With Monday’s announcement by Ajit Pai that he will step down as Chairman of the FCC on January 20, 2021, the future composition of the Commission has led to guessing games among Washington pundits and Inside-the-Beltway observers.
But, there’s little debate as to who the next Chair of the FCC will likely be. Rather, the person who will replace Republican Mike O’Rielly, who is also leaving the Commission, is in question — even after the Senate Commerce Committee on Wednesday confirmed the individual nominated by the Trump White House to succeed O’Rielly — Nathan Simington.
An Executive Session of the Senate Commerce, Science and Transportation Committee saw Members gather in person at Russell 325 on Capitol Hill for what turned out to be a very short affair.
Up for consideration: The nominations of Greg Autry, of California, to be NASA’s CFO; Daniel Huff, of Massachusetts, to serve as the Department of Commerce’s Assistant Secretary; and Simington as a Republican FCC Commissioner.
The vote to recommend the full Senate’s confirmation of Simington ended up in his favor, but by the thinnest of margins, coming on a 14-12 party-line voice vote.
That’s because the very nomination of Simington from the Trump Administration, made September 16, is steeped in the politically divisive status of Section 230 of the Communications Act of 1996.
Speaking Wednesday at the hearing, Democratic Senator Maria Cantwell was highly critical of the nomination by the White House of Simington, noting that the FCC’s role “has become more critical in the time of a COVID crisis with the majority of Americans considering broadband connectivity essential of their lives … that is why it is so important that we keep this in focus as we look at Commissioners.”
She also chided the Trump Administration for its selection of an individual with lack of experience with the FCC, its statutory responsibilities, and many of the key issues at the agency.
With that, Sen. John Thune asked the Committee to consider Simington’s nomination to be “reported favorably,” and this was seconded by Sen. Roy Blunt.
Then came a Roll Call, which yielded the 14-12 vote. Among those voting no by proxy: Sens. Amy Klobuchar, Brian Schatz, Ed Markey, Tom Udall, Tammy Duckworth and Kyrsten Sinema.
“The motion is agreed to,” Sen. Roger Wicker, the Committee Chair declared.
On October 15, FCC Chairman Ajit Pai revealed that he intended to move forward with a FCC rulemaking to clarify the meaning of Section 230.
It was something Republicans on Capitol Hill were clamoring for, after it became known two of the world’s biggest social media platforms blocked a New York Post article with accusatory claims regarding Democratic presidential candidate Joe Biden’s son, Hunter Biden, and Ukraine.
Literally minutes later, the Senate Committee on Commerce, Science, and Transportation revealed that it will hold a nomination hearing for O’Rielly’s suggested successor — one week after Election Day.
That November 10 hearing came as it became clear that Joe Biden had defeated President Trump, potentially putting Pai’s plan on ice.
With Jessica Rosenworcel being discussed by many as the next FCC Chair, Simington’s arrival on the Commission would pair him with the remaining Republican, Brendan Carr.
For broadcast station owners, the loss of Pai and O’Rielly is a major blow, as both have championed such industry efforts as deregulation, pirate radio cessation enforcement and all-digital AM radio broadcasts on a voluntary basis. The rollout of ATSC 3.0, a big-dollar development for broadcast TV, also came under the Pai Commission.
With Rosenworcel and Starks in new policy leadership roles at the Commission, the Biden White House will get the right to select the next Commissioner — the one taking Pai’s seat.
This puts Senate Republicans in an urgent and perhaps awkward position by either approving Trump’s hand-selected successor to O’Rielly, or leaving it to the Biden Administration to nominate a different Republican Commissioner.
By rule, the Commission must have a minimum of two members of the minority party in power at the White House.
With the Senate Commerce Committee Republican majority recommending full Senate confirmation of Simington, the upper body of Congress would be asked to approve an individual who is taking a rather unusual route to the Commissioner. Simington is presently at the NTIA, and it is not a usual source for FCC rulemakers. But, 2020 has been far from normal, even when it comes to Washington politics.
What sort of background does Simington have? Before joining the NTIA, in June, Simington was a senior counsel for Brightstar, the SoftBank Group-owned wireless distributor. He’s also been an attorney at Kirkland & Ellis, Chapman and Cutler, and started his career in 2011 as an associate at Mayer Brown following his completion of law school at the University of Michigan.
Simington is also an accomplished violinist, with schooling at the Eastman School of Music.
Why Simington? It is said that he had a hand in a controversial White House executive order on social media, which triggered furor among those who called it inappropriate regulation of networks such as Facebook and YouTube. It also protects websites from public comments made that could result in potential libel or slander; RBR.com reviews all comments before publishing, whereas McClatchy Co.-owned daily newspapers do not.
Now that Biden is moving into the White House and Pai is exiting the Commission, Simington’s path to the FCC is far from a speck-free highway. Connecticut Democratic Senator Richard Blumenthal had threatened to put a hold on Simington’s nomination. While that has not yet occurred, his desire to make such a move only puts more clouds over Simington’s future.
On November 24, Blumenthal took to Twitter to chastise Simington for reportedly contacting Fox News during summer in what Politico called “an attempt at ‘engaging’ host Laura Ingraham to support President Trump’s quest to make it easier to sue social media companies like Facebook and Twitter.”
“Any additional support we might be able to obtain could help to get the FCC on board more quickly and thereby ensure a freer, fairer social media landscape going into the elections this fall,” Simington wrote in a June 22 email to a Fox News staffer, months before his nomination by Trump to the FCC. “This is of concern both to the presidency and also down-ballot, and given the emerging role of social media as a replacement for mass media, our democracy will be weakened if we cannot respond to this issue quickly and effectively.”
Blumenthal says this action “demonstrates he was willing to bully the very agency he’s been nominated to join and do the electoral bidding of the Republican party. Simington must explain himself immediately.”
That’s not happened.