Senate Republican leaders are eyeing a floor vote as soon as next week to confirm FCC nominee Nathan Simington, setting up what’s likely to be a partisan showdown over the prospect of a 2-2 commission deadlock at the start of President-elect Joe Biden's incoming administration. The Commerce Committee advanced Simington Wednesday, as expected (see 2012010064), on a 14-12 party-line vote. Senate Democrats are already watching the potential implications for Biden’s pick for the party’s third FCC seat, when Chairman Ajit Pai leaves Jan. 20 (see 2011300032).
Section 230
The Senate Commerce Committee appeared on track before its Wednesday meeting to advance FCC nominee Nathan Simington’s confirmation to the full chamber. That's despite continued uncertainty about whether panel member Dan Sullivan of Alaska will join other Republicans in backing the nominee. Opponents of Simington’s confirmation claim President Donald Trump picked him to displace Commissioner Mike O’Rielly because the nominee supports the push for a rulemaking on its Communications Decency Act Section 230 interpretation (see 2011100070).
Expect the FCC to allow its Communications Decency Act Section 230 rulemaking proceeding to stagnate through the transition to President-elect Joe Biden's administration, experts said in interviews. It would be unwise to move forward without a clear majority and could create unnecessary work for staff, they said.
The Senate Commerce Committee plans to vote Dec. 2 on advancing confirmation of FCC nominee Nathan Simington to the full chamber, as expected (see 2011180064). The committee’s meeting, which will also consider Assistant Secretary of Commerce nominee Daniel Huff and NASA Chief Financial Officer nominee Greg Autry, begins at 10 a.m. in 325 Russell. Simington’s responses to senators’ written questions to follow up on his confirmation hearing earlier this month are supposed to be due Dec. 8 (see 2011100070), nearly a week after the scheduled vote. Also Tuesday, Senate Commerce member Richard Blumenthal, D-Conn., tweeted that Simington “must explain himself immediately” after media reports about emails that indicate he played a far larger role than claimed in shaping NTIA’s petition to the commission seeking a rulemaking on its interpretation of Communications Decency Act Section 230 (see 2007270070). Simington in June sought to pitch Fox News’ Laura Ingraham on pushing the FCC to grant NTIA’s petition. Now-acting NTIA Administrator Adam Candeub described Simington and Carolyn Roddy, both NTIA senior advisers, as being “instrumental in drafting” the petition. President Donald Trump’s administration at one point considered naming Roddy to the FCC seat currently held by Commissioner Mike O’Rielly, before naming Simington (see 2008130056). The emails show Simington was “an active and eager soldier in” Trump’s “attempted assault on the First Amendment” via the bid for FCC intervention on Section 230, Blumenthal said. Simington “was willing to bully the very agency he’s been nominated to join in order to do the electoral bidding of the Republican party on the taxpayer dime.” Blumenthal, who already threatened to place a hold on Simington if Senate Commerce advances his confirmation, wants the nominee to “explain himself" in his responses to follow-up questions. “I certainly hope” Simington “will be more forthcoming in his written responses than he was during” that hearing, Blumenthal said. Simington said during that panel that he played a “minor role” in work on NTIA’s Section 230 petition and wouldn’t commit to recusing himself from the FCC proceeding. Simington, NTIA and the White House didn’t comment now. Concerns about FCC independence amid the nomination “are real and important,” Electronic Frontier Foundation Senior Legislative Counsel Ernesto Falcon said Monday: The Senate “should not confirm” Simington “without asking some crucial questions about whether and how he will help ensure that the FCC does the public interest job.”
Amicus briefs Monday supporting the FCC’s Supreme Court appeal of the 3rd U.S. Court of Appeals' Prometheus IV decision focused on the impact to the broadcast industry, judicial deference and Section 230 of the Communications Decency Act (see 2011170057). Amici supporting the 3rd Circuit are due Dec. 23, a week after the date for the brief from the public interest group winners from Prometheus. “Local media ownership rules must reflect the realities of the modern media marketplace,” filed network affiliate groups for Fox, CBS, ABC and NBC: “Television broadcasters cannot maintain healthy, economically viable businesses in that hyper-competitive marketplace if a single panel of the Third Circuit is allowed to continue to unfairly hamstring local journalism.” Gray Television said the 3rd Circuit’s ruling “harms small and midsized communities around the nation by depriving them of the benefits of the FCC’s modernized rules.” The court “stymied the Commission’s efforts to modernize its media ownership rules as directed by Congress,” said The Phoenix Center. “Regardless of where this Court may draw the precise line between overly deferential and unduly strict judicial review of agency actions, the Third Circuit’s decision in this case was inappropriate.” The ruling runs afoul of the First and Fifth amendments, said the Southeastern Legal Foundation. “Give the public interest standard its appropriate, narrower meaning.” TechFreedom said SCOTUS should reverse the court because the ruling hurts the system of courts deferring to agencies. When courts don’t defer to valid agency interpretations of the law, “the resulting regulatory gridlock strengthens the arguments of those judges, scholars, and experts who favor allowing less delegation by Congress and less deference to agencies,” TechFreedom said. The Americans for Prosperity Foundation argued the 3rd Circuit overreached by not following the statute, but also that FCC calls for deference are “misguided.” AFPF cited the pending FCC action on Section 230 as an example of the agency’s “problematic” interaction with judicial deference. “While the proper interpretation of Section 230 is beyond the scope of this case, AFPF wishes to alert this Court to potential collision course the FCC may be on with the U.S. Constitution and separation of powers.”
The three Republicans vying to succeed House Commerce Committee ranking member Greg Walden of Oregon told us they intend to largely maintain his approach to telecom policymaking during the next Congress, which is expected to include more debate on net neutrality. Walden announced his retirement plans last year, sparking debate about Communications Subcommittee Republicans’ future path (see 1911260048).
Communications Decency Act Section 230 needs to be updated, and one gap is the lack of transparency about content moderation decisions and algorithms, Facebook CEO Mark Zuckerberg and Twitter CEO Jack Dorsey told the Senate Judiciary Committee Tuesday. Chairman Lindsey Graham, R-S.C., told us he wants to treat the addictive nature of social media apps, particularly with young people, as a public health issue. He likened Big Tech to Big Tobacco.
Social media companies need guidance on moderating content, Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., told us in response to questions about Tuesday’s hearing with Facebook CEO Mark Zuckerberg and Twitter CEO Jack Dorsey. Graham’s Earn It Act (S-3398), co-led by Sen. Richard Blumenthal, D-Conn., would establish a commission led by the attorney general to develop voluntary best practices for social media companies (see 2008050039).
Some FTC staffers are expecting Joe Simons to step down as chairman on Inauguration Day, an agency aide told us. An industry official said Simons is “looking to step down before the end of the year.” He recently told senior staff it could be as early as Thanksgiving, but he wants to vote out the agency’s antitrust case against Facebook before he leaves office, the industry official said.
Incompas CEO Chip Pickering is hopeful this Congress enacts FY 2021 funding and a COVID-19 aid bill, despite partisan rancor. Group officials told a Thursday webinar they’re monitoring whether the Senate confirms FCC nominee Nathan Simington, plus the impact of a change to a majority-Democrat commission after President-elect Joe Biden’s inauguration.