The Republican-controlled US Senate today confirmed a Trump nominee to the Federal Communications Commission, ensuring that President-elect Joe Biden’s FCC will be deadlocked at 2-2 upon his inauguration.
The Senate voted along party lines to confirm Nathan Simington, a Trump administration official who helped draft a petition asking the FCC to make it easier to sue social media companies like Facebook and Twitter. Democrats say he is unqualified for the position.
“During his confirmation hearing even the most basic questions about FCC issues seemed to trip up Nathan Simington. It’s clear he is wholly unqualified to help lead this agency,” Sen. Richard Blumenthal (D-Conn.) wrote on Twitter today.
Shortly after noon today, the Senate voted 49-47 to end debate on the Simington nomination. At about 5pm, the Senate confirmed the nomination by a vote of 49-46. Simington’s nomination was previously advanced to the Senate floor in a 14-12 vote by the Senate Commerce Committee.
Trump nominated Simington to replace Republican Michael O’Rielly after O’Rielly declined to support the president’s attempted crackdown on social media websites. With Chairman Ajit Pai set to leave the commission on January 20, 2021, upon Biden’s inauguration, Simington’s confirmation will prevent the Biden FCC from having a 2-1 Democratic majority in January. (O’Rielly would have had to leave the commission at the end of 2020 even if Simington hadn’t been confirmed today.)
Biden should eventually get a 3-2 majority, but only after the Senate confirms whoever Biden nominates to the third Democratic slot.
GOP’s goal is deadlock
Republican senators offered no justification for confirming Simington, a move that is clearly designed to prevent or delay the Biden FCC from pursuing Democratic Party goals such as the restoration of net neutrality rules. FCC Republican Brendan Carr acknowledged that motive in an appearance on Fox Business last week, saying “it would be very valuable to get Simington across the finish line to help forestall” the Democratic agenda.
“FCC nominee Nathan Simington’s only qualification is his eagerness to defend the President’s attacks on the First Amendment and Sec. 230 [of the Communications Decency Act],” Sen. Mazie Hirono (D-Hawaii) wrote on Twitter today. Section 230 is the law that Trump wants the FCC to reinterpret in order to limit social media platforms’ legal protections for moderating user-generated content.
Noting that Simington lobbied Fox News to support Trump’s Section 230 push, Hirono wrote that Simington’s “attempts to recruit Fox News hosts to bully the FCC shows he has no place leading that agency.”
“I think the purpose of confirming this nominee very simply is to deadlock the commission and undermine the president-elect’s ability to achieve the mandate the American people have given him and his administration going forward,” Blumenthal said on the Senate floor today.
Lame-duck FCC could pass Trump’s Section 230 plan
Simington’s confirmation makes it possible that the FCC will implement Trump’s Section 230 reinterpretation before Biden’s inauguration. The FCC still has a 3-2 majority as Simington replaces O’Rielly, but now all three Republicans are on record as supporters of the Trump administration’s Section 230 petition.
Carr enthusiastically supported the petition all along, claiming that Twitter and Facebook are biased against Trump and Republicans. Pai made his views known in October when he proposed new rules clarifying that social media companies do not have “special immunity” for their content-moderation decisions.
While Congressional Democrats urged Pai to “immediately stop work on all partisan, controversial items” in recognition of Biden’s victory over Trump, Pai hasn’t promised to do so. Berin Szóka, who opposes Trump’s Section 230 push and is a senior fellow at libertarian-leaning think tank TechFreedom, wrote that he thinks the Pai-led FCC will “likely” issue a final Section 230 order before Biden’s inauguration.
“After Twitter and Facebook had the temerity to label Donald Trump’s misinformation about voting and COVID-19, the president issued an executive order that had the simple purpose of retaliating against these social media platforms,” Sen. Blumenthal said today. Trump intended to “punish those companies for the mild inconvenience of a fact check,” he said, adding that “Commissioner O’Rielly recognized the dangers and the potential illegality of the president’s executive order and he had the temerity to speak up and tell the American public.”
Pai issued a statement after today’s Senate vote to congratulate Simington. “Nathan was raised in a rural community, and his confirmation ensures that this important perspective will continue to be represented on the Commission for years to come as the FCC continues its work on bridging the digital divide,” Pai said. “And with his experience at NTIA (National Telecommunications and Information Administration) and in the private sector, Nathan is well-positioned to hit the ground running.”
Biden FCC chair won’t be powerless
A 2-2 FCC would still have a chair, as Biden can promote one of the two Democratic commissioners to the top spot once he’s in the White House. That chair could even pressure the Senate to confirm whoever Biden nominates for the commission’s third Democratic slot.
“[T]he Chair can effectively shut down the agency until Republicans approve a third Democrat,” wrote Harold Feld, a longtime telecom attorney and senior VP of consumer-advocacy group Public Knowledge. “While this sounds like an industry dream, this would quickly become an industry nightmare as the necessary work of the FCC grinds to a halt. Virtually every acquisition by a cable provider, wireless carrier, or broadcaster requires FCC approval. Unlike in antitrust, there is no deadline for the agency to act. The Chair of a deadlocked FCC can simply freeze all mergers and acquisitions in the sector until Democrats have a majority.”
The chair could also “put the FCC ‘on strike,’ cancelling upcoming spectrum auctions and suspending consumer electronics certifications (no electronic equipment of any type, from smartphone to home computer to microwave oven, can be sold in the United States without a certification from the FCC that it will not interfere with wireless communications),” Feld wrote. “Such actions would have wide repercussions for the wireless, electronics, and retail industries.”
The chair in a deadlocked FCC could also take policy actions that don’t require a full commission vote and are “largely unreviewable,” Feld wrote. With net neutrality, a Democratic FCC chair could help turn the tide in a court case that will determine whether California can enforce a state law that replicates the net neutrality rules repealed by Chairman Pai. The US Department of Justice and ISP lobby groups sued California to block the state law with Pai’s FCC supporting the lawsuit. Even with a 2-2 deadlock, Biden’s FCC chair “can switch sides in the litigation, throwing its weight against the industry and supporting the right of states to pass their own net neutrality laws,” Feld wrote.