FCC - White House Withdraws O’Rielly Renomination

Updated: Sep 17

FCC Commissioner

UPDATE September 15, 2020

President Donald J. Trump Announces Intent to Nominate and Appoint Individuals to Key Administration Posts

Nathan A. Simington, of Virginia, to be a Member of the Federal Communications Commission.

Nathan A. Simington is currently a Senior Advisor in the National Telecommunications and Information Administration (NTIA) specializing in network and telecommunications policy. Among his many responsibilities across the telecommunications industry, he works on 5G security and secure supply chains, the American Broadband Initiative, and is NTIA’s representative to the Government Advisory Committee of the Internet Corporation for Assigned Names and Numbers.

Prior to his appointment at NTIA, Mr. Simington was Senior Counsel to Brightstar Corporation, a leading international company in the wireless industry.  In this role, he negotiated deals with companies across the spectrum of the telecommunications and internet industry, including most of the world’s leading wireless carriers. As the head lawyer on the advanced mobility products team, he spearheaded numerous international transactions in the devices, towers and services fields and forged strong relationships with leading telecom equipment manufacturers.  Prior to his career with Brightstar, Mr. Simington was an attorney in private practice with prominent national and international law firms.

Mr. Simington was also a Presser Fellow in Bucharest in 2005. He earned his J.D. from the University of Michigan Law School, two Masters Degrees from the University of Rochester, and his Bachelor’s Degree from Lawrence University. Originally from Saskatoon, Canada, he became an American citizen in 2017. He currently lives with his wife and three children in McLean, Virginia.


UPDATE August 8, 2020

Trump Expected to Nominate NTIA Adviser as O’Rielly’s Replacement

President Trump is expected to nominate National Telecommunications and Information Administration senior adviser Carolyn Roddy to fill the seat currently occupied by FCC Commissioner Mike O’Rielly, whose renomination for another term was withdrawn this week by Mr. Trump, several sources told TR Daily today.

However, getting her nomination through the Senate before the end of the current session of Congress would be a tough task, noted sources who added that the situation would likely be made more difficult because of the support that Mr. O’Rielly has among Republican senators.

Commissioner O’Rielly’s second term expired on June 30, 2019. By statute, if he is not confirmed to another term, he is allowed to continue serving until the earlier of the end of the current legislative session or the confirmation of a successor.

Sources have said that Mr. Trump withdrew Mr. O’Rielly’s nomination because of comments that Mr. O’Rielly made concerning the section 230 Communications Decency Act executive order that White House officials saw as critical (TR Daily, Aug. 3). The remarks discussed the importance of the First Amendment.

Ms. Roddy started at NTIA in early June as a senior adviser in the office of the NTIA administrator, a position that is vacant. She works on broadband, spectrum, and international issues.

She also was a member of the Trump transition FCC team following the 2016 election (TR Daily, Jan. 12, 2017). Her background also includes working as an attorney at her own firm, Carolyn Tatum Roddy P.C., in the Atlanta area; director-regulatory affairs for the Satellite Industry Association; counsel for Troutman Sanders LLP; regulatory counsel in the Southeast for Sprint Corp. (now part of T-Mobile US, Inc.); an FCC attorney; and legislative director and chief aide to former Rep. Newt Gingrich (R., Ga.) before he was the House speaker. She earned a bachelor’s degree in journalism and a law degree from the University of Georgia.

Some sources said that they had not heard that Ms. Roddy would be nominated, with several saying speculation had touched on a number of possible candidates, including current Hill staffers or someone who works in the White House. But various observers agreed that it would be difficult to get any nomination through this year.

“There are so few legislative days left on the Senate’s calendar, even factoring in a lame-duck session, it would be very difficult to select a nominee, conduct the FBI background check, politically vet and then confirm the nominee by year’s end,” said former FCC Commissioner Robert McDowell. “This is especially true because Senate GOP leaders want the president to re-nominate Mike.”

Another source said the nomination would be “highly unlikely” to move forward given the timing and the support among Senate Republicans for Mr. O’Rielly.

An industry source said that “the only chance they will have is to move her fast through committee and get her to the floor so they have time.” Ms. Roddy’s nomination would likely have to be paired with a Democratic nominee for some post or be part of an end-of-session package, the source added.

“I’d see little chance of a unanimous consent to approve her,” the source said. “Democrats will want to force a cloture vote and then yield no time but instead use the full 30 hours of post cloture debate to flog the 230 issue along with interference with an independent agency.” —Paul Kirby, paul.kirby@wolterskluwer.com

August 3, 2020

The White House late this afternoon announced the withdrawal of FCC Commissioner Mike O’Rielly, an action that took many observers by surprise.

Sources told TR Daily that there was speculation that Mr. O’Rielly’s renomination was withdrawn because of his position on the section 230 Communications Decency Act executive order that President Trump signed in May targeting social media platforms by calling for regulations to remove the liability shield from companies that censor speech to engage in political conduct (TR Daily, May 28).

Last week, the National Telecommunications and Information Administration filed a petition for rulemaking with the FCC pursuant to the EO seeking clarification of the circumstances under which Internet intermediaries are entitled to the liability protections and for clarification of when a provider is considered to be acting in “good faith,” among other things (TR Daily, July 27).

Mr. O’Rielly has not been overly negative about the EO and the review asked of the Commission, but he has adhered to his usual approach of wanting to be sure the FCC has the necessary authority.

For example, last month he told reporters that he believes the president has the right to review existing legislation with an eye toward proposing changes and that he is doing his “homework” with regard to whether Congress “intentionally or accidentally” provided the FCC with authority over this issue. He noted that he was a congressional staffer “in the room” when the 1996 Act was drafted, and “that colors my experience.”

Mr. O’Rielly was first sworn in as a Commissioner in 2013. He was confirmed for a second term in 2015. The renomination that was withdrawn today was sent to the Senate in March.

Commissioner O’Rielly’s second term expired on June 30, 2019. By statute, if he is not confirmed to another term, he is allowed to continue serving until the earlier of the end of the current legislative session or the confirmation of a successor. The withdrawal will leave the FCC with a 2-2 deadlock unless replacement for Mr. O’Rielly is able to get confirmed before he has to leave the agency.

The Senate Commerce, Science, and Transportation Committee voted for Mr. O’Rielly’s renomination last month (TR Daily, July 22).

Mr. O’Rielly’s office had no immediate comment on the withdrawal today. However, a source said the withdrawal took him by surprise.

Meanwhile, Senate Armed Services Committee Chairman Jim Inhofe (R., Okla.) announced last week that he would block Senate floor action on the renomination of Mr. O’Rielly until he commits to voting to overturn the FCC’s Ligado Networks LLC order (TR Daily, July 28).

The FCC approved the Ligado order in April on a unanimous vote but over the objection of a number of federal agencies, including the Department of Defense, and aviation and other private-sector entities (TR Daily, April 20). The order adopted a license modification request to deploy a nationwide broadband network in the L-band. Opponents say it will cause interference to critical Global Positioning System operations. NTIA and a number of private-sector entities have asked the Commission to reconsider the order and NTIA has also filed a stay request (TR Daily, May 26).

The White House had no comment today on the reason Mr. O’Rielly’s renomination was withdrawn.

Observers of the FCC expressed astonishment at the announcement.

“I have been around D.C. Communications policy circles for 47 years. President Trump withdrawing the renomination of Mike O’Rielly for the FCC is the worst thing I ever have seen. Between Trump and Senators [John] Kennedy [R., La.] and Inhofe, I fear for the independence of the FCC,” Preston Padden, a long-time lobbyist who more recently worked for the now-defunct C-Band Alliance, which drew criticism from Sen. Kennedy, tweeted.

“It comes as a shocking surprise!” another observer told TR Daily.

“Totally stunned by it. Never seen it before in our world,” said another.

Mr. O’Rielly drew praise from a number of others on Twitter.

Berin Szóka, a senior fellow at TechFreedom, said, “Hey, remember that time @MikeOFCC had the courage to (oh so gently) remind his fellow Republicans that the First Amendment bars the FCC from policing speech online (no matter how much Trump whines about ‘Big Tech censorship’) and the White House retaliated by just canceling him?”

“Trump withdrew the renomination of @mikeofcc because Mike is nobody's puppet. This is what standing on principle looks like, kids,” said Richard Bennett of the High Tech Forum. —Paul Kirby, paul.kirby@wolterskluwer.com

Additional Views:

The Making – and Unmaking – of an FCC Commissioner

By Michael Fitch & Wesley Wright on August 10, 2020

On Monday, August 3rd, the White House withdrew its (re)nomination of FCC Commissioner Michael O’Rielly for another term. This unusual White House action has sparked discussion about the process and rationale for the withdrawal.

FCC Composition. The full slate of FCC leadership includes five Commissioners. The Chair and two Commissioners are of the same political party as the President. The two other Commissioners are members of the other political party.

Appointing Commissioners. When a Commissioner position is vacant, there are dozens (if not hundreds) of people interested in pursuing the vacancy and qualified to hold the position by their political connections and past work experience. Ultimately, the President nominates an individual to fill a vacant Commissioner position and this person must then be confirmed by a majority vote of the Senate.

The three Commissioners in the majority involve significant vetting by the White House, particularly in an election year like this one where FCC issues (e.g. broadband and telehealth) have significant political importance. Commissioner O’Rielly is completing his first full term as a Commissioner and was re-nominated for a second term in a Republican seat by the President on March 18th. His nomination was approved by Senate Commerce Committee on July 22nd.

The Ligado Decision. Late last month, and before the full Senate could consider his nomination, the Republican Chair of the Senate Armed Services Committee, Sen. James Inhofe (R-OK), announced a hold on Commissioner O’Reilly’s nomination. This hold precluded Mr. O’Rielly’s Senate confirmation vote. Sen. Inhofe initiated the hold because of concerns about the FCC’s April 22, 2020 decision approving applications from Ligado Networks to deploy a low-power terrestrial nationwide network in the L-Band. The FCC’s Ligado decision was contentious and received several objections, including from the Department of Defense and aviation interests concerned about potential interference to the GPS system that is critical to their operations.

Section 230 Petition. As O’Rielly’s nomination was playing out in the Senate, President Trump issued an Executive Order in May. On July 27th, the National Telecommunications and Information Administration (“NTIA”) filed a Petition for Rulemaking with the FCC pursuant to the Executive Order. The Petition asks the FCC to clarify the provisions of Section 230 of the Communications Decency Act of 1996. This Section of the Act generally provides liability protections for companies like Twitter and Facebook from being considered a publisher of third-party content when they remove content for being illegal, violating their terms and conditions, or as objectionable for other reasons. The NTIA Petition asked the FCC to further define the circumstances under which these companies are entitled to the liability protections.

On the same day, Chairman Ajit Pai and Republican Commissioner Brendan Carr welcomed the Petition. The two Democratic Commissioners – Starks and Rosenworcel – expressed concerns and argued that the FCC should not adopt NTIA’s proposal.

Two days later, on July 29th, Commissioner O’Rielly gave a speech as part of The Media Institute’s Luncheon series. Near the end of his speech, he expressed concern about the Petition. “The First Amendment protects us from limits on speech imposed by the government—not private actors—and we should all reject demands, in the name of the First Amendment, for private actors to curate or publish speech in a certain way,” he said. Less than a week later, the White House withdrew his nomination for a second full term. Next Steps. Commissioner O’Rielly’s term expired on June 30, 2019. By statute, if he is not confirmed to another term, he is allowed to continue serving until the end of the current legislative session or the confirmation of a successor. Though we have heard rumors of President Trump nominating a successor, we believe it’s unlikely any successor could be confirmed by the Senate before the election in November.

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