The Senate confirmed President Donald Trump's nominee Nathan Simington to the Federal Communications Commission Tuesday in a 49-46 party line vote, ensuring the agency will be split down party lines at the start of President-elect Joe Biden's administration.
The vote gained significance after Republican Chairman Ajit Pai announced he would step down from the agency on the day of President-elect Joe Biden's inauguration, following tradition of many agency heads. That move would leave the FCC with one Republican and two Democratic commissioners on the first day of the Biden administration without Trump's nominee.
With Simington, the FCC enters the new administration with a 2-2 deadlock, all but ensuring it would only be able to pass the most bipartisan actions until a third Democrat could be confirmed. That would likely stall any attempts to bring back net neutrality rules or potentially reinterpret a statute that could allow students participating in distance learning to benefit from internet connection discounts traditionally offered to schools and libraries.
Trump nominated Simington after withdrawing his support to re-nominate current Republican FCC Commissioner Michael O'Rielly. The decision came after O'Rielly declined to throw his support behind Trump's executive order targeting social media companies in part by directing the FCC to clarify Section 230 of the Communications Decency Act. Section 230 protects social media platforms from being held liable for their users' posts.
At the time, O'Rielly tweeted that Trump has the right to seek a review of how a law is applied. But he added, "As a conservative, I'm troubled voices are stifled by liberal tech leaders. At same time, I'm extremely dedicated to First Amendment which governs much here."
Pai later said the FCC general counsel determined the agency does have the authority to move forward with rulemaking on the issue, though that effort is likely to stall under the Biden administration.
Simington, in contrast to O'Rielly, appears much more willing to support Trump's desire to rework the application of Section 230. Trump and other Republicans have complained that the law allows tech platforms to get away with stifling conservative viewpoints through their moderation policies and algorithms. The major tech platforms have repeatedly denied taking any discriminatory action against conservatives on their sites.
Simington had a hand in crafting the Trump's executive order targeting the law, as The Verge first reported. Despite that, he declined to recuse himself from matters involving Section 230 at a confirmation hearing before the Senate Commerce Committee, saying he would defer to the agency's ethics office. Sen. Richard Blumenthal, D-Conn., said he'd put a hold on Simington's confirmation and do everything he could to stop it.
At a press conference Monday hosted by civil rights groups including Fight for the Future, Blumethal called Simington "a deeply dangerous nominee" and described his answers to his questions on topics like recusal as "evasive."
"He is the wrong person for the FCC right now. He is conflicted, unprepared and unqualified," Blumenthal said at the press conference. "Simington's sole qualification fact is that he is more than happy to do the president's bidding."
Blumenthal noted at the event and on the Senate floor prior to the vote that the nature of the nomination was unusual, as often nominees to independent agencies are nominated in pairs by a new administration. Independent agencies like the FCC and FTC allow for no more than three commissioners to come from a single party. He warned the vote on Simington would be dangerous to the agency's independence.
Pai congratulated Simington in a statement following the vote.
"Nathan was raised in a rural community, and his confirmation ensures that this important perspective will continue to be represented on the Commission for years to come as the FCC continues its work on bridging the digital divide," he said. "And with his experience at NTIA and in the private sector, Nathan is well-positioned to hit the ground running. I wish him all the best going forward."
The Internet Innovation Alliance, a group representing companies and organizations including AT&T, the American Conservative Union and the Hispanic Technology and Telecommunications Partnership said in a statement, "As a member of the FCC, Simington's wireless industry experience, grasp of 5G and understanding of the entire internet ecosystem will aid the Commission as it continues to craft policies that will help close the digital divide and advance next-generation networks. We look forward to working with Commissioner Simington on these issues, together seeking to improve the internet ecosystem for all Americans."
Advocacy groups expressed disappointment in the confirmation, however.
"Simington's confirmation is a cynical Republican ploy to deadlock the Biden FCC," Matt Wood, general counsel of nonpartisan advocacy group Free Press Action said in a statement. "The whole point is to prevent a duly elected new administration and its appointees from getting to work. That's unacceptable, considering everything that a Biden FCC must do to promote broadband equity, increase media diversity and ensure people can get and stay connected during this pandemic."
"Senate Republicans are spitting in the face of the American public," Evan Greer, deputy director of digital advocacy group Fight for the Future said in a statement. "More than 80% of voters from across the political spectrum opposed the agency's agenda under Ajit Pai. By confirming Simington, they're not 'owning the libs' or 'sticking it to Biden,' they're just hurting our kids, small businesses, and our communities. It's up to us to make sure they regret it. "
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