The Senate voted Tuesday to confirm Republican Nathan Simington to the Federal Communications Commission, potentially hamstringing the Biden administration before it even takes office.
Simington, a senior adviser at the National Telecommunications and Information Administration, was confirmed 49-46 despite fierce opposition from Democrats and digital rights groups.
“Nathan Simington is a deeply dangerous nominee to the FCC,” Sen. Richard Blumenthal (D-Conn.) warned during a virtual event with civil rights groups Monday. “He’s dangerous on the issues: net neutrality, Lifeline, E-Rate, and rural broadband … he is conflicted, unprepared and unqualified.”
Senate Commerce Committee Chairman Roger Wicker (R-Miss.) praised Simington for his “light-touch regulatory approach” after the vote.
“Nathan Simington’s confirmation will help ensure a balanced FCC and continued light-touch regulatory approach that has kept the internet free and open for all Americans,” Wicker said.
President Trump nominated Simington after pulling the renomination of Republican Commissioner Mike O’Rielly in August.
The swap came shortly after O’Rielly expressed opposition to Trump’s executive order targeting Section 230 of the Communications Decency Act, which gives online platforms liability protection for content posted by third parties and allows them to do good faith content moderation.
Simington played a role in crafting the NTIA petition required by the order, he confirmed to senators during a committee hearing on his nomination.
He also sought to enlist the help of Fox News host Laura Ingraham to support the petition, emails obtained by the Politico last month show.
“Unfortunately, Nathan Simington’s only qualification for this job is following Donald Trump’s orders to turn the FCC into government speech police,” Sen. Ron Wyden (D-Ore.), one of the original authors of Section 230, said during the same event Monday.
Blumenthal has pressed Simington to recuse himself from any potential matters involving the NTIA petition. In his hearing and written follow-ups, the nominee said he would seek counsel on the issue.
FCC chair Ajit Pai could technically force the issue on Section 230 before he steps down on Jan. 20 while the agency maintains a Republican majority. Fellow Republican commissioner Brendan Carr is an ardent supporter of reinterpreting Section 230 to make internet platforms liable for content they host.
While Pai did not appear to be enthusiastic about the initial executive order, one industry source told The Hill that he is facing immense pressure from the administration to move on the petition before leaving the agency.
The FCC’s authority to reinterpret Section 230 is questionable, and any attempt to do so would undoubtedly be met with legal challenges.
Simington’s confirmation will also leave the commission at a 2-2 partisan deadlock when Pai steps down.
Unless Democrats sweep the Senate races in Georgia next month, Republicans could block President-elect Biden from breaking the tie.
A tied committee would significantly limit the agency’s ability to carry out any significant changes, most notably by likely blocking any attempt to reinstate Obama-era net neutrality rules which allowed the FCC to go after service providers that discriminate against certain web traffic.
Critics have also warned that a deadlocked FCC could hurt efforts to expand connectivity, an issue which the coronavirus pandemic has made even more important.
“In the midst of a pandemic, what we need is an FCC Commissioner who will champion broadband and connectivity for the millions of Americans who don’t have internet access, including 16 million students,” Blumenthal said Monday.