Senate OKs Simington; FCC S. 230 Movement Seen as Possible
Nathan Simington was confirmed to the FCC Tuesday after a largely muted Senate floor debate. Senate Democrats and groups opposed to Simington in the lead-up to the vote continued to raise concerns about the 2-2 commission deadlock that will result from his confirmation, once Chairman Ajit Pai leaves Jan. 20 (see 2011300032). Many also cited the FCC’s proposed proceeding on its Communications Decency Act Section 230 interpretation, a matter critics believe Simington should recuse himself from because he worked on NTIA’s petition for the rulemaking (see 2011100070).
Senators voted 49-46 along party lines, as expected (see 2012020069). Five didn’t vote: Vice President-elect Kamala Harris, D-Calif.; Kelly Loeffler and David Perdue, both R-Ga.; Mike Rounds, R-S.D.; and Sheldon Whitehouse, D-R.I. Perdue and Loeffler are campaigning in runoffs for their seats, which will determine whether Republicans retain their Senate majority. Harris, Loeffler, Perdue and Rounds didn’t participate in the 49-47 vote to invoke cloture.
Several telecom-focused lawmakers voiced concerns on the floor and in interviews that to stymie work on net neutrality and other matters, Republicans will inevitably block President-elect Joe Biden’s pick for a third Democratic commissioner.
Pai hadn’t circulated any items on Section 230 (see 2010150067) as of Tuesday, but a potential scenario involving an “interpretive rules” order on the matter could help him fast-track that proceeding toward a vote at the commissioners' Jan. 13 meeting, an FCC official told us. The official said a series of Monday tweets from TechFreedom Senior Fellow Berin Szoka on the possibility of interpretive rules sounds like a likely way for FCC action on Section 230 before Pai leaves. The agency didn’t comment.
Szoka suggested the agency “could, and likely will” carry out that scenario. Action on Section 230 would likely have to be a Jan. 13 meeting item ​to compel FCC Democrats to vote before Inauguration Day, an FCC official told us. The agency won’t be able to complete an NPRM or issue an effective declaratory order in the waning days of the Trump administration, Szoka said. The agency could use interpretative rules to "advise the public of the agency’s construction of the statutes and rules which it administers.” NTIA’s petition for rulemaking asked for such an interpretation, he said.
President Donald Trump, whose May executive order set off the bid for an FCC reinterpretation of Section 230 (see 2005280060), threatened again Tuesday to veto the conference FY 2021 National Defense Authorization Act if it doesn’t include language to repeal the statute. The House was set to have voted later Tuesday on the conference measure. “I hope House Republicans will vote against the very weak” NDAA bill, Trump tweeted. The measure “must include a termination of Section 230 (for National Security purposes).” The measure should also “allow for 5G,” he said. It’s not clear what Trump was referring to, though the conference NDAA includes several provisions aimed at hindering Ligado’s L-band plan rollout (see 2012040043). It also includes text of the Spectrum IT Modernization Act (HR-7310/S-3717). The White House didn’t comment.
Democrats' Concerns
Minority Leader Chuck Schumer, D-N.Y., Commerce ranking member Maria Cantwell, D-Wash., and Richard Blumenthal, D-Conn., were the only senators who spoke on the floor about Simington’s confirmation. All three opposed the nominee.
Schumer cited the vote as a departure from the chamber’s practice of moving nominees to independent boards and agencies in pairs “to keep balance.” Blumenthal noted concerns about an FCC deadlock. Blumenthal and Sen. Ron Wyden, D-Ore., spoke against Simington during a Monday evening webcast with Fight for the Future, Free Press, Public Knowledge and other groups opposed to the nominee.
Simington “seems to support” Trump’s “desired changes to Section 230,” Schumer said. “It appears that he severely misled” Senate Commerce members on his role in shaping the NTIA petition during a November confirmation hearing. He “was not only pushing the petition himself, he was actively lobbying Fox News to support it for political purposes” (see 2011240061), Schumer said.
Senate confirmation of Simington will leave the FCC “gridlocked and dysfunctional," Blumenthal said. That will “undermine” the incoming Biden administration’s telecom policy goals from the very beginning. If that happens, “this body bears” responsibility for the consequences, which are amplified because of the COVID-19 pandemic, Blumenthal said. Simington’s confirmation will be an “unprecedented assault on the integrity and independence of the FCC," he said: Simington is “clearly the White House’s wingman on” Section 230.
Cantwell voiced concerns about the deadlock but was less worried than other Democrats about the possibility that the Senate GOP will stonewall a future FCC Democratic nominee. “I’m sure” committee Chairman Roger Wicker, R-Miss., and Communications Subcommittee Chairman John Thune, R-S.D., will allow a Democratic nominee to move forward, she told us: “That’s part of the process,” just as it was for Simington and other FCC nominees during Trump’s administration. Moving Simington alone "is contrary to what we've usually operated under in good governance," Cantwell said on the floor. "Every member of this body should be concerned about setting a precedent and what it'll mean in the future." Biden "will deserve his nominee as well, and I hope our colleagues will move quickly to confirm them once they are nominated," she said.
Republican stonewalling of future Democratic FCC nominees is “something to be worried about,” but “the tradition of [Senate Commerce] has been to allow a president to nominate” a majority on the commission made up of members of his own party, said Communications ranking member Brian Schatz, D-Hawaii. “I see no reason for there to be any exception” with Biden as president.
Wicker made no commitments to move a third Democratic nominee without pairing a Republican nominee to another post. “We would have to look at” the nominee and the situation, he told us. Senate Republicans voted in unison for Simington but not without continued reservations, lobbyists told us. They remained concerned about his qualifications and preferred Commissioner Mike O'Rielly, who Simington will displace. GOP senators reportedly felt they were "getting pushed" by Trump to confirm Simington, something lawmakers "don't like even if it's someone from their own party," said one lobbyist who follows Republicans' deliberations.
PK Senior Vice President Harold Feld suggested Tuesday that the chair “of a deadlocked FCC could simply freeze all mergers and acquisitions in the sector until Democrats have a majority” or put the FCC “on strike” by “canceling upcoming spectrum auctions and suspending consumer electronics certifications.” Such actions “would have wide repercussions for the wireless, electronics, and retail industries. But the FCC Chair could slowly ratchet up the pressure until industry lobbyists pushed Republicans to confirm a third Democrat,” he said. “The only way for President-elect Biden and Democrats to work with Republicans is to show them at the outset that they can be just as destructive to Republican interests and constituencies as Republicans are to Democratic interests and constituencies.”