Posted by Chris Alarie on Wed, 12/09/2020 - 12:07
The Senate confirmed Nathan Simington as a Commissioner on the Federal Communications Commission (FCC). The confirmation vote, which fell along party lines 49-46, was somewhat surprising as Senate Majority Leader Mitch McConnell had not been expected to prioritize it over other procedural moves with the Senate’s limited time remaining before the end of this year’s session.
Simington currently works in the Commerce Department as an official for the National Telecommunications and Information Administration. Senator Richard Blumenathal had tried to stop Simington’s nomination from proceeding through the Commerce Committee, saying of Simington, “He is the wrong person for the FCC right now. He is conflicted, unprepared and unqualified.”
Simington’s confirmation is evidence of the further politicization of the FCC. President Donald Trump initially nominated him as a part of the President’s quixotic and ill-defined quest to reform Section 230 of the Communications Decency Act as a means of enacting revenge on social media companies for what the President perceives to be anti-conservative bias. The President had originally planned to re-nominate current Republican Commissioner Michael O’Rielly to another term on the FCC. But O’Rielly criticized the President’s Section 230 efforts due to concerns that it would conflict with the First Amendment’s free speech protections. Accordingly, Trump declined to re-nominate O’Rielly and instead put forth Simington, who had helped the President craft a controversial executive order relating to the Section 230 issue.
Previous reports had indicated that, while Senator McConnell supported Simington’s nomination, the Majority Leader was unlikely to make his confirmation a priority. This seems to have changed as a result of FCC Chairman Ajit Pai's announcement that he would step down on January 20, 2021, the date of Joe Biden’s inauguration as president.
While the rules ensure that the FCC has a partisan balance of 3-2 in favor of the current President’s party, Pai’s announcement created circumstances in which the FCC would have a 2-1 balance in favor of Democrats from the outset of Biden’s presidency. This would have allowed the Democrats to pursue their FCC priorities immediately without having to wait for the likely arduous process of Senate confirmation for a 3rd FCC Democrat and new FCC Chair. It is possible that Biden could either appoint a new Commissioner to serve as Chair or elevate a Democratic Commissioner to the Chairpersonship, appointing someone else to serve as the 3rd Democratic Commissioner. In either of these circumstances, all changes would need to be approved by a Senate that is expected to have a narrow Republican majority.
With Simington’s confirmation, the Republicans are assured of a 2-2 deadlock until that process is complete, likely stymying the Democrats for a period of several months and potentially making the confirmation of the 3rd Democratic Commissioner and new Chair into a significant leverage point for Republican Senators in their battles against the incoming Biden administration. It also ensures that Biden will not be able to nominate a more moderate Republican to the departing O’Rielly’s spot.
Most analysis on the consequences of this deadlock have focused more on issues like the aforementioned battles over Section 230 and expanding broadband access to rural areas. It is less clear how Simington’s presence on the FCC will affect telemarketing regulations. In general, one can assume that he will ensure that the Commission will be more favorable to business interests and less likely to pursue more heavy-handed regulatory efforts until Biden’s eventual nominee is confirmed.
Simington is expected to take O’Rielly’s place sometime before the end of the year. Technically, the beginning of his five year term as Commissioner is backdated to July 1, 2019, when O’Rielly’s term officially expired. As a result, Simington’s term will last until June 30, 2024.