Enlarge /. Federal Communications Commission Chairman Ajit Pai and FCC Commissioner Brendan Carr, two of the FCC's three Republicans, speak before a Senate Trade Committee hearing begins on August 16, 2018.
The Republican-controlled US Senate today confirmed a Trump candidate for the Federal Communications Commission and ensured President-elect Joe Biden's FCC was bogged 2-2 on inauguration.
The Senate voted partisan to endorse Nathan Simington, a Trump administration official who helped draft a petition calling on the FCC to simplify the lawsuit against social media companies like Facebook and Twitter. Democrats say he is not qualified for the position.
"During his verification hearing, even the most basic questions about FCC matters seemed to bother Nathan Simington. It is clear that he is completely unqualified to run this agency," Senator Richard Blumenthal (D-Conn.) Wrote on Twitter today.
Shortly after noon, the Senate voted 49:47 to end the debate on Simington's nomination. At around 5 p.m., the Senate confirmed the nomination with 49-46 votes. Simington's nomination was previously promoted to the Senate by 14-12 votes by the Senate Commerce Committee.
Trump nominated Simington to replace Republican Michael O & # 39; Rielly after O & # 39; Rielly refused to support the president's crackdown on social media websites. With Chairman Ajit Pai leaving the commission on January 20, 2021 after Biden takes office, Simington's confirmation will prevent the Biden FCC from having a 2-1 Democratic majority in January. (O & # 39; Rielly should have left the commission at the end of 2020, even if Simington hadn't been confirmed today.)
Biden was supposed to get a 3-2 majority after all, but only after the Senate confirmed whoever nominated Biden for third Democratic place.
GOP's goal is deadlock
Republican senators offered no justification for the approval of Simington, a move clearly aimed at preventing or delaying the Biden FCC from pursuing Democratic Party's goals such as restoring net neutrality rules. FCC Republican Brendan Carr confirmed this motive during an appearance on Fox Business last week and said, "It would be very valuable to get Simington over the finish line to get ahead of the Democratic agenda."
"The only qualification for FCC candidate Nathan Simington is his willingness to defend the president's attacks on the First Amendment and Section 230 of the Communications Decency Act," Senator Mazie Hirono (D-Hawaii) wrote on Twitter today. Section 230 is the law that Trump wants the FCC to reinterpret to restrict the legal protection of social media platforms for moderating user-generated content.
Hirono noted that Simington was campaigning for Fox News to support Trump's Section 230 push, and wrote that Simington's "attempts to recruit Fox News presenters to harass the FCC show he has no place to." to run this agency ".
"I think the purpose of confirming this candidate is to block the commission and undermine the ability of the president-elect to fulfill the mandate that the American people have given him and his administration in the future," Blumenthal said in the Senate today .
Lame-Duck FCC could pass Trump's Section 230 plan
Simington's confirmation enables the FCC to implement Trump's reinterpretation of Section 230 before Biden's inauguration. The FCC still has a 3-2 majority as Simington replaces O & # 39; Rielly, but now all three Republicans are registered supporters of the Trump administration's Section 230 petition.
Carr enthusiastically supported the petition all along, claiming Twitter and Facebook were biased against Trump and Republicans. Pai made his views known in October when he proposed new rules that made it clear that social media companies don't have "special immunity" to their content moderation decisions.
While Congress Democrats called on Pai to "stop work on all partisan, controversial issues immediately" in order to recognize Biden's victory over Trump, Pai made no promises. Berin Szóka, who opposes Trump's push against Section 230 and is a senior contributor to the libertarian think tank TechFreedom, wrote that he believes the Pai-led FCC will "likely" issue a definitive Section 230 order before Biden's inauguration.
"After Twitter and Facebook had the boldness to flag Donald Trump's misinformation about voting and COVID-19, the president passed an executive order for the simple purpose of getting revenge on these social media platforms," Sen. Blumenthal said today . Trump intended "to punish these companies for the slight inconvenience of a fact-checking," he said, adding that "Commissioner O'Rielly recognized the dangers and potential illegality of the President's Executive Order and had the audacity to speak up and do." this to say American public. "
Pai issued a statement following today's Senate vote to congratulate Simington. "Nathan grew up in a rural community and his affirmation ensures that this important perspective will continue to be represented on the commission for years to come as the FCC continues its work to bridge the digital divide," said Pai. "And with his experience at NTIA (National Telecommunications and Information Administration) and in the private sector, Nathan is well positioned to take the first steps."
Biden's FCC chair won't be powerless
A 2-2 FCC would still have a chair as Biden can promote one of the two Democratic commissioners in the White House to the top. That chairman could even put pressure on the Senate to confirm whoever nominates Biden for third Democratic seat on the commission.
"(D) The chairman can effectively close the agency until the Republicans approve a third Democrat," wrote Harold Feld, longtime telecommunications attorney and senior vice president of the Public Knowledge consumer group. "While this sounds like an industry dream, it would quickly become an industry nightmare as the necessary work of the FCC comes to a standstill. Virtually any acquisition by a cable, wireless operator or broadcaster requires approval from the FCC. Unlike antitrust law, this is no deadline for the agency to act. The chairman of a deadlocked FCC can simply freeze all mergers and acquisitions in the sector until the Democrats have a majority. "
The chairman could also "put the FCC on strike", cancel upcoming frequency auctions, and suspend certification for consumer electronics (in the US, no electronic devices of any kind, from smartphones to home computers to microwave ovens, can be sold without certification from the FCC that it won't interfere with wireless communications, "Feld wrote." Such measures would have far-reaching implications for the wireless, electronics and retail industries.
The chairman of a stalled FCC could also take policy action that doesn't require a full commission vote and is "largely unverifiable," Feld wrote. With net neutrality, a Democratic FCC chairman could help turn the tide of a lawsuit to determine whether California can enforce state law that mimics the net neutrality rules that Chairman Pai repealed. The US Department of Justice and ISP lobby groups sued California for blocking state law, with Pais FCC supporting the lawsuit. Even with a 2-2 deadlock, Biden's FCC chairman can "switch sides in litigation, throw his weight on industry and support states' right to pass their own net neutrality laws," Feld wrote.