With Simington confirmed and Pai to exit, FCC faces deadlock

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The U.S. Senate has confirmed Republican nominee Nathan Simington, with a party-line vote, to a five-year term on the Federal Communications Commission. With Chairman Ajit Pai to depart the agency on Inauguration Day, Simington’s confirmation sets up an FCC split 2-2 along party lines until a chair can be confirmed.

No party may hold more than three seats on the FCC. The commission has two seats filled by GOP commissioners, two by Democrats; the chair is nominated by the president but requires Senate confirmation. Outgoing Chairman Ajit Pai was designated as chairman by President Donald Trump in January 2017, but was not confirmed as chair until December of that year.

Some historical context: In late 2016, as the Trump administration was set to take office, then-FCC Chairman Tom Wheeler did not immediately say he would step down as the new administration came in — but by mid-December, he had committed to the customary resignation on Inauguration Day. Senate Republicans at the time had held up for months the confirmation of Democratic Commissioner Jessica Rosenworcel, who had been unanimously confirmed to the FCC in 2012 and re-nominated to the agency in mid-2015 by then-President Obama. Rosenworcel was ultimately not confirmed before her term ended and had to depart the commission in early January 2017, leaving the FCC with a 2-1 Republican majority until her re-nomination by President Trump and confirmation in August 2017 alongside Republican Brendan Carr, which maintained the GOP majority on the commission.

Simington comes to the FCC from the National Telecommunications and Information Administration, where he has been holding a senior advisor position at the National Telecommunications and Information Administration since June of this year. He replaces Republican Michael O’Rielly, who was in the midst of a reconfirmation process when his nomination was abruptly pulled by the Trump administration after O’Rielly publicly mused on his wariness of demands that private companies curate speech in particular ways.

Large social media companies have long drawn conservative claims of censorship and have been the target of President Donald Trump’s ire, due to efforts by Twitter and Facebook to fact-check or even remove misinformation that the president tweets or which his campaign shares. In May, Trump issued an executive order to the Commerce Department to ask the FCC to review and “clarify” the section of law under which social media platforms are legally protected from liability for the content which their users post.

The FCC has since put up for public comment the petition for rulemaking that was submitted by the Department of Commerce, asking the FCC to reconsider the interpretation of Section 230 of the Communications Decency Act of 1996. Simington, as reported by The Verge, “played a significant role in drafting” that petition. In addition, Politico obtained emails of Simington’s, sent before his FCC nomination, in which he reached out to Fox News to get host Laura Ingraham on board for support for the FCC to reconsider Section 230 before the 2020 election, suggesting that democracy would be “weakened” otherwise.

His LinkedIn profile describes his work at NTIA as focused on “spectrum allocation and internet freedom issues.” Before joining NTIA in June, he previously served as senior counsel at wireless distribution company Brightstar for three years.

Andrew Jay Schwartzman, senior counselor at the Benton Institute for Broadband & Society, told the Washington Post that if the GOP continues to hold the Senate, that could make it difficult for President-Elect Joe Biden to fill the agency’s fifth slot and allow Republicans to “tie things up for an extended period of time, perhaps indefinitely,” at the FCC. Senator Richard Blumenthal (D-CT), at Simington’s confirmation hearing, suggested that the Republicans were moving forward with nomination in order to undermine Biden’s ability to move forward with a telecom agenda, and that telecom industry and media companies might also favor an FCC that is “absent or neutralized … gridlocked and dysfunctional” and essentially unable to change regulations or reinstate rules such as net neutrality. Blumenthal and Senate Minority Leader Chuck Schumer (D-NY) have also taken issue with Simington’s role in the administration’s push for the FCC to re-examine Section 230 and demanded that he recuse himself from related issues.

Blumenthal called Simington’s nomination “dangerous on more than any single issue because it threatens the independence and political integrity of the FCC.”

Pai congratulated Simington on his confirmation, saying that “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.” Other members of the commission, both Republicans and Democrats, also issued statements welcoming Simington to the FCC.

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