Dec. 2, 2020 Senate Commerce Committee Forwards Simington

Dec. 2, 2020

Senate Commerce Committee Forwards Simington Nomination

The Senate Commerce, Science, and Transportation Committee today voted 14–12 on party lines to favorably report the nomination of Nathan Simington to fill the seat on the FCC currently occupied by Commissioner Mike O’Rielly.

Sen. Richard Blumenthal (D., Conn.), who had stated at Mr. Simington’s confirmation hearing last month that he intended to put a hold on the nomination (TR Daily, Nov. 10), reiterated his opposition today, saying, “I will continue this fight on the floor. I will continue to do everything I can to hold this nomination and oppose it.”

Commissioner O’Rielly’s term expired June 30, 2019, but under the provisions of the Communications Act, he may continue in his post until the end of the current congressional session or until a successor is confirmed. Mr. Simington, who is currently a senior adviser at the National Telecommunications and Information Administration, has been nominated to fill out the remainder of the five-year term following Commissioner O’Rielly’s, that is, for a term that would end June 30, 2024.

Mr. Simington’s nomination has sparked controversy over his role in NTIA’s petition for the FCC to clarify the provisions of section 230 of the Communications Decency Act (TR Daily, Aug. 7), which provides liability protections for Internet intermediaries such as Facebook, Inc., Twitter, Inc., and Internet service providers from being treated as the publisher of third-party content when they remove content for being illegal, violating their terms and conditions, or as objectionable for other reasons. NTIA asked the FCC to clarify provisions that refer to “otherwise objectionable” content and “good faith” actions to restrict access to content.

NTIA’s petition was filed pursuant to an executive order issued by President Trump in May, which also included calls for the Justice Department to propose legislative changes to section 230 and for the Federal Trade Commission to consider enforcement actions against social media platforms and other online entities whose acts or practices regarding content moderation are deceptive or unfair.

President Trump had previously renominated Commissioner O’Rielly to another term, but he unexpectedly withdrew the nomination in August in what was widely viewed as a reaction to public remarks by Commissioner O’Rielly questioning the FCC’s legal authority to interpret section 230 (TR Daily, Aug. 7).

In a related action, Communications Workers of America President Christopher Shelton has written presumptive President-elect Joe Biden to urge him to designate FCC Commissioner Jessica Rosenworcel as Chair in January, and to nominate Debbie Goldman to the Commission. Even if Mr. Simington is confirmed, there is expected to be a vacancy on the Commission to be filled because FCC Chairman Ajit Pai recently announced his intention to resign effective Inauguration Day, as previous Chairmen have done (TR Daily, Nov. 30). Ms. Goldman is CWA’s long-time research and telecommunications policy director.

“In these roles, Jessica and Debbie will be the best people to help move your vision forward to encourage the equitable deployment of next-generation broadband networks while protecting consumers and good jobs in the telecommunications industry,” Mr. Shelton said.

In remarks before the committee vote on Mr. Simington’s nomination, committee ranking minority member Maria Cantwell (D., Wash.) noted that President Trump “abruptly pulled” Commissioner O’Rielly’s nomination, “reportedly in retaliation for Mr. O’Rielly speaking his mind” on section 230.

Sen. Cantwell also questioned Mr. Simington’s qualifications for the Commission post, citing his “lack of experience with the FCC, its statutory responsibilities, and many of the key issues at the agency.” She added that “real questions have been raised” about his testimony before the committee. “We now know, based on his own emails that he misrepresented his involvement” in advocating for FCC action on NTIA’s section 230 petition by seeking “national media personalities’ explicit help in putting direct pressure on the FCC to move forward on the administration’s Section 230 petition.” Politico has reported that Mr. Simington urged Fox News host Laura Ingraham to push the FCC to act on the petition.

In remarks after the committee vote, Sen. Blumenthal said, “I really regret that this committee is rushing to approve the nomination of Nathan Simington to the Federal Communications Commission.” He added, “What is at stake here … is in fact the independence of the FCC. Mr. Simington has stated his position and has actively worked on an issue that will come before the Commission.”

Sen. Blumenthal expressed concern that, with Chairman Pai planning to leave the Commission on Inauguration Day, the confirmation of Mr. Simington will mean a deadlocked Commission in midst of the COVID-19 pandemic and associated economic crisis that have highlighted the need for FCC action to ensure online connectivity as work, education, healthcare, social connections, and other activities move online.

“Mr. Simington has failed to provide this committee with the assurance that he will have the candor and independence that is required” of a Commissioner on an independent agency, Sen. Blumenthal said. He emphasized the he found Mr. Simington’s responses to questions from both Democratic and Republican members of the committee during his confirmation hearing to be evasive. “He has since had to correct the record in substantial ways,” Sen. Blumenthal added.

“It would seem Mr. Simington has been nominated for just one purpose,” that is, to forward President Trump’s aims with regard to section 230, Senator Blumenthal said.

“The FCC and the NTIA simply cannot be permitted to be an instrument of bullying in election campaigns,” he added.

He also pointed out that the committee has “in the past moved forward with paired nominations. In fact, [FCC] Commissioner [Jessica] Rosenworcel’s [re]nomination was held for eight months. She had to leave the Commission” and be renominated and confirmed before she could retake her seat.

In a statement on the committee’s vote, Sen. Ted Cruz (R., Texas), a strong advocate of section 230 reform, said, “In the remaining days of this Congress, the Senate should move expeditiously to confirm Nathan Simington. The Commission is closely divided, and with expected departures, a single vote could make the difference. Mr. Simington has pledged that he will work diligently to fulfill the FCC’s mandate to defend our nation’s communications infrastructure and champion the might of the free enterprise system, so companies can continue to innovate and foster fair forums for public expression and debate.”

Sen. Cruz added, “The FCC today faces perhaps the most challenging landscape of its history. From working to secure a strong and reliable telecommunications and broadband infrastructure for our communities, to addressing national security threats from foreign nations, and taming the runaway power of platform monopolies, major questions of the 21st century hang in the balance. The FCC can provide the American people with real transparency on Big Tech’s pattern of political bias and censorship and I will continue to urge members of the FCC to do so. I have confidence that Mr. Simington will add an important voice as the FCC works to address those challenges.”

In a statement reacting to the committee vote, Charter Communications, Inc., said, “Charter applauds Chairman Roger Wicker and the Senate Commerce Committee on today’s vote approving the nomination of Nathan Simington to serve on the Federal Communications Commission. We encourage the full Senate to move quickly to confirm him so he can begin contributing his talents to the Commission and the people the agency serves.”

Joshua Stager, senior counsel for New America’s Open Technology Institute, said, “The Senate should table this unnecessary nomination fight and focus on the pandemic relief legislation that everyone has been waiting for since March. Millions of Americans are suffering through the pandemic without access to the internet. We need FCC commissioners who are laser-focused on this crisis, not waging President Trump's personal vendettas against Twitter. Moreover, the notion that this nominee’s confirmation is explicitly intended to create gridlock at the FCC is galling. The American people don't need gridlock— they need help getting through this pandemic.”

Free Press Action Vice President–policy and General Counsel Matt Wood said, “Nathan Simington has zero qualifications for this position. He’s here only as a result of strong-arm political tactics to reward his loyalty to Trump. Hand-picked and then forced on the Senate by a now-defeated president, Simington was not chosen for his expertise or ability, but for his apparent willingness to improperly cast a vote on the unlawful, unconstitutional and just plain bad Section 230 petition that he helped write.

“Yet it seems that Senators [Mitch] McConnell [R., Ky.] and Wicker have taken up this controversial nomination at the bidding of a lame-duck executive over the misgivings of members of their own party. The sole purpose? Obstructing the incoming Biden administration and its FCC appointees,” Mr. Wood added.

“Even the Wall Street Journal could find no reason to justify its endorsement of Simington apart from his ability to gum up the works at the agency. The editorial page roundly criticized Trump’s 230 plan for the FCC yet called for Simington’s appointment because otherwise the Biden administration ‘could immediately get to work.’ It doesn’t get much more blatant and disgusting than that,” Mr. Wood said.

“This kind of obstructionism is always childish but during a national health crisis—when phone and internet connections are literal lifelines connecting families to remote work, online education and telemedicine—throwing a wrench in the gears of the agency designed to bridge the digital divide is despicably cruel,” he added. —Lynn Stanton, [email protected]