FCC DEADLOCK —
Senate rushes to confirm Trump FCC nominee in order to hinder Biden admin
Democrats fight nomination, hoping for 2-1 FCC majority when Biden is sworn in.
JON BRODKIN - 12/2/2020 ARS TECHNICA
Enlarge / Sen. Richard Blumenthal (D-Conn.) at an FCC oversight hearing held by the Senate Commerce Committee on June 24, 2020.
Getty Images | Washington Post
Senate Republicans are rushing to confirm President Donald Trump's nominee to the Federal Communications Commission in order to create a 2-2 deadlock for the Biden FCC.
In a 14-12 party-line vote today, the Senate Commerce Committee approved Trump's nomination of Nathan Simington. If Simington is confirmed by the full Senate, the FCC would be deadlocked at two Republicans and two Democrats after the upcoming departures of Chairman Ajit Pai and Michael O'Rielly. To get a 3-2 majority on the FCC, President-elect Joe Biden would have to nominate a Democrat after taking office and hope that the Senate confirms the nomination.
Senate Democrats said today that Simington is not qualified to be an FCC commissioner and that he misrepresented his work in the Trump administration during the committee's confirmation process.
"I will continue this fight on the Senate floor," Sen. Richard Blumenthal (D-Conn.) said. "I will continue to do everything I can to hold this nomination and to oppose it because I think Mr. Simington lacks the qualifications and independence that are required of an FCC commissioner."
Approving Simington would create "a deadlock at the commission in the middle of a national crisis," Blumenthal also said. "Perhaps the telecommunications and media companies want that kind of deadlock. They may wish for an FCC that is absent and neutralized. But we face right now a national emergency, both a pandemic and economic crisis that requires this independent agency to be more active than ever in protecting consumers and our telecommunications. The fact is, Mr. Simington has failed to provide this committee with an assurance that he will have the candor and independence that is required."
Nominee backs Trump “assault on First Amendment”
No Republican senators offered any justification for confirming Simington at today's meeting, which covered three nominations, including Simington's, and lasted less than 15 minutes. Blumenthal and Sen. Maria Cantwell (D-Wash.) pointed out that Simington was nominated only after Trump pulled the renomination of O'Rielly, who did not support Trump's attempted crackdown on Twitter and Facebook for alleged anti-conservative bias.Advertisement
"It would seem that Mr. Simington was nominated for just one purpose: to support the president's indefensible assault on the First Amendment," Blumenthal said. "It appears in fact to be his sole qualification—his reason for replacing Commissioner O'Rielly."
As Cantwell said, O'Rielly's "nomination was reportedly pulled as retaliation for Mr. O'Rielly speaking his mind about problems with the FCC trying to issue rules related to section 230 at the president's behest." The process "raises real questions about why the White House chose Mr. Simington, particularly given his lack of experience with the FCC, its statutory responsibilities, and many of the key issues at the agency," she said.
Simington is a senior adviser at the National Telecommunications and Information Administration (NTIA), which petitioned the FCC for a new interpretation of Section 230 of the Communications Decency Act to limit social media platforms' legal protections for hosting third-party content when platforms take down or modify content they consider objectionable. Simington played a role in drafting and promoting that plan.
Blumenthal said he asked Simington to recuse himself from the FCC's Section 230 proceeding, but Simington has not committed to do so.
Simington lobbied Fox News
Newly revealed emails showed that Simington "reached out to Fox News this summer in an attempt at 'engaging' host Laura Ingraham to support President Donald Trump's quest to make it easier to sue social media companies like Facebook and Twitter," Politico reported last week. "Simington... wrote that the popular Fox News host could help sway the FCC to act on Trump's proposal before Election Day."
Blumenthal and Cantwell said the emails proved that Simington downplayed his role in the Trump administration's Section 230 proposal. Simington reportedly claimed during his nomination hearing that he had only a "minor role" in the NTIA's petition to the FCC.
"We have learned he sought to enlist Fox News to 'help get the FCC on board more quickly and thereby ensure a freer and fair social media landscape going into the elections this fall,'" Blumenthal said today, quoting from Simington's email to a Fox News staffer. "He then described restraining social media companies as a concern both to the presidency and down ballot. He failed to disclose this to the committee, he failed to tell us about it, Mr. Chairman. So I asked Mr. Simington again and received a nonanswer."Advertisement
Nominee “misrepresented his involvement”
Blumenthal also said that Simington's answers to questions from both Democratic and Republican senators were "inadequate, incomplete, and evasive."
Cantwell said there are "real questions... about Mr. Simington's candor with the committee during this confirmation process. We now know based on his own emails that he misrepresented his involvement in pushing the FCC to do the president's bidding on Section 230."
"The FCC and NTIA simply cannot be permitted to be an instrument of political bullying," Blumenthal said. "It is an assault on the integrity and independence of the FCC, and this committee must take this threat seriously."
FCC nominations have in some cases been approved in pairs, with one Democrat and one Republican joining the commission simultaneously. That's what happened in August 2017 when Republican Brendan Carr and Democrat Jessica Rosenworcel were confirmed on the same day. Before that, Rosenworcel had to leave the commission for about seven months because the Republican-led Senate refused to reconfirm her, a move that gave Trump a 2-1 FCC majority when he took office.
"She had to leave the commission to ensure that President Trump could appoint an accompanying [Republican] FCC nominee, and we should hold this nomination as well," Blumenthal said.
“Zero qualifications”
The sole purpose of Simington's nomination is "obstructing the incoming Biden administration and its FCC appointees," said Matt Wood, VP of policy and general counsel of media-advocacy group Free Press.
"Nathan Simington has zero qualifications for this position," Wood said. "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."
Fight for the Future, an advocacy group, warned that Simington's nomination is an attempt to prevent the restoration of net neutrality rules and urged people to contact their senators to oppose it.
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Democrats fight nomination, hoping for 2-1 FCC majority when Biden is sworn in.
JON BRODKIN - 12/2/2020 ARS TECHNICA
Enlarge / Sen. Richard Blumenthal (D-Conn.) at an FCC oversight hearing held by the Senate Commerce Committee on June 24, 2020.
Getty Images | Washington Post
Senate Republicans are rushing to confirm President Donald Trump's nominee to the Federal Communications Commission in order to create a 2-2 deadlock for the Biden FCC.
In a 14-12 party-line vote today, the Senate Commerce Committee approved Trump's nomination of Nathan Simington. If Simington is confirmed by the full Senate, the FCC would be deadlocked at two Republicans and two Democrats after the upcoming departures of Chairman Ajit Pai and Michael O'Rielly. To get a 3-2 majority on the FCC, President-elect Joe Biden would have to nominate a Democrat after taking office and hope that the Senate confirms the nomination.
Senate Democrats said today that Simington is not qualified to be an FCC commissioner and that he misrepresented his work in the Trump administration during the committee's confirmation process.
"I will continue this fight on the Senate floor," Sen. Richard Blumenthal (D-Conn.) said. "I will continue to do everything I can to hold this nomination and to oppose it because I think Mr. Simington lacks the qualifications and independence that are required of an FCC commissioner."
Approving Simington would create "a deadlock at the commission in the middle of a national crisis," Blumenthal also said. "Perhaps the telecommunications and media companies want that kind of deadlock. They may wish for an FCC that is absent and neutralized. But we face right now a national emergency, both a pandemic and economic crisis that requires this independent agency to be more active than ever in protecting consumers and our telecommunications. The fact is, Mr. Simington has failed to provide this committee with an assurance that he will have the candor and independence that is required."
Nominee backs Trump “assault on First Amendment”
No Republican senators offered any justification for confirming Simington at today's meeting, which covered three nominations, including Simington's, and lasted less than 15 minutes. Blumenthal and Sen. Maria Cantwell (D-Wash.) pointed out that Simington was nominated only after Trump pulled the renomination of O'Rielly, who did not support Trump's attempted crackdown on Twitter and Facebook for alleged anti-conservative bias.Advertisement
"It would seem that Mr. Simington was nominated for just one purpose: to support the president's indefensible assault on the First Amendment," Blumenthal said. "It appears in fact to be his sole qualification—his reason for replacing Commissioner O'Rielly."
As Cantwell said, O'Rielly's "nomination was reportedly pulled as retaliation for Mr. O'Rielly speaking his mind about problems with the FCC trying to issue rules related to section 230 at the president's behest." The process "raises real questions about why the White House chose Mr. Simington, particularly given his lack of experience with the FCC, its statutory responsibilities, and many of the key issues at the agency," she said.
Simington is a senior adviser at the National Telecommunications and Information Administration (NTIA), which petitioned the FCC for a new interpretation of Section 230 of the Communications Decency Act to limit social media platforms' legal protections for hosting third-party content when platforms take down or modify content they consider objectionable. Simington played a role in drafting and promoting that plan.
Blumenthal said he asked Simington to recuse himself from the FCC's Section 230 proceeding, but Simington has not committed to do so.
Simington lobbied Fox News
Newly revealed emails showed that Simington "reached out to Fox News this summer in an attempt at 'engaging' host Laura Ingraham to support President Donald Trump's quest to make it easier to sue social media companies like Facebook and Twitter," Politico reported last week. "Simington... wrote that the popular Fox News host could help sway the FCC to act on Trump's proposal before Election Day."
Blumenthal and Cantwell said the emails proved that Simington downplayed his role in the Trump administration's Section 230 proposal. Simington reportedly claimed during his nomination hearing that he had only a "minor role" in the NTIA's petition to the FCC.
"We have learned he sought to enlist Fox News to 'help get the FCC on board more quickly and thereby ensure a freer and fair social media landscape going into the elections this fall,'" Blumenthal said today, quoting from Simington's email to a Fox News staffer. "He then described restraining social media companies as a concern both to the presidency and down ballot. He failed to disclose this to the committee, he failed to tell us about it, Mr. Chairman. So I asked Mr. Simington again and received a nonanswer."Advertisement
Nominee “misrepresented his involvement”
Blumenthal also said that Simington's answers to questions from both Democratic and Republican senators were "inadequate, incomplete, and evasive."
Cantwell said there are "real questions... about Mr. Simington's candor with the committee during this confirmation process. We now know based on his own emails that he misrepresented his involvement in pushing the FCC to do the president's bidding on Section 230."
"The FCC and NTIA simply cannot be permitted to be an instrument of political bullying," Blumenthal said. "It is an assault on the integrity and independence of the FCC, and this committee must take this threat seriously."
FCC nominations have in some cases been approved in pairs, with one Democrat and one Republican joining the commission simultaneously. That's what happened in August 2017 when Republican Brendan Carr and Democrat Jessica Rosenworcel were confirmed on the same day. Before that, Rosenworcel had to leave the commission for about seven months because the Republican-led Senate refused to reconfirm her, a move that gave Trump a 2-1 FCC majority when he took office.
"She had to leave the commission to ensure that President Trump could appoint an accompanying [Republican] FCC nominee, and we should hold this nomination as well," Blumenthal said.
“Zero qualifications”
The sole purpose of Simington's nomination is "obstructing the incoming Biden administration and its FCC appointees," said Matt Wood, VP of policy and general counsel of media-advocacy group Free Press.
"Nathan Simington has zero qualifications for this position," Wood said. "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."
Fight for the Future, an advocacy group, warned that Simington's nomination is an attempt to prevent the restoration of net neutrality rules and urged people to contact their senators to oppose it.
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Ajit Pai announces departure from FCC after four-year deregulatory blitz
Democrats may gain 2-1 FCC majority Jan. 20, with Rosenworcel as possible chair.
JON BRODKIN - 11/30/2020 ARS TECHNICA
Enlarge / FCC Chairman Ajit Pai speaking at a press conference on October 1, 2018, in Washington, DC.
Getty Images | Mark Wilson
Federal Communications Commission Chairman Ajit Pai announced today that he will leave the FCC on January 20, 2021, the day Joe Biden will be inaugurated as president. In his four years as FCC chief, Pai deregulated the broadband industry, eliminated net neutrality rules, and justified his deregulatory agenda by using faulty data and taking credit for broadband deployments that were planned before he became chairman.
Pai called being chairman "the honor of a lifetime."
"I am grateful to President Trump for giving me the opportunity to lead the agency in 2017, to President Obama for appointing me as a Commissioner in 2012, and to Senate Majority Leader McConnell and the Senate for twice confirming me. To be the first Asian-American to chair the FCC has been a particular privilege. As I often say: only in America," Pai said in his statement today.
FURTHER READING Ajit Pai touted false broadband data despite clear signs it wasn’t accurate
As per tradition in which presidents nominate commissioners from both parties, Obama nominated Pai in 2012 at the request of Senate Republicans. When Democrats were in power, Pai fought against the Obama-era FCC's decisions to adopt consumer-protection rules such as net neutrality and broadband-privacy regulations. When Trump became president and promoted Pai to the chairmanship, he set out to overturn some of the biggest decisions made by his predecessor, Democrat Tom Wheeler.
Democrats have path to 2-1 majority in January
Pai's departure from the FCC would give the Biden administration a 2-1 Democratic majority immediately upon the new president's inauguration. The FCC is currently 3-2 in Republicans' favor, but Republican Michael O'Rielly is leaving at the end of 2020 because Trump pulled O'Rielly's renomination. Trump's choice to replace O'Rielly has not been confirmed by the Senate.
It's likely that Biden and the Senate will work out a deal to add one Democrat and one Republican to fill the commission's two empty seats sometime in 2021, eventually giving Democrats a 3-2 majority. But a Democratic-majority FCC could get moving on restoring net neutrality rules and other regulatory matters with a three-member group consisting of Democrats Jessica Rosenworcel and Geoffrey Starks, and Republican Brendan Carr.
Rosenworcel, who has been an FCC commissioner since 2012 and is widely respected by lawmakers and consumer advocates, could be promoted to FCC chair by Biden on either an interim or permanent basis. Starks has been on the FCC less than two years and is not seen as a leading candidate for the chair spot. If Biden doesn't want to make either Rosenworcel or Starks the chair, he could bring in a new Democrat for the role as Obama did with Wheeler in 2013. One possible chair candidate is former commissioner Mignon Clyburn, who has already been appointed to a Biden transition team that will review the FCC.
Social-media crackdown likely dead
Biden's election victory likely spelled doom for Trump's plan to impose a crackdown on social-media companies like Twitter and Facebook, which have been trying to counter Trump's attempts to spread misinformation on their platforms. A few weeks before the election, Pai announced a proposal to implement Trump's request, which would limit legal protections for social media websites that block or modify content posted by users.
After the election, Congressional Democrats called on Pai to "immediately stop work on all partisan, controversial items" during the presidential transition period. Pai did not immediately respond to that request, and in today's statement Pai did not say anything about policy plans for the remainder of his term. Pai also didn't say anything about his post-FCC plans; he was a Verizon lawyer from 2001 to 2003, and then held several government positions before joining the FCC.
Democrats' upcoming 2-1 majority was made possible by Trump's decision to pull O'Rielly's renomination, which came shortly after O'Rielly refused to back the social-media crackdown. If Trump hadn't pulled the renomination, the Senate could have voted to give O'Rielly another term, deadlocking the FCC at 2-2 in the early part of the Biden administration.
There is still a chance for a 2-2 deadlock if the Republican-controlled Senate confirms Nathan Simington, Trump's pick to replace O'Rielly.
Pai helped telecoms “at the expense of the public”
"Unfortunately, Chairman Pai has succeeded in many of his efforts to promote the interests of large telecommunications, broadcasting, and cable companies at the expense of smaller competitors and, especially, the public," Benton Institute Senior Counselor Andrew Schwartzman said in a statement today. "We have less competition and higher prices as a result of these policies, some of which may still be overturned in the courts."
Pai's court losses included one that overturned his attempt to take broadband subsidies away from tribal residents and another that overturned his attempt to kill environmental and historic-preservation reviews of 5G small cells. Though Pai's repeal of net neutrality rules was upheld in court, judges overturned Pai's related decision to preempt state-level net neutrality laws. Pai won a case allowing the FCC to preempt local fees and regulations imposed on wireless carriers deploying 5G networks.
In his statement today, Pai said the FCC has "delivered for the American people over the past four years: closing the digital divide; promoting innovation and competition, from 5G on the ground to broadband from space; protecting consumers; and advancing public safety. And this FCC has not shied away from making tough choices. As a result, our nation's communications networks are now faster, stronger, and more widely deployed than ever before." O'Rielly issued a statement applauding Pai for deregulating the broadband industry and for moves that "open[ed] up more spectrum bands for commercial use, and expand[ed] broadband access to unserved Americans."
Rosenworcel, who consistently opposed Pai's deregulatory moves and criticized the FCC majority for not doing more to help Americans access broadband during the pandemic, issued a statement about Pai's departure today. "While we did not always agree on policy matters, I always valued our shared commitment to public service," Rosenworcel said. "Serving the American people is a tremendous honor and I wish him the best in the future."
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