 
broadcasters. American consumers are both savvy and fickle when it 
comes to Internet content. Stunts such as these tend to undermine 
consumer trust and loyalty that is hard to restore. Moreover, it also 
raises legitimate questions whether the retransmission consent process 
is being abused by broadcasters.

    Question 12. Several stakeholders have suggested that the FCC's 
rules on local broadcast market exclusivity (specifically, the rules on 
network non-duplication, syndicated exclusivity, and sports blackout) 
are market altering in the context of retransmission consent 
negotiations. You have professed support for free competition in the 
communications market. Do you believe that these rules affect market-
based carriage negotiations between broadcasters and pay TV providers?
    Answer. I do believe that these rules have an impact on the 
negotiations. Indeed, the Commission's open proceeding on 
retransmission consent seeks input on whether the rules do have an 
impact on the negotiations, whether the rules are already covered by 
contract negotiations between television networks, content providers 
and local broadcasters, and whether elimination of such rules would 
have any practical impact.

    Question 12a. Would you support reforming or eliminating these 
rules?
    Answer. I would want to hear from all stakeholders, but I would 
welcome the opportunity to consider whether these rules should be 
eliminated.

    Question 13. In Section 628 of the Communications Act, the FCC has 
been tasked by Congress to monitor and prevent unfair methods of 
competition or unfair or deceptive acts or practices in the cable 
marketplace. In your testimony, you state that you favor ``clear rules 
of the road'' to help consumers and industry. Is this the sort of 
instance where you favor the FCC adopting such rules of the road to 
implement this statutory responsibility?
    Answer. Section 628 is part of the statute and I would comply with 
the law. To the extent there are discussions on how best to change the 
statute, I would have to defer to Congress on that matter. A number of 
parties have argued that after 21 years, the 1992 Cable Act provisions 
should be reviewed.

    Question 14. In your testimony you speak of eliminating 
``unnecessary regulations.'' Can you name five such regulations that 
you believe are unnecessary?
    Answer. In my testimony, I stated that, if confirmed, I would focus 
on implementing and enforcing the applicable statutes enacted by 
Congress, work with my colleagues to address the pressing issues and 
bring certainty to the market, and look for opportunities to reduce 
unnecessary regulations or those that impose excessive financial 
burdens. I believe it is premature for me to specifically name 
regulations I would eliminate before arriving at the Commission and 
having the opportunity to review the intent and effect of existing 
rules. As a general matter, I believe one area that is an obvious place 
to start are the numerous and often overlapping reporting requirements 
placed on communications providers. I would also look closely at 
pending requests for forbearance to determine whether such requests 
have merit and whether the rules for which forbearance is being sought 
remain necessary. I would want to conduct a comprehensive review of 
existing rules before providing the Committee with any particular 
suggestions.

    Question 14a. How would you propose that the FCC decide what is or 
is not a necessary regulation?
    Answer. Generally, if a regulation is not squarely within the 
authority and responsibility of the Commission, has outlived its 
usefulness, is unneeded to meet the requirements of the statute, or 
imposes excessive costs then it should be considered for elimination. 
One test some people have suggested to use is one already contained in 
the statute. Specifically, Section 11 of the Communications Act of 
1934, as enacted as part of the Telecommunications Act of 1996, 
requires the Commission to conduct a biennial review of all Commission 
rules relating to telecommunications services and determine if they are 
no longer necessary. Some parties have sought to extend this review to 
video services, and I would be very open to exploring this option. In 
addition, a number of parties have sought to expand the Commission's 
Initial Regulatory Flexibility Analysis for small businesses and its 
Paperwork Reduction Act analysis to better incorporate a fuller cost-
benefit analysis in the Commission's findings to determine whether a 
proposed regulation is excessively expensive. Further, some have 
suggested applying these analyses to Commission rules already enacted 
to determine a more accurate cost-benefit basis. These are just a few 
ideas that could further the goal of an efficient and effective 
Commission.

    Question 15. Section 1 of the Communications Act says that one of 
the fundamental purposes of the FCC is to promote universal 
availability of communications to all Americans. I firmly believe that 
this universal service obligation today includes extending access to 
quality broadband nationwide. I am concerned about how we are going to 
meet this obligation with consumers in our rural areas, where there is 
often only one provider with a monopoly on service. What does the 
universal service principle in Section 1 mean to you?
    Answer. Universal service is a fundamental and longstanding 
principle of communications policy. It is embedded in many provisions 
of current law, and if confirmed, I commit to faithfully execute and 
enforce those provisions. I think the Commission's mission to ensure 
universal service is strong, but it must be done in a thoughtful manner 
and with recognition to the differences in our vast nation.

    Question 15a. How do you expect the FCC to achieve that principle 
through its regulatory mission?
    Answer. The Commission made a number of reforms to its Universal 
Service funding program for high-cost areas in December 2011. These 
changes bring the program--now known as the Connect America Fund--
better in compliance with the requirements of the statute and remove a 
number of hidden subsidies. In addition, the Commission focused the 
program on bringing broadband services to U.S. towns and areas that do 
not currently have service. Together, it is my view that the Commission 
can continue push for greater efficiency, stability, and affordability 
within its Connect America Fund, while keeping rural consumers as its 
main focus.

    Question 15b. The FCC's high-cost fund provides critical support 
for build out in areas like rural West Virginia and South Dakota. Do 
you agree that the high-cost subsidy is necessary for broadband 
deployment in those areas?
    Answer. I will seek to faithfully execute and enforce the 
provisions of the statute, in which the universal service provisions 
are included. It is my understanding that the Connect America Fund 
established by the Commission seeks to target funds to areas that would 
not otherwise have service absent a subsidy, while also removing 
support in areas that are served by an unsubsidized competitor. This 
seems like an appropriate framework and, if given the opportunity, I 
look forward to reviewing the current plans for further implementation 
of the Connect America Fund to make sure support is utilized in those 
areas that would not otherwise be served absent Universal Service 
support.

    Question 16. The voluntary incentive auctions created by the Middle 
Class Tax Relief and Job Creation Act of 2012 are essential to funding 
FirstNet. Designing those auctions is a complex task, and Congress 
deferred those decisions to the FCC, the expert agency in spectrum 
auctions. The FCC has to get the auction right--both to encourage 
participation and to raise adequate funds for timely construction of 
the FirstNet network. Do you agree that providing sufficient funding 
for FirstNet is an essential component of the incentive auctions?
    Answer. Yes, Congress assumed the Middle Class Tax Relief and Job 
Creation Act of 2012 would result in a successful spectrum incentive 
auction. In fact, Congress prioritized funding received from the 
incentive auction and other provisions in the law to include funding 
for broadcaster relocation costs ($1.75 billion), state and local 
implementation grants ($135 million), FirstNet ($7 billion), and public 
safety research ($100 million).

    Question 16a. All three sitting FCC Commissioners have committed to 
act quickly to begin these auctions and to avoid unnecessary delay. 
Will you make that same commitment?
    Answer. Yes. It is my hope that the spectrum incentive auction can 
be designed and conducted in the very near term, but conducting the 
auction successfully is more important than a speedy conclusion.

    Question 17. There is a strong argument that Section 629 of the 
1996 Telecommunications Act fostered the type of set-top box innovation 
that we saw from companies such as TiVo, which encouraged cable 
companies to respond with their own digital video recorders. Do you 
believe that Section 629, and the industry-wide rules the FCC issued 
pursuant to that section, were an important driver in this innovation?
    Answer. I am not in a position at the current time to make this 
assessment. The provisions of Section 629 of the Communications Act of 
1934, with which I am very familiar, have been subject to numerous 
legal and regulatory challenges since its enactment in the 
Telecommunications Act of 1996. Separately, one of the greatest 
advances in the developments of digital video recorders was the 
successful outcome of legal challenges by various content providers 
over potential copyright violations.

    Question 17a. What should the FCC do today to make the marketplace 
for set-top boxes even more competitive?
    Answer. While it may not be advantageous for the set-top box 
industry, the advancement of Internet services may be one direction to 
bring greater benefits to consumers. A number of video providers have 
examined the option of eliminating set boxes altogether and moving to 
server based systems. Further, the deployment of over-the-top video 
offerings--as part of a package of channels, on a per channel-basis, or 
on a per-program basis--may alleviate the need for set-top boxes.

    Question 18. Opponents of the FCC's Open Internet rules have argued 
that the antitrust laws should be sufficient to police the market in 
case bad behaviors occur. Is it not true that antitrust laws focus on 
harm to competition and do not encompass other public interest concerns 
and that under the Communications Act, Congress has charged the FCC 
with broader public interest duties including, for example, encouraging 
deployment of new communications services to all Americans and a 
diversity of voices?
    Answer. I agree that the structure and standards imposed under 
antitrust law are different than those in the Communications Act of 
1934.

    Question 18a. Do you believe antitrust litigation under the Sherman 
Act provides more or less certainty that is crucial to investment and 
job creation?
    Answer. There are pluses and minuses to any particular structure. 
The Commission's rules are only effective if they are enforced. 
Moreover, one needs to take into account the overall impact of the 
Commission's rules, which impose costs on every provider and every 
consumer versus only going after cases resulting from certain 
practices.

    Question 18b. How do after-the-fact enforcement actions--which can 
be very costly to the parties--affect investment incentives for small 
businesses, innovators, and entrepreneurs?
    Answer. Depending on the circumstances and if acted on quickly, 
after-the-fact enforcement actions could be more beneficial to affected 
participants as they focus on the direct behavior in question rather 
than attempting to anticipate all of the potential bad behavior that 
could arise. Moreover, an enforcement model can minimize the one-size-
fits-all problem of pro-active Commission rules, which can impose 
significant compliance costs on all industry participants and their 
customers.

    Question 19. Recent reports suggest that data caps are having a 
chilling effect on the ``over the top'' video market. For example, at 
least one company has reportedly suspended its entry into home video 
services out of concerns that broadband providers can exempt their own 
Internet-based video offerings from their data caps. The Department of 
Justice is apparently looking into this. On the one hand, broadband 
providers need to manage their networks. And consumers who use more 
bandwidth capacity should pay more. That's fair. But on the other hand, 
they can be anticompetitive. If a broadband provider sets these caps 
really low, they are preventing their customers from watching online 
video. This makes it harder for consumers to replace their pay 
television service with new online services. Should the Commission also 
actively monitor data caps to make sure that they are not employed in 
an anti-competitive, anti-consumer manner?
    Answer. The Commission should keep a watchful eye on developments 
and changes in the industry, as it should with most issues in the 
communications area.

    Question 19a. Would you support the FCC collecting [simple] data on 
how Internet service providers implement and administer caps to study 
any possible consumer harm?
    Answer. I have heard from a number of people who have expressed 
concerns over the Commission's data collection process in many 
instances. While I wouldn't rule out such data collection, I would be 
reluctant to endorse added data collection of Internet Service 
Providers without having an opportunity to discuss with relevant 
stakeholders or having a detailed cost analysis and an impact analysis 
on the industry participants.

    Question 19b. Should the FCC be concerned about discriminatory data 
caps, and if so, what steps should the FCC take to prevent these caps 
from limiting competition?
    Answer. In my opinion, it may be too early to know the impact of 
data caps on consumer behavior, but as stated above, the Commission 
should keep a watchful eye on developments and changes in the industry.

    Question 20. According to the FCC's 2012 Report on Cable Industry 
Prices, there is evidence that cable rates have risen at a rate in 
excess of inflation. The report noted that rates for expanded basic 
cable service increased by 3.7 percent during 2010, compared to an 
increase of 2.5 percent in the Consumer Price Index. Over time, this 
increase has been more substantial. In fact, from 1995 to 2010, rates 
increased 144 percent, compared to the Consumer Price Index increase of 
44 percent. One of the main reasons Congress passed the Cable Act 20 
years ago was to bring rates down. In your opinion, why, after 20 years 
and several new pay television entrants, do rates continue their 
dramatic yearly increases?
    Answer. In my opinion cost of video services has increased for a 
number of reasons, including the increased cost of programming, the 
expanded channel offerings and the added cost of regulatory 
requirements.

    Question 20a. Some have argued that this continued rapid rise in 
cable rates suggests that the pay TV market is not sufficiently 
competitive, and have proposed that the FCC re-examine its ``effective 
competition'' standard under Section 623 of the Communications Act. 
Would you support the FCC taking a fresh look at this standard to make 
sure it is accomplishing Congress's intent in the underlying statute?
    Answer. The fact that prices have increased does not mean 
necessarily that the market is not competitive. The added competition 
in this industry segment has also increased the leverage of content 
providers in their negotiations with video providers, thereby 
increasing the pressure on prices. Today, most consumers have a number 
of options for video services from which to choose and new innovative 
Internet video offerings are developing rapidly. In terms of the FCC's 
effective competition standard, the statute provides a multi-pronged, 
detailed definition of effective competition. To the extent the 
Commission is not complying with the law, I would want to hear from all 
stakeholders on the matter.

    Question 21. Some phone and Internet service providers have 
suggested that because of the high-cost of deployment of IP networks, 
rural areas may have to settle for wireless as a solution to IP phone 
service in the future. Do you think rural Americans are entitled to the 
same quality of service and prices for voice and broadband as Americans 
in our cities?
    Answer. Generally, yes. I am also mindful of the high cost to 
deploy service in many remote areas and the lower return on investment 
for communications providers in areas with very low population density. 
This is precisely why Congress established the universal service 
program in Section 254 of the Communications Act. But in establishing 
that section I note that Congress used very specific language 
indicating that consumers in rural areas should have access to services 
that are ``reasonably comparable to those services provided in urban 
areas and that are available at rates that are reasonably comparable to 
rates charged for similar services in urban areas.''

    Question 21a. How can the FCC work to make comparable, affordable 
service in rural areas a reality?
    Answer. The need to make services available in rural areas on a 
reasonably comparable and affordable basis is precisely why the 
Commission needs to run a very efficient and effective Universal 
Service high-cost fund (now known as the Connect America Fund).

    Question 22. Consumers are forced to pay for so many channels, when 
they watch only a few. Do you believe cable aa la carte legislation 
would benefit consumers?
    Answer. I would have to defer to Congress on legislation, but I 
have serious concerns that Congressionally-mandated aa la carte 
offerings would result in the desired outcome of lower costs or greater 
choice for consumers.

    Question 22a. Would you support elimination of rules, like the 
broadcast basic tier requirement, that might inhibit aa la carte?
    Answer. Yes, I would want to hear from all stakeholders but 
removing government barriers to the market moving to an aa la carte 
pricing regime seems to make sense. However, this may require a change 
in current law and would have to defer to Congress on that matter.

    Question 22b. What about limiting bundling and tying of video 
programming, to the extent they prevent market-based aa la carte 
options?
    Answer. To the extent that bundling or tying of video programming 
is done through private commercial contracts it seems something that 
should be left to the marketplace and not interfered with by 
government. It is my view that aa la carte programming will only 
develop if the market and consumers are willing to accept it.

    Question 23. Requiring disclosure of who is sponsoring broadcast 
advertisements, both commercial and political, goes back to the 1920s 
and the Federal Radio Commission. Subsequently this authority was 
rolled into the FCC when it was established in 1934. Specifically, 
Section 317 of the Communications Act of 1934 directs the FCC to make 
sure that all sponsored television content carries with it an on-air 
disclosure of the entity that paid for such content. In effect, it says 
that broadcasters have to let their viewers know when somebody has paid 
to broadcast material on their stations. Telling the viewing public who 
is paying for advertisements is not a controversial idea, and in fact 
it is what consumers expect and deserve. And earlier this year, the GAO 
recommended that the FCC update all of its sponsorship ID rules, given 
that many of them are decades old and not reflective of the television 
landscape today. Will you commit to carefully considering this issue 
once you are confirmed, after consulting with the legal experts at the 
FCC and not prejudging this issue?
    Answer. If confirmed and this issue comes before the Commission, I 
will consult with appropriate legal experts to comply with the law.

    Question 24. As you know, the Telecommunications Act of 1996 was 
designed to facilitate competition, in order to promote innovation and 
lower prices for consumers. A critical part of that Act was the 
requirement, under Sections 251 and 252 of the Communications Act, that 
incumbent telephone providers must interconnect with new competitive 
providers on fair terms--with state and Federal regulators looking on--
so they would not exploit their monopoly position to obstruct 
competition. Today, the telecommunications industry is going through 
dramatic changes. Old, circuit-switched telephone networks are giving 
way to new, IP-based technologies. The Commission has previously 
determined that the Congress intended for these interconnection 
obligations in the Communications Act to be technology neutral in order 
to preserve the fundamental principles of the Communications Act, which 
you professed to support during your confirmation hearing. Would you 
commit to closing the FCC's open rulemaking on IP-to-IP interconnection 
and establishing clear rules of the road for such negotiations?
    Answer. Changes in the form of technology do not change the 
importance of the need for networks to interconnect. At the same time, 
historical regulatory constructs in place to ensure interconnection for 
older technologies do not necessarily make sense as technology 
progresses. This is an important open issue before the Commission in 
which many comments have been filed. I look forward to carefully 
reviewing the record and meeting with stakeholders on this subject. 
Most recently, the Commission has sought comment on the possibility of 
initiating a number of trials or pilots regarding the ``migration'' to 
IP networks. One of the proposed IP trials the Commission proposed 
would focus on interconnection of IP networks and the resulting policy 
issues. I would be supportive of these efforts and would be interested 
in the outcome of any trials.

    Question 24a. Parties have raised concerns that the present free 
market system for completing peering and transport agreements is not 
working properly, and that some parties may be refusing to enter into 
such agreements for anti-competitive reasons. Would you agree that the 
FCC should monitor these developments closely?
    Answer. I would need further information on this to make an 
accurate assessment. It would seem reasonable to observe such 
developments closely to the extent such information is publically 
available.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Barbara Boxer to 
                          Michael P. O'Rielly
    Question 1. As you know, there is an ongoing debate regarding 
whether the contribution base for the Universal Service Fund should be 
expanded. USAC recently issued a decision that would effectively 
reclassify certain applications riding over the top of the broadband 
network and require them to contribute to USF. In light of this 
decision, I am concerned that USAC may soon begin assessing many types 
of over-the-top applications. As Commissioner, would you work with 
Congress on USF contribution reform to ensure that the Commission acts 
cautiously and deliberately on this issue?
    Answer. Yes, you have my commitment to do so. I have deep interest 
in those services and/or applications that ``ride'' on the Internet and 
share your concerns over any effort to capture such providers or 
innovators.

    Question 2. As you know, Congress requires the FCC to review its 
media ownership rules every four years to determine whether they uphold 
the core ideals of competition, localism, and diversity of media. These 
principles are fundamental to our democracy. Increased consolidation of 
our Nation's broadcast radio and television stations can lead to less 
local news coverage and fewer voices participating in the media.
    I am particularly concerned that women and ethnic and racial 
minorities are underrepresented in ownership of broadcast radio and 
television stations. Women own just 7 percent of broadcast radio and 
television stations, and ethnic and racial minorities own only 5 
percent of television stations and 8 percent of radio stations. hat 
steps would you take to ensure the Commission completes a timely review 
of its media ownership rules?
    Answer. The Commission is obligated by statute to complete its 
media ownership review every four years and I am deeply disappointed 
that the Commission has failed to complete its 2010 review. I believe 
the Commission has not done a good job of always keeping to statutory 
deadlines, including for the quadrennial review, and if confirmed, I 
will do everything in my power to ensure that the Commission meets its 
deadlines as required by Congress.

    Question 2a. How would you ensure that the media ownership 
rulemaking is based on a comprehensive and unbiased examination of the 
effect the rules have on ownership diversity?
    Answer. It is my understanding that prior to releasing its Notice 
of Proposed Rulemaking pertaining to the 2010 quadrennial review the 
Commission conducted eleven studies on various aspects relating to 
media ownership, including studies on competition, diversity, localism, 
and minority and women ownership. These studies were also subject to a 
six-month peer review process and the comments from peer review were 
available for additional critique by all stakeholders, including the 
American people. To the extent this process is not sufficient or 
effective, I would be open to suggestions on how to improve it.

    Question 2b. The Commission, which was required by the Third 
Circuit Court in 2011's Prometheus Radio Project v. FCC to complete a 
study on the effects of consolidation on women and minority ownership, 
outsourced their work to a third party, the Minority Media & 
Telecommunications Council. The MMTC delivered its truncated study in 
May with the caveat that it should only be considered as one element in 
the Commission's proceeding, not as dispositive evidence fulfilling the 
Court's mandate and not addressing the concerns of the Third Circuit's 
opinion. Do you feel that the MMTC study fulfills the Commission's 
mandate under the Third Circuit's opinion or that, as MMTC itself 
cautioned, it should only be taken as one piece of evidence in the 
Commission's deliberation?
    Answer. In addition to the MMTC study, it is my understanding the 
Commission's conducted a separate study focused on minority and women 
ownership issues prior to releasing its NPRM as required by the 
statute. I would need to further information from all stakeholders to 
make an assessment on the sufficiency of the MMTC study in meeting the 
court's directive.

    Question 3. Some Internet service providers that have traditionally 
offered unlimited plans are now implementing pricing schemes that limit 
the amount of data a customer can use, or charge customers for using 
data beyond a predetermined amount. Today, more than half of broadband 
Internet subscribers in the United States are subject to some form of 
bandwidth cap or usage-based pricing.
    Data caps and usage-based pricing have the potential to 
significantly impact how networks are designed and used. Furthermore, 
when bandwidth caps are paired with exemptions for certain content 
providers, the barrier to entry for new services increases, leading to 
fewer new products and competitors entering the market. Such exemptions 
to bandwidth caps may also violate the FCC's Open Internet Order, which 
established that fixed broadband providers may not unreasonably 
discriminate against lawful network traffic. Do you feel that the 
Commission should study the effect that bandwidth caps have on online 
video providers and consumer choice?
    Answer. I tend to agree with former Chairman Julius Genachowski, 
who argued that a tiered business model for the broadband services may 
be beneficial. Generally, the Commission should be extremely 
knowledgeable within reason about all of the services under it 
authority. I am not sure this situation warrants an official study, but 
if confirmed, I would have to hear from all stakeholders on the matter.

    Question 3a. Is there an approach the FCC could adopt in order to 
minimize the negative effects of usage-based pricing?
    Answer. If confirmed, I would need further information on the 
possible positive or negative effects of usage-based pricing.

    Question 3b. What other actions do you feel the Commission should 
undertake to promote the open Internet?
    Answer. While I welcome the views of others on the matter, I 
believe the Internet represents the greatest human invention we will 
ever see in our lifetimes. I do not believe that the Internet--given 
its dynamic and disruptive tendencies--lends itself well to being 
managed or controlled, and therefore, regulators should apply an 
extremely light touch in this space. Of course the Commission's 
authority to regulate in this area is the subject of ongoing litigation 
in the DC Circuit and my actions as a Commissioner will be guided by 
the decisions reached in that case.

    Question 4. Increasingly, our Nation's telephone companies are 
transitioning from traditional copper networks to wireless and 
Internet-based services. Last year, AT&T asked the FCC for permission 
to transition to an all IP-based fiber network on a trial basis in 
certain areas. In addition, Verizon recently filed a request with the 
FCC to discontinue traditional copper telephone service and offer 
wireless connectivity instead to certain communities affected by 
Hurricane Sandy.
    At the same time, the Commission has acknowledged that rural 
consumers are experiencing significant problems receiving long distance 
or wireless calls on their landline telephones. These problems appear 
to be attributable to the increased use of IP-based least-cost routing 
providers. What can the Commission do to ensure that such 
interconnection and reliability problems do not become more prevent as 
our Nation's telephone networks transition to wireless and IP-based 
services?
    Answer. The Commission has sought comments on whether to establish 
a number of trials or pilots to examine the impact, including the 
public policy issues, from greater use of IP networks. I would be 
supportive of such trials and think they could be helpful in 
understanding the future of communications. It is my understanding that 
the Commission's Technology Transitions Policy Task Force also recently 
announced that a public workshop will be held on October 15, 2013, at 
the FCC looking at these transition issues--specifically the transition 
from wireline to wireless-only networks and the transition from copper 
to purely fiber all-IP networks. I look forward to reviewing the 
results of this workshop, future trials and any other efforts of this 
Task Force.

    Question 4a. Should the reliability, interconnection, and universal 
service principles that currently apply to traditional phone service 
also be applied to IP-based voice services?
    Answer. It is my hope that if the Commission moves forward with IP 
network trials, which I would support, the related public policy issues 
will be fully explored as well. One issue that needs to be examined is 
whether the Commission needs to expand its telephone rules to IP 
networks or whether the marketplace, including increased competitive 
pressures, can best resolve disagreements between commercial entities 
offering communications services.

    Question 5. The E-Rate program, which has furthered the goal of 
bringing broadband Internet access to schools and libraries all over 
the country, is underfunded. Last year alone, the program had to turn 
away more than $2 billion in applications from schools and libraries 
nationwide, including many institutions in California. Experts project 
that demand for E-Rate support will continue to grow as wireless 
devices are increasingly introduced in the classroom.
    Moreover, the President recently announced the ConnectED 
initiative, which sets the goal of connecting 99 percent of public 
schools in the United States with next-generation broadband Internet 
access--at speeds no less than 100 Mbps and with a target of 1 Gbps. 
The President's proposal tasks the FCC with modernizing and leveraging 
the E-Rate program to achieve this goal. What would you do as a 
Commissioner to ensure that the E-Rate program continues to expand and 
bring affordable, high-speed broadband to schools and libraries?
    Answer. I am open to examining mechanisms to modernize the E-Rate 
program and bring greater broadband Internet access speeds to schools 
and libraries, and if confirmed, I will work with my fellow 
commissioners to do so. As part of this process, I think it is 
important to examine ways to refocus the E-Rate program on Internet 
access and find a way to offset any additional costs from such 
modernization.

    Question 5a. How would you propose funding and implementing the 
President's ConnectED proposal?
    Answer. The Commission's open proceeding on modernizing the E-Rate 
program seeks comments on ways to fund any expansion, should the 
Commission determine to do this, and I would need to review the record 
and talk with all relevant stakeholders to understand the impacts of 
any particular reform. The President's ConnectED proposal offers one 
way to fund any expansion of the process that has raised a number of 
concerns from outside parties that need to be fully reviewed.

    Question 6. Unleashing spectrum for wireless broadband is critical 
to our economy. However, the incentive auctions exclude many low-power 
television stations and translator licensees from participating. It is 
not clear what will happen to translator and low-power broadcast 
television stations at the conclusion of the repacking process which 
will follow the reverse auction. Over four hundred of these stations 
exist in California and serve a large and diverse portion of the state. 
How should the rules for the upcoming incentive auctions address the 
operation of translator and low-power television stations?
    Answer. The Middle Class Tax Relief and Job Creation Act of 2012 
does not provide any protection or special considerations for 
translator stations or low power television stations. In the case of 
low power television stations, those operating such stations have been 
on notice that their stations are subject to interference, as they 
operate on a secondary basis. Accordingly, the Commission will have to 
work with all stakeholders after the incentive auction to try to 
accommodate as many translators and low power television stations as 
can be permitted, taking into account the band plan adopted, the amount 
of spectrum allocated for television broadcasting in any market, and 
the number and location of broadcasters that remain.

    Question 6a. The upcoming spectrum auction also raises issues for 
stations close to the Mexican border. In 2012, Congress passed a bill 
requiring that the FCC coordinate with our counterparts in Canada and 
Mexico to ensure that the same issues that plagued broadcasters during 
the digital television transition won't happen again. How will the 
Commission further coordination efforts with their counterparts in 
Mexico to ensure that our borders will not face interference or signal 
issues that could potentially disrupt broadcasters' signals and 
viewers' access to their channels?
    Answer. As you note, the Commission is required under the Middle 
Class Tax Relief and Job Creation Act of 2012 to coordinate with Mexico 
and Canada to the extent that television broadcasters are repackaged 
into a smaller spectrum band, and if confirmed, I would ensure the 
Commission complies with the law. More importantly, failure to conduct 
such coordination would likely have an impact on the overall success of 
the incentive auction and the ability of some Americans to view the 
signals of broadcasters that remain post-auction. The Commission's open 
proceeding on this matter raises the coordination issue, including 
seeking comments on when best to conduct and complete the technical 
components of border coordination.

    Question 7. The Rail Safety Improvement Act of 2008 requires the 
installation of Positive Train Control (PTC)--a collision avoidance 
technology that relies on radio transmission--on many passenger, 
commuter, and freight rail lines by 2015. Ensuring the successful 
deployment of this life-saving technology is a high priority for me. 
Unfortunately, some rail operators have experienced delays in the FCC's 
review of their spectrum applications, and many passenger rail 
operators are struggling to access sufficient spectrum at an affordable 
cost. How do you propose the Commission work with rail operators to 
overcome these challenges so that PTC can be implemented nationwide?
    Answer. I am aware of a number of issues regarding the 
implementation of PTC and, while I am not privy to any details, it is 
my understanding that the Commission is working closely with the 
railroad industry and Federal partners, including the Federal Railroad 
Administration (FRA) to resolve the challenges. I would need further 
information from all stakeholders to make a more accurate assessment 
and commit to looking into the issue if confirmed.

    Question 8. The Commission's Lifeline program allows qualifying 
low-income individuals and families access to phone services that allow 
them to stay in touch with their loved ones, employers, and emergency 
providers. This program has recently come under attack for allowing 
participants to access wireless as well as wireline service. Do you 
believe that the Commission has a role in ensuring that low-income 
Americans have access to services on mobile devices?
    Answer. I support a complete top-to-bottom review of the Lifeline 
program to ensure that American ratepayers are receiving the greatest 
consideration for their investment. A number of parties, including many 
Members of Congress, have supported reform of the program, including 
whether the entire program should be continued. To the extent that 
changes are made to the program, I would seek to ensure that they be 
made in a technology-neutral manner.

    Question 9. The last Satellite Television Extension and Localism 
Act incentivized broadcasters to offer programming options to 
underserved customers who would otherwise lack access to local news. 
Congress will have the opportunity over the next year to address 
shortfalls in the current broadcast market and guarantee that customers 
have access to reasonably-priced programming that meets their needs. 
What positive changes would you like to see Congress make when it 
considers STELA reauthorization next year?
    Answer. I defer to Congress on possible legislative changes to 
STELA, and if confirmed, I would offer my assistance to your office or 
others interested.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Maria Cantwell to 
                          Michael P. O'Rielly
Spectrum Policy 
    Question 1. Mr. O'Rielly, I have a series of questions on spectrum 
policy. We hear about the spectrum crunch when it comes to licensed 
spectrum. Is there also a spectrum crunch when it comes to unlicensed 
spectrum?
    Answer. I have heard and read these concerns from a number of 
technology companies operating in this space. I would need to further 
information from all stakeholders to make a more accurate assessment.

    Question 1a. Does different propagation characteristics of the 600 
megahertz, 900 megahertz, and 2.4, 3.5, and 5 gigahertz spectrum bands 
enable certain uses and precludes others?
    Answer. In general, spectrum bands can have different propagation 
characteristics based on frequency. I would need further information 
from all stakeholders to make an accurate assessment to whether 
unlicensed spectrum users face similar limitations.

    Question 1b. If so, given the characteristics and restrictions of 
these different spectrum bands, is it important for innovators and 
users to have access to unlicensed spectrum at different frequencies, 
including spectrum below 1 gigahertz?
    Answer. It is important not to underestimate the creativity and 
innovative capabilities of those developing devices to operate in 
unlicensed spectrum bands. In my experience, the individuals and 
companies utilizing unlicensed spectrum have been able to do more with 
less than other spectrum users and they continue to push the boundaries 
on what is possible with any particular spectrum band or device.

    Question 1c. Do you support the use of the broadcast white spaces 
for unlicensed use?
    Answer. Yes.

    Question 1d. Does the Commission have the authority it needs to 
preserve a sufficient amount of spectrum in the 600 megahertz band for 
unlicensed use in the guard bands in each and every market?
    Answer. It is my understanding that the Middle Class Tax Relief and 
Job Creation Act of 2012 provides the Commission with sufficient 
flexibility to allow unlicensed spectrum uses in the 600 MHz band under 
certain circumstances. In fact, the Commission has proposed as part of 
its incentive auctions Notice of Proposed Rulemaking to provide a 
number of opportunities for unlicensed spectrum in the 600 MHz band. In 
particular, the Commission is taking comments on allowing unlicensed 
use in channel 37 of the television broadcast band, any so-called 
``guard bands'' created as part of the overall band plan for 
reallocating the reclaimed broadcaster spectrum, spectrum used by 
wireless microphones, and any residual spectrum remaining from the band 
plans conversation from six MHz television channels to five MHz 
commercial wireless services channels.

    Question 1e. The FCC required the development of a geo-location 
database to minimize the potential interference of unlicensed devices 
operating in the broadcast white spaces with over-the-air television 
broadcasts. Do you see geo-location databases being used in other 
unlicensed bands as a means to facilitate spectrum sharing?
    Answer. Geo-location databases now being established and operated 
for unlicensed use in the white spaces portion of the television bands 
may be helpful in promoting greater spectrum sharing in other bands in 
some circumstances. I would need further information from all 
stakeholders to make a more accurate assessment, but I am open to 
exploring this issue further with you and your staff.

    Question 1f. Do you believe current 3G and 4G wireless devices were 
designed to operate in a spectrum sharing environments where there may 
be some interference present from other wireless devices? Going 
forward, is that something the technology community and standards 
organizations need to examine and address?
    Answer. At this point, it is my understanding that the licenses 
held by those offering 3G and 4G wireless devices protect from unwanted 
or unauthorized interference, but I would need further information from 
all stakeholders to make a more accurate assessment.

    Question 1g. Do you believe it is technically and operationally 
feasible for commercial wireless providers to share several hundred 
megahertz of spectrum with Federal users?
    Answer. Depending on the circumstances, spectrum sharing may help 
provide additional commercial wireless opportunities in some instances. 
In general, cleared spectrum for private sector use is preferable to 
sharing between Federal and non-government users. I would like to see 
the Commission and the National Telecommunications and Information 
Administration work to clear additional spectrum now allocated to 
Federal users without jeopardizing the safety or mission of Federal 
users.

    Question 1h. As a practical matter, does the Commission's spectrum 
holding proceeding need to be completed before it completes its 600 
megahertz auction rules?
    Answer. For all practical purposes, yes. To the extent the 
Commission determines to alter its current spectrum holding review 
procedures, which it should very carefully consider before placing any 
increased limitations or restrictions on carriers, it is probably 
helpful and perhaps necessary to do so before the incense auction rules 
are finalized to promote a smooth and organized auction.
Native American Broadband
    Question 2. The FCC's Office of Native Affairs and Policy was 
established in 2010 to promote the deployment and adoption of 
communications services and technology throughout Indian country. Since 
then the Office has provided technical support and a critical point of 
contact for Indian tribes nationwide on a variety of FCC initiatives. 
If confirmed, will you continue to support this Office and its 
activities in Indian country?
    Answer. To the extent the Office of Native Affairs and Policy is 
determined to be helpful to relevant stakeholders and run in an 
efficient manner I would open to continuing its service, after 
consultations my other commissioners, if I am confirmed.

    Question 2a. The National Broadband Plan describes how the 
broadband deployment rate on Indian lands may be as low as 5 to 8 
percent. Due to their remote locations many Indian reservations are 
either unserved or underserved as companies focus broadband deployment 
efforts on more profitable, densely populated areas. What role do you 
envision for the FCC in encouraging broadband deployment on unserved 
and underserved Indian lands? Are there some specific things that might 
be achieved through the Universal Service Fund?
    Answer. I am extremely sympathetic to the problems faced by those 
living on tribal lands. The Commission's Universal Service Reform Order 
provides an additional infusion of funding for broadband deployment on 
tribal lands--separate and apart from its other funding reform efforts. 
If I am confirmed, I will examine additional ways to improve broadband 
availability on tribal lands.
Universal Service Fund Reform
    Question 3. Mr. O'Rielly, philosophically when it comes to 
reforming the contribution mechanism of the Universal Service Funds do 
you think it should be revenue-based or connection-based?
    Answer. The Commission has an open proceeding on this issue and is 
taking comments on the potential of moving away from a revenue-based 
collection method and moving toward other alternatives. There may be 
statutory limitations to what the Commission can do without additional 
legislative authority provided by Congress. I would need further 
information to analyze all alternative collection-based methods, but I 
would be concerned by any method that dampens Internet usage or 
increases overall costs for American consumers.
                                 ______
                                 
     Response to Written Questions Submitted by Hon. Mark Pryor to 
                          Michael P. O'Rielly
    Question 1. While the FCC has implemented many components of the 
21st Century Communications and Video Accessibility Act, there are 
concerns that some programming still is not fully accessible, including 
programming such as news and other video clips. How will you work to 
ensure that this law is fully implemented and all Americans are able to 
access all forms of communication? Can you make a commitment to ensure 
that not only do providers meet the letter of this law, but also the 
spirit by ensuring that closed captions and video descriptions are of 
sufficient quality?
    Answer. I believe the Commission has the obligation to fully and 
faithfully implement and enforce the provisions of applicable laws 
enacted by Congress. The 21st Century Communications and Video 
Accessibility Act is an example of a communications law in which I was 
not involved. Therefore, I would be open to learning from you and 
others integrally involved, and all relevant stakeholders, the intent 
behind certain provisions.

    Question 2. The voluntary incentive auctions will be a very large 
and important undertaking for the FCC. As a Commissioner, what 
principles would you use in evaluating incentive auction proposals?
    Answer. First and foremost, it would be my obligation, if I were 
confirmed, to follow the statute enacted by Congress. My general 
approach will be to ensure the process and the auctions are conducted 
consistent with four basic principles:

  (1)  Complete the process as soon as practicable;

  (2)  Bring the greatest benefits to American consumers;

  (3)  Ensure fairness for all stakeholders involved; and

  (4)  Maximize revenues for the Federal Government.

    Question 3. What would a successful incentive auction look like to 
you?
    Answer. Consistent with my four principles, a successful incentive 
auction would: reallocate a significant portion of spectrum allocated 
to television broadcasting for nationwide commercial wireless services; 
generate sufficient revenues to meet and exceed our obligations under 
the law, including the establishment and funding of FirstNet; ease the 
transition for broadcasters willing to voluntarily return their 
broadcasting licenses for reverse auction compensation; and provide a 
smooth repacking process for those broadcasters remaining on the air.

    Question 4. As you know, the Communications, Technology, and the 
Internet subcommittee held a hearing on the state of wireless 
communications. While the panelists did spar over a few issues, there 
was consensus that more spectrum is needed for commercial use. To that 
end, the FCC is preparing to auction several spectrum bands that are 
currently allocated for Federal use. How would you further efforts at 
the FCC to ensure more spectrum is made available to the private 
sector?
    Answer. In my experience, the Federal Government can reduce its 
allocation of spectrum, and therefore it represents the greatest 
opportunity to identify additional spectrum for commercial wireless 
services. In addition, there may an opportunity to increase dynamic 
spectrum sharing, but that in my experience the best path forward is to 
allocate as much spectrum as possible for flexible commercial use.

    Question 5. Do you have any thoughts you would like to share 
regarding innovative ways, such as financial incentives, to encourage 
Federal users to make more of their spectrum available for commercial 
use?
    Answer. On behalf of a number of Members of Congress I have drafted 
various legislative mechanisms over the years to facilitate the 
reallocation of spectrum from Federal users to commercial spectrum 
users. I would, of course, defer to Congress on legislation to further 
this goal, but I believe further action may be in order and would 
welcome the opportunity to be helpful to you or your staff, if 
possible. Options include providing financial incentives and/or 
disincentives for Federal users to hold spectrum that is not necessary 
to carry out their missions.

    Question 6. You biography shows your long interest in 
telecommunications issues, and I have heard from both staff members and 
outside interest groups of your deep knowledge of this subject matter. 
I also trust that as a staff member, you understand the importance of 
an agency's responsiveness to Members and staff. Do you have any 
priorities that you would like to pursue or advance at the FCC?
    Answer. You are very kind to indicate the positive comments from 
internal and external sources. The Commission was created by Congress 
and should be respectful to the concerns raised by Members. My first 
priority will be to comply with the applicable laws enacted by 
Congress, including provisions establishing a spectrum incentive 
auction and ensuring thoughtful implementation of its Universal Service 
provisions. One area I am particularly interested in is the application 
layer of Internet services (i.e., those services or applications that 
``ride'' the Internet).
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Amy Klobuchar to 
                          Michael P. O'Rielly
    Question 1. Mr. O'Rielly--Consumers deserve to keep and use cell 
phones they have already bought--it's just common sense. That is why I 
introduced the Wireless Consumer Choice Act with Senators Lee and 
Blumenthal. This bipartisan legislation directs the Federal 
Communications Commission (FCC) to take action to ensure consumers can 
``unlock'' and keep their phones when they switch carriers. If they are 
barred from making that choice because they would have to buy a new 
phone, it is not true competition. Competition can lead to lower 
prices, new innovations and improved service. The National 
Telecommunications and Information Administration (NTIA) also recently 
filed a petition encouraging the agency to take up this issue. Should 
you become a Commissioner at the FCC, will you commit to working with 
consumers, carriers, NTIA, and the Library of Congress to address 
unlocking?
    Answer. Yes. If I am confirmed to be an FCC Commissioner, I will 
work with all stakeholders to ensure that consumers who have met the 
obligations of their contracts continue to have the right and ability 
to unlock their wireless phones. Given that overturning the poor 
decision by the Librarian of Congress may require a legislative 
solution, I would defer to Congress on the best mechanism to preserve 
consumer unlocking.

    Question 2. Mr. O'Rielly--Consumers in the U.S. are increasingly 
reliant on text messages, photos and live video calls as smartphones 
and tablets continue to dominate the mobile market. However, many are 
frustrated that these rich means of communications cannot be used to 
contact authorities in an emergency. The importance of emergency 
services is why I serve as the co-chair of the Senate NG 911 caucus. 
The FCC should be commended for the important steps already taken to 
accelerate the development and deployment of NG 911 technology, but 
more work needs to be done. I would like to hear your thoughts about 
what you think the FCC can and should do to pro-actively promote the 
adoption of NG 911 and advanced emergency services?
    Answer. Successful development and deployment of NG 911 will 
require coordination on a number of important aspects, including 
funding, research, and educational efforts. The Commission can and 
should work with all stakeholders in implementing those relevant 
provisions of law already enacted, provide advice to Congress if 
additional legislation is warranted, and make appropriate changes to 
Commission rules--as needed--in a technology-neutral manner that does 
not stifle innovation. One of the benefits of the Commission's focus 
generally on the ``transition'' to all-IP networks is to explore the 
policy issues involving NG 911 systems.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. Mark Begich to 
                          Michael P. O'Rielly
    Question 1. Mr. O'Rielly, for several years many members of 
Congress, myself included, have expressed concerns about the need to 
improve the FCC's Transformation Order on Inter-carrier Compensation 
(ICC) and Universal Service Fund (USF) including the Quantile 
Regression Analysis model, in order to bring greater regulatory 
certainty for rate-of-return carriers. How would you go about pursuing 
such improvements and create reasonable certainty?
    Answer. I am aware that the Commission has made several 
modifications to the USF reform order to address concerns expressed by 
rural carriers. To the extent that additional modifications or 
corrections to the FCC's Universal Service Reform Order are necessary 
and would provide greater certainty to recipients, I would be open to 
reviewing any such suggested changes.

    Question 2. How would you go about updating the universal service 
program to ensure that rate of return carriers, like price-cap 
carriers, are eligible for USF based on the provisioning of broadband 
services even where customers don't take legacy voice services?
    Answer. The Commission's Universal Service Reform Order takes a 
major step to expand the scope of services covered to include broadband 
services. There are a number of parts to be implemented from that order 
and my conversations with a number of Members of the Committee 
highlight the need to take a closer eye with regards to certain aspects 
of the order, particularly support provided for rate-of-return 
carriers. It is my understanding that the Commission's Wireline 
Competition Bureau recently sought comment on the specific issue you 
raised, the ability of rate-of-return rural carriers to receive high-
cost support for customers who only purchase a broadband connection. 
Should I be confirmed, I commit to looking into the record on this 
issue and taking steps to address the concern as appropriate.

    Question 3. Are you willing to pursue additional modifications to 
the USF/ICC waiver process to make it less expensive, more useable and 
overall more realistically workable for small carriers?
    Answer. Yes, the waiver process should work for all stakeholders.

    Question 4. Will you commit to work with me to explore alternative 
approaches to high cost reform that will provide sufficient and 
predictable support for Alaskans who simply seek equal access to the 
communications tools available to the lower-48?
    Answer. Yes.

    Question 5. The main result of USF reform appears to adjust support 
from states like Alaska, which is a state unparalleled in cost to 
access, build, and deploy making it uniquely high cost to serve, by 
shifting support to less costly areas in the Lower 48. Alaska has 
already lost $28 million per year in annual high cost USF support as 
compared with 2011 even though Alaska has the most significant network 
deployment challenges of any state.
    If the FCC continues on its path for mobile support, with 
nationwide auctions in which Alaska providers compete with the rest of 
the country on a cost per person or roadmile basis, Alaska could likely 
see what is currently $105 million in support for CETC networks fall to 
about $5 million per year, based on previous auction results. A 95 
percent cut would be disastrous for Alaska and end any hope for 
comparable wireless voice or broadband service in rural Alaska. As FCC 
Commissioner will you work with my office to see that the FCC does not 
reduce Alaska support levels further?
    Answer. Yes, Alaska and her people deserve sufficient funding 
support to meet the goals and obligations contained in the statute, but 
not one penny more. This must also be done in a manner consistent with 
the overall size of the Universal Service funds. If confirmed, I would 
need to understand better the particulars of the data points you 
highlight and hear from all stakeholders, but I would welcome the 
opportunity to work with your office on the mater.

    Question 6. Do you believe there are any additional steps the FCC 
can take to ensure greater consistency between its regulations and the 
regulations or programs of other Federal agencies?
    For example, are there things the FCC can do to allow for a more 
careful consideration of how its proceedings and regulations impact the 
Rural Utilities Service's financing programs?
    Answer. During my time as a congressional staffer working on 
communications policy, I have been extremely troubled by the lack of 
coordination between different Federal agencies and their respective 
rules, especially the interaction and lack of consistency between Rural 
Utility Service funds and Universal Service funds. This is partly 
caused by divided congressional committee jurisdiction and the 
authorization process. This situation should be addressed, but it may 
require legislation to do so, and I would have to defer to the Congress 
on that aspect of the equation.

    Question 7. Are you willing to pursue modifications to the 
contribution mechanism that would make all of the Universal Service 
system's programs more sustainable for the future? Any thoughts on how 
to do that?
    Answer. Yes, the Universal Service program's contribution mechanism 
needs to be addressed in a manner that is fair for everyone: providers, 
recipients, and American consumers. The Commission has an open 
proceeding on this matter and I would need to review and hear from all 
stakeholders before making further suggestions.

    Question 8. Regarding the ``IP transition'' do you think it's 
important to preserve the statutory principles relating to the 
protection of consumers, promotion of competition, and assurance of 
universal service to all Americans in this process? How do we do that?
    Answer. Yes, regardless of the types of technology involved, it is 
important for the Commission to facilitate principles relating to the 
protection of consumers, promotion of competition and universal 
service. However, it is not certain that regulation is necessary to 
achieve those objectives. It is my hope that if the Commission moves 
forward with IP network trials, which I would support, the related 
public policy issues will be fully explored as well. One issue that 
needs to be examined is whether the Commission needs to expand its 
telephone rules to IP networks or whether the marketplace, including 
increased competitive pressures, can best resolve disagreements between 
commercial entities offering communications services.

    Question 9. How can the Commission best ensure that rates for 
essential voice and broadband services in the highest cost rural areas 
remain affordable to consumers?
    Answer. The need to make services available in rural areas on a 
reasonably comparable and affordable basis is precisely why the 
Commission needs to run a very efficient and effective Universal 
Service high-cost fund (now known as the Connect America Fund).

    Question 10. What are your views on data caps or data tiers on 
wired and wireless broadband and their impact on the growth of online 
video?
    Answer. I tend to agree with former FCC Chairman Genachowski, who 
is quoted as stating that ``usage-based pricing could be a healthy and 
beneficial part of the ecosystem.'' If confirmed, I would want to keep 
a watchful eye and keep an ongoing dialogue with stakeholders operating 
in this space.

    Question 11. Federally recognized tribes have provided numerous 
comments in FCC dockets stating that broadband and advanced 
telecommunication services on tribal lands are insufficient. As FCC 
Commissioner will you commit to working to improve access and 
deployment of telecommunication serves on tribal lands? Will you have 
an open door policy for tribes interested in meeting with you to 
discuss these issues?
    Answer. Yes and yes.

    Question 12. What is your level of working experience with tribal 
nations, and in rural communities?
    Answer. During my time as a congressional staffer in the U.S. 
Senate, I have been exposed to the difficulties in bringing 
communications to sparsely populated lands in the U.S., such as rural 
communities or on tribal lands. My work extends outside the 
communications area, like U.S. farm policy reform, to cover a number of 
circumstances in which U.S. public policy directly or indirectly 
impacted rural America. I believe these instances will prove 
invaluable, if I am confirmed to be a Commissioner to the FCC.
                                 ______
                                 
     Response to Written Questions Submitted by Hon. John Thune to 
                          Michael P. O'Rielly
    Question 1. Mr. O'Rielly, rural Americans are facing significant 
call completion problems. I'm troubled by one study indicating that, 
during one period between 2011 and 2012, the incompletion rate was 13 
times higher in rural areas than in non-rural areas. Calls that fail to 
be completed result in rural businesses losing customers, and family 
members in rural areas being cut off from each other. As you can 
imagine, this is particularly a concern in states like South Dakota. 
That is why I'm pleased by the Federal Communications Commission's 
recent order and notice of proposed rulemaking that seeks to enhance 
the FCC's ability to investigate this problem, among other things. This 
action is overdue. How familiar are you with the call completion 
problems being experienced in many rural areas of the country, and 
would you commit to using your authority as a commissioner to address 
such problems, should you be confirmed?
    Answer. While I am not privy to the details of the item, I am aware 
that Acting Chairwoman Clyburn recently circulated an order and further 
notice of proposed rulemaking on this matter. I would tend to agree 
with the comments made by Chairman-designate Wheeler at his 
confirmation hearing that this issue appears to be one of enforcement. 
To be clear, I believe that violations of the FCC's rules should be 
enforced vigorously and if the Commission needs to take additional 
enforcement action in this space I would be supportive.

    Question 2. Mr. O'Rielly, as you know, like other members of this 
Committee, I represent a state with significant rural areas, and I am 
firmly committed to expanding telecommunications opportunities for 
people in my state. Should you be confirmed as a commissioner, how will 
you approach the challenges rural America faces with respect to 
communications issues?
    Answer. During my many years working on communications policy, I 
have seen the importance of expanding communications services to all 
Americans. Having worked for several Senators in states with very rural 
areas, I am sympathetic to the challenges faced by rural consumers and 
will work to ensure the Commission focuses appropriate attention to 
these issues.

    Question 3. Mr. O'Rielly, as you know, Universal Service Fund 
reforms have had a significant impact on states like South Dakota that 
have large rural areas. Many in Congress have expressed concerns about 
the need to improve the FCC's reforms, particularly with regard to the 
Quantile Regression Analysis model used to determine recoverable costs 
for smaller rural carriers, to bring greater regulatory certainty for 
rate-of-return carriers. Do you believe it is important to provide 
rural broadband providers with greater regulatory certainty in the USF 
program? If so, do you have any thoughts on how to achieve that?
    Answer. I am aware that the Commission has made several 
modifications to the USF reform order to address concerns expressed by 
rural carriers. To the extent that additional modifications or 
corrections to the FCC's Universal Service Reform Order are necessary 
and would provide greater certainty to recipients, I would be open to 
reviewing any such suggested changes.

    Question 4. Mr. O'Rielly, as you know, one of the President's key 
initiatives is to make 500 megahertz of Federal spectrum available for 
commercial use. While more spectrum is absolutely necessary, I believe 
that we need to focus on the quality of that spectrum, not just the 
quantity. In particular, the 1755-1780 megahertz band is one that many 
of my colleagues and I would like to see opened up for commercial use. 
Should you be confirmed, will you work with me and this Committee to 
find ways, along with National Telecommunications & Information 
Administration (NTIA) and other Federal agencies, to free up more 
Federal spectrum for commercial use in a timely manner, particularly 
with regard to the 1755-1780 megahertz band?
    Answer. Yes. As I stated during my confirmation hearing, I believe 
we should examine the use of Federal spectrum to ensure it is being 
used as efficiently as possible and should look at all possible 
incentives to achieve this objective. Regarding the 1755-1780 band, the 
Department of Defense (DOD) has indicated it is able to exit this band 
and has submitted a transition plan which is currently under discussion 
with Federal and industry stakeholders. It remains to be seen whether 
the alternative band DOD identified and would like to utilize is the 
most appropriate place for relocation. In any event, the Commission 
should work to auction this band in a pairing with the auction required 
by statute of the 2155-2180 band.

    Question 5. Deployment of communications infrastructure is critical 
to achieving universal service and economic growth. Congress addressed 
this reality by providing traditional communications service providers 
a statutory right to attach to utility poles under Section 224 of the 
Communications Act. However, the FCC has not provided broadband-only 
providers the same ability. Do you believe the FCC has authority to 
extend pole attachment rights to broadband-only providers?
    Answer. The FCC's implementation of the pole attachment provision 
created by the Telecommunications Act of 1996 has generated numerous 
controversies and legal challenges since enactment. At the same time, 
they have proven to be valuable in extending certain communications 
services and competition to more Americans. It is my understanding that 
the Commission has not squarely addressed its authority with respect to 
broadband providers and broadband services in this context, so it 
remains an open question. To the extent that a determination is made 
that pole attachment rights should be extended to broadband-only 
providers and the Commission does not have authority to do so, the 
Commission should seek such authority from the Committee.

    Question 6. Should you be confirmed, will you commit to visit South 
Dakota or a similarly situated rural state within the first year of 
your tenure as a Commissioner to see firsthand some of the 
communications challenges facing rural communities?
    Answer. If I am confirmed, I would be pleased to visit South Dakota 
during my term and certainly visit a similarly situated rural state 
within one year of confirmation.

    Question 7. The FCC is the guardian of decency on the public 
airwaves yet it has not brought an enforcement action against any 
broadcaster in more than four years. Should you be confirmed, what 
actions would you take on the Commission to seek to enforce the current 
decency law?
    Answer. The Commission has an obligation to vigorously enforce all 
of its rules. If I am confirmed, I will work with my fellow 
commissioners to ensure that occurs, including as it pertains to its 
broadcast decency rules. I would begin by seeking information on the 
volume and types of complaints the Commission has recently received as 
well as a review of comments received in response to the Commission's 
most recent inquiry on the issue.
                                 ______
                                 
      Response to Written Question Submitted by Hon. Roy Blunt to 
                          Michael P. O'Rielly
    Question. What ability does the Federal Communications Commission 
have to help identify and procure new bands of spectrum suitable for 
commercial wireless operations and what should the Commission do to 
continue to the process of freeing up more spectrum for commercial 
purposes, especially after the broadcast incentive auctions, AWS-3 and 
H Block auctions have been completed?
    Answer. There are two main mechanisms to free new bands of spectrum 
for commercial wireless services: (1) the Federal Communications 
Commission (FCC) can seek to reallocate existing commercial spectrum to 
ensure such spectrum to is used as efficiently as possible, and (2) the 
FCC can work with the National Telecommunications and Information 
Administration (NTIA) at the Department of Commerce to identify 
spectrum allocated for Federal Government users (e.g., Department of 
Defense) that can be reallocated to commercial wireless services. In my 
experience, the Federal Government can reduce its allocation of 
spectrum, and therefore it represents the greatest opportunity to 
identify additional spectrum for commercial wireless services. In 
addition, there may an opportunity to increase dynamic spectrum 
sharing, but that in my experience the best path forward is to allocate 
as much spectrum as possible for flexible commercial use.
                                 ______
                                 
     Response to Written Question Submitted by Hon. Dean Heller to 
                          Michael P. O'Rielly
    Question. I have introduced the FCC Consolidated Reports Act in the 
United States Senate. This bill identifies 16 reports required of the 
FCC that could be eliminated and it also consolidates 8 separate 
reports of the FCC into a single report timed to the Congressional 
calendar. It has passed the House of Representatives by a vote of 415-
0.
    I believe this is a good government bill, do you agree? Do you 
believe that this bill would benefit Congress and the FCC? Will you as 
a Commissioner of the FCC work to encourage Congress to pass this 
common sense legislation?
    Answer. While I defer to Congress on any particular legislation, I 
am supportive of the ideas contained in the consolidated report bill 
and would be happy to work with you and others if I can be of 
assistance. I believe the Commission, Congress and interested parties 
can benefit from more thoughtful reports from the Commission and the 
elimination of unnecessary reporting requirements.
                                 ______
                                 
     Response to Written Questions Submitted by Hon. Dan Coats to 
                          Michael P. O'Rielly
    Question 1. The 21st Century marketplace has created a vibrant and 
competitive communications and technology sector, but the marketplace 
only works for established players and new entrants if there is 
transparency and predictability in the Commission's processes. The 
communications and technology sector continues to innovate, and with 
their innovation comes job creation. The FCC can stop job growth in 
this sector dead in its tracks with onerous and unnecessary 
regulations, as well as unpredictability in its processes. I was 
pleased to see that, in your committee questionnaire, you noted these 
same concerns. Are there specific regulations that you can point to as 
barriers to innovation that you wish to focus the Commission's 
attention on?
    Answer. There are certainly a number of areas in which the 
Commission would do well to remove or refine its unnecessary rules and 
regulations, and the Commission has looked periodically to do this. I 
will suggest one such area that generates my extreme interest is the 
growing list of services or applications that ``ride'' the Internet, 
such as VoIP and over-the-top (OTT) video services (some refer to as 
IPTV). Just recently, the Commission finalized its regulatory fees for 
FY 2013 and included a new fee set for FY 2014 for ``IPTV licensees'' 
without much clarity over the breadth of the category. I would have 
concerns if such a fee were applied to OTT services, as it would seem 
to be counterproductive to the advancement of the Internet and 
innovation.

    Question 2. The spectrum incentive auction is a first-of-its-kind 
process. If executing the auction was not challenging enough, my 
understanding is that the FCC also faces a number of technical issues 
such as not yet knowing what chunks of spectrum TV broadcasters will 
voluntarily surrender. I understand a process is in place via the task 
force the Commission has created to work through all these issues, but 
what obstacles, if any, do you see what will prevent the Commission 
from meeting its stated goal of 2014 for the auction?
    Answer. The spectrum incentive auction, as authorized and required 
by the Middle Class Tax Relief and Job Creation Act of 2012, will be 
the most complex auction process ever designed and conducted by the 
Commission. It will require near perfect execution of the reverse 
auction, the forward auction, and the repacking of spectrum now 
allocated to broadcast television services. There are numerous items 
that could cause the auction to be delayed, but if the Commission 
conducts an open process, listens and works constructively with all 
stakeholders, including American consumers, and makes sound decisions, 
I am hopeful that the 2014 goal can be achieved. While expediency is 
certainly appropriate given the need for additional spectrum for 
commercial wireless uses, our paramount concern should be getting this 
process right.

    Question 2a. As someone who, until now, has been an ``outsider 
looking in'' at the process, can you share your thoughts on how the 
process is going?
    Answer. Given my current responsibilities, I have not had the 
chance to review the complete record in this proceeding. While I have 
heard a number of concerns from affected parties and certain issues 
require attention, at this point it appears the Commission, and its 
dedicated staff, have set the stage for the Commissioners to make the 
difficult decisions necessary to move forward with the auction.

    Question 3. I have heard concerns from my state regarding the 
regulation of high volume auto-dialer initiated voice over Internet 
protocol (VoIP) ``broadcasted'' calls. My understanding is that these 
calls can put 10,000 calls per minute onto Indiana's landline telephone 
network, by using VoIP technology, in an attempt to get around 
Indiana's Do Not Call List. The Commission has, pursuant to its 
authority under the Telephone Consumer Protection Act (TCPA), worked 
with the Federal Trade Commission (FTC) in establishing a national Do-
Not-Call Registry. The registry is nationwide in scope, applies to all 
telemarketers (with the exception of certain non-profit organizations), 
and covers both interstate and intrastate telemarketing calls. Is this 
an issue you're aware of, and if so can you share your views on this 
topic with me?
    Answer. I am aware of the issue as both a consumer and an 
individual who has followed VoIP issues closely for over a decade. In 
this case, the heart of the issue is not one based on the newer 
technology, as the adoption of VoIP can bring tremendous value and 
benefit to consumers. Instead, this issue appears to be one best 
addressed by enforcement.

    Question 4. On April 29, 2013, my office addressed a letter to 
then-Chairman Genachowski regarding Non Commercial Educational (NCE) 
Public Interest Obligation (PIO) television stations and the FCC's 
process for reviewing complaints concerning underwriting announcements 
by these stations. The May 17th response from Michael Perko, Chief of 
the Media Bureau's Office of Communication and Industry Information, 
ignored my inquiry and included a reference to parity between PBS and 
non-PBS television stations, an issue my letter did not address. Later 
research reveals the FCC sent my office was sent an identical form 
letter that also was sent to Rep. Andre Carson (IN-7) and Senator 
Inhofe in May 2013, both of whom addressed the parity between PBS and 
non-PBS stations. As a Commissioner, will you and your staff read and 
appropriately respond to inquiries and/or comments from Members of 
Congress?
    Answer. Yes, Members of Congress have my commitment to read and 
respond accordingly to their views.

    Question 4a. Given the current economic environment, many of these 
NCE PIO television stations remain concerned about the FCC's criteria 
for underwriting announcements and its process for enforcing these 
rules. Do you support offering greater opportunities for these stations 
to engage with the FCC to ensure that they do not violate the rules for 
underwriting announcements, and that the penalties for inadvertent 
violations are not unduly severe?
    Answer. Yes, I would be supportive of efforts to provide non-
commercial educational stations greater clarity and/or guidance, 
including possible illustrative examples, pertaining to the 
Commission's rules on underwriting to ensure that these stations are 
not subject to penalties for inadvertent violations.
                                 ______
                                 
      Response to Written Questions Submitted by Hon. Ted Cruz to 
                          Michael P. O'Rielly
    Mr. O'Rielly: as you may be aware, on April 10 of this year myself, 
along with Leader McConnell, Sen. Cornyn, Ranking Member Thune, and the 
remaining Republican members of the Commerce Committee, sent a letter 
to the FCC expressing our grave concerns over any FCC attempt to impose 
the requirements of the failed DISCLOSE Act by regulatory fiat. In 
light of those concerns, I have several questions I'd like you to 
answer:

    Question 1. Does the FCC have the authority to implement the kind 
of requirements laid out in the DISCLOSE Act?
    Answer. The DISCLOSE Act, as it was considered by Congress in 2010, 
was a comprehensive bill to regulate certain practices involving 
political campaigns, providing authority to the Federal Election 
Commission to implement its numerous provisions. To the extent the FCC 
attempted to use its limited authority, which is at best tangentially-
related to the issue, to impose DISCLOSE Act-type requirements, absent 
Congressional direction via a new law, it would likely raise issues 
challengeable in our court system.

    Question 2. When it comes to the issue of regulating political 
speech, which institution do you believe has primary authority in this 
area--Congress or the FCC?
    Answer. The Commission is a creation of Congress and exists to 
implement and enforce laws passed by the Congress.

    Question 3. To the extent that you believe the FCC has the legal 
authority to regulate political speech, what statutory provision or 
provisions would you point to as the basis for that authority?
    Answer. As a general matter, I believe the Commission must tread 
extremely cautiously when taking any actions with First Amendment 
implications. The Communications Act of 1934 grants the Commission only 
limited authority in the area of political speech. Specifically, 
Congress provided the Commission with authority under section 317 of 
the Communications Act to require broadcasters to include, at the time 
of the broadcasting, an announcement about sponsorship if the broadcast 
was paid for or furnished by another entity. In addition, under Section 
315 of the Act, Congress established certain requirements on 
broadcasters to allow for equal opportunities for candidates for public 
office and public disclosure. To determine whether or not any 
particular action to regulate political speech was within the 
Commission's authority would require additional legal analysis based on 
the specific action being considered. But, again, any such actions 
would need to be solidly within the specific authority granted to the 
Commission by the Congress and consistent with First Amendment 
jurisprudence.

    Question 4. To the extent that you believe the FCC has the legal 
authority to regulate political speech, what principles would guide 
your decisions on when limitations on political speech are justified?
    Answer. As a strong supporter of the First Amendment to the U.S. 
Constitution, I would be reluctant to impose any limitations--either 
directly or indirectly--that had an impact on political speech.

    Question 5. With regard to any potential FCC regulation involving 
political speech, how confident are you that the FCC's involvement in 
this area could be accomplished while preventing the kinds of abuses 
that we've discovered were prevalent at the IRS?
    Answer. I am not an expert on the issues resulting from the IRS 
review of conservative not-for-profit organizations' tax filings. If 
the FCC was to modify its rules, promulgated to implement Section 317, 
to require greater disclosure in political ads, it could potentially 
have a negative impact on local television and radio broadcasters, as 
the burden of compliance lies with broadcasters, not the ad sponsor. To 
the extent broadcasters increase scrutiny or cease to accept political 
ads under additional regulatory provisions, political speech may be 
harmed or lessened, raising potential constitutional issues. I would 
have concerns that the FCC could execute changes to its rules that 
could pass constitutional muster or enforce such rules in a way that 
does not lead to further problems.

    Question 6. To the extent that you believe that both Congress and 
the FCC have the ability to regulate political speech, how would the 
FCC, under your leadership, proceed with reconciling any differences in 
approach between the two bodies?
    Answer. It is my view that it would be in the best interest of the 
Commission to focus its attention on its extensive list of items in 
which it must address (e.g., incentive auctions) and avoid involving 
itself in any area still under considerable debate by Congress.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. Deb Fischer to 
                          Michael P. O'Rielly
    Question 1. Mr. O'Rielly, former Commissioner McDowell recently 
called for the Federal Government to conduct a ``bona fide audit'' of 
its spectrum holdings.
    As our Nation seeks to reallocate spectrum between Federal and non-
federal users, and between industries, do you support a full audit of 
all spectrum users and their holdings to guide this process and ensure 
the proper stewardship of this vital national resource?
    Answer. By all accounts, there is a spectrum scarcity facing our 
commercial wireless providers; additional spectrum is needed to meet 
the demand of consumers. Given that the most likely bands for these 
purposes are now allocated for Federal users, it would seem to make 
sense to focus any audit on these bands, and I would supportive of such 
an effort. Beyond simply auditing the holdings of Federal spectrum 
users, I think it is also important to have a better understanding of 
the types and frequency of use of different Federal spectrum users.

    Question 2. Mr. O'Rielly, in 2008 Congress passed the Rail Safety 
Improvement Act (RSIA) calling on those in the railroad industry to 
install a new safety technology--known as Positive Train Control or 
``PTC''--on specific rail lines by the end of 2015.
    As I understand the current situation with regard to the FCC's role 
in this matter, the railroads have been instructed by the FCC to stand 
down on the deployment of their PTC antenna structures due to the FCC's 
antenna review and permitting processes.
    Are you familiar with this problem and can you share your views 
with the members of this Committee on the matter at hand?
    Answer. I am aware of the difficulty faced by railroads in siting 
towers necessary to meet the requirements of Positive Train Control and 
I would be supportive of efforts to ease the process.

    Question 2a. Do you have any suggestions as to a solution to the 
problem or a means for expediting the process?
    Answer. The railroad industry has sought waiver of a height and 
power limitations. One consideration may be to separate towers into 
categories based on size and location and provide relief for those in 
the less sensitive circumstances.

    Question 3. I understand that the FCC Wireline Bureau is working on 
a new model to allocate universal service funds for price cap 
companies. I also understand that, in some states, substantial numbers 
of customers will be assigned to satellite services for broadband.
    Do you have information on how many customers in each state will be 
assigned to satellite services for universal service under the FCC's 
new model? If so, please forward that information to each Member of the 
Senate Commerce Committee.
    Answer. I am not aware of such information at this time.

    Question 3a. If you do not have that information, will you commit 
to obtaining that information and forwarding it to each Member of the 
Senate Commerce Committee during your first 30 days at the FCC?
    Answer. If I am confirmed, I would be pleased to provide the 
Committee with such information as soon as it is practicable.

    Question 4. Since coming to Congress, I have taken an interest in 
the need to get more spectrum for commercial services. I think we need 
to be smart about how we move forward with spectrum policy. What are 
your views on how we can do this better?
    Answer. In my experience, the Federal Government can reduce its 
allocation of spectrum, and therefore it represents the greatest 
opportunity to identify additional spectrum for commercial wireless 
services. In addition, there may an opportunity to increase dynamic 
spectrum sharing, but that in my experience the best path forward is to 
allocate as much spectrum as possible for flexible commercial use.

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