On Monday afternoon, a most unusual occurrence transpired. President Trump withdrew the nomination of Michael O’Rielly to a second five-year term as a Commissioner at the FCC.
While no specific reason was stated in the notice from the White House, it is largely believed that the withdrawal of O’Rielly’s nomination is tied to his decision to approve an application from Ligado to facilitate 5G and “Internet of Things” services.
But, it appears comments on social media the Fairness Doctrine made July 29 during a virtual luncheon address are also at play.
As Washington tries to understand the why behind the renomination withdrawal, media industry executives are asking what happens next for O’Rielly. There’s no easy answer.
By law, O’Rielly, who was appointed by President Obama as a Republican Commissioner to complete the term of departing Commissioner Robert McDowell, can serve until the next Congress.
This mirrors what transpired when former FCC Chairman Tom Wheeler departed following the inauguration of Donald Trump as U.S. President. It also follows what happened to Democratic Commissioner Jessica Rosenworcel in January 2017.
What path O’Rielly is placed on could mirror either one of those two FCC leaders.
“I don’t know what he’s going to do next,” says Peter Tannenwald, an attorney with Fletcher Heald & Hildreth. “I don’t think he can just turn around and change his position on the NTIA vote. That would be intellectually dishonest.”
But, that’s exactly what many in Washington believe is one of the catalysts for Trump’s renomination withdrawal, which came following a hold on O’Rielly’s renomination placed by Republican Senator James Inhofe of Oklahoma. Inhofe placed the hold on O’Rielly squarely because of his affirmative vote granting an application from Ligado to facilitate 5G and “Internet of Things” services.
It was a unanimous decision that saw the National Telecommunications and Information Administration on May 22 formally petition the FCC to overturn. The request from the NTIA, it said, was made “on behalf of the executive branch, particularly the Department of Defense and the Department of Transportation.”
At issue with the DoD is its claim that the Commission’s Order and Authorization allows Ligado to use L-band spectrum that is alongside the Global Positioning System. In the department’s view, a terrestrial broadband network in that band of spectrum would create interfere with GPS signals.
But, it seems that another issue has arisen that puts O’Rielly at odds with the White House. According to Bloomberg Law, it stems from a July 29 virtual keynote delivered to The Media Institute by O’Rielly.
In prepared remarks offered to attendees of the event staged by the institute, a think tank “working for a strong First Amendment and Sound Communications Policy,” O’Rielly closed a wide-ranging discussion with a critique that, “to be clear,” was “not in any way directed toward President Trump or those in the White House, who are fully within their rights to call for the review of any federal statute’s application, the result of which would be subject to applicable statutory and constitutional guardrails.”
Rather, O’Rielly said, “I am very troubled by certain opportunists elsewhere who claim to be the First Amendment’s biggest heroes but only come to its defense when convenient and constantly shift its meaning to fit their current political objectives. The inconsistencies and contradictions presented by such false prophets would make James Madison’s head spin, were he alive to witness them.”
Then, as O’Rielly delivered his final paragraph from his prepared remarks, he uttered the words that likely raised the ire of those inside 1600 Pennsylvania Ave., N.W.
“The First Amendment protects us from limits on speech imposed by the government—not private actors—and we should all reject demands, in the name of the First Amendment, for private actors to curate or publish speech in a certain way,” O’Rielly said. “Like it or not, the First Amendment’s protections apply to corporate entities, especially when they engage in editorial decision making. I shudder to think of a day in which the Fairness Doctrine could be reincarnated for the Internet, especially at the ironic behest of so-called free speech ‘defenders.’ It is time to stop allowing purveyors of First Amendment gibberish to
claim they support more speech, when their actions make clear that they would actually curtail it through government action. These individuals demean and denigrate the values of our Constitution and must be held accountable for their doublespeak and dishonesty.”
With both Rosenworcel and fellow Democrat Geoffrey Starks against any effort to weaken any protections against such entities as Facebook and Twitter, the White House has little chance of weakening free speech protections for these and other online entities.
Still, FCC Chairman Ajit Pai on Monday issued a statement regarding a Petition for Rulemaking filed last week by the Department of Commerce pertaining to Section 230 of the Communications Act of 1996.
This section states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” It provides immunity from civil liabilities for information service providers that remove or restrict content from their services they deem “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”
As O’Rielly is a strict First Amendment advocate, he isn’t bound to change that rule dating to the Clinton administration. That said, the FCC’s Consumer and Governmental Affairs Bureau will invite public input on the Commerce Department rulemaking petition, Pai said.
“Longstanding rules require the agency to put such petitions out for public comment ‘promptly,’ and we will follow that requirement here,” said Pai, who added, “I strongly disagree with those who demand that we ignore the law and deny the public and all stakeholders the opportunity to weigh in on this important issue. We should welcome vigorous debate—not foreclose it. The American people deserve to have a say, and we will give them that chance. Their feedback over the next 45 days will help us as we carefully review this petition.”
Tannenbaum agrees with the Bloomberg Law report’s assertion that the renomination withdrawal is very much tied to O’Rielly’s stance on the First Amendment and Fairness Doctrine.
THE FUTURE ROAD FOR O’RIELLY
With a stalemate in a Capitol Hill chess game, Tannenbaum — like others in Washington who declined to speak on the record to RBR+TVBR — envisions several scenarios for O’Rielly.
First, Trump could nominate someone to replace O’Rielly. But, Tannenbaum says, “there is a pretty good chance the Senate will not vote on another nominee.”
Why? “A few senators are starting to get impatient with Trump on some major issues and they may not vote to confirm on anyone other than O’Rielly,” Tannenbaum believes.
That leaves O’Rielly’s fate up to the voter, and their choice for U.S. President in the November election.
If Trump wins, O’Rielly could exit come inauguration day 2021, setting the stage for a new entrant as a Commissioner. It also means the Republicans would no longer rule the FCC, and a 2-2 stalemate would exist.
Should former Vice President Joe Biden be elected U.S. President, Trump could move to renominate O’Rielly anew, if only to preserve three Republican votes. For broadcast media, this would be highly welcomed, given O’Rielly’s influence on increased firepower against pirate radio operators and desire to further “modernize” the FCC’s local ownership rules through more deregulation.
But, the renomination of O’Rielly by a Biden Commission could only come if there’s another vacancy on the FCC come late January 2021.
Paging Ajit Pai.
Democrats, led by House Energy & Commerce Committee Chairman Frank Pallone Jr. and Subcommittee on Communications and Technology Chairman Mike Doyle, will most certainly hold sway with a Biden White House in seeking a new head of the FCC.
With so many scenarios that could play out, one thing is for certain: the Congressional deference on FCC commissioners has faded under the current administration.
When all is said and done, the fate of O’Rielly could come down to the man himself.
“You have to assume that O’Rielly really wants the job and doesn’t want to jump off the FCC,” Tannenbaum says. “So, he’s likely going to do what he needs to say to get Trump to change his mind.”
But, if that means saying something that O’Rielly simply can’t utter — such as switching his Ligado voice — the stalemate is on.
And, the nation will be watching in a chess match orchestrated by the Commander-in-Chief.