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FCC - White House Withdraws O’Rielly Renomination - Replaced by Simington

FCC Commissioner

Update December 14, 2020


Nathan Simington, Commissioner Nathan Simington was nominated to serve as a Commissioner of the FCC by President Donald J. Trump. He was confirmed by the United States Senate in 2020.

Commissioner Simington brings both private and public-sector experience to the Commission. Previously, he served as Senior Advisor at the National Telecommunications and Information Administration (NTIA.) In this role, he worked on many aspects of telecommunications policy, including spectrum allocation and planning, broadband access, and the US Government’s role in the Internet. Prior to joining the Commission, he was senior counsel to Brightstar Corp., an international mobile device services company. In this capacity, he led and negotiated telecommunications equipment and services transactions with leading providers in over twenty countries. Prior to joining Brightstar, he worked as an attorney in private practice.

Commissioner Simington is a graduate of the University of Michigan Law School. He also holds degrees from the University of Rochester and Lawrence University. Commissioner Simington grew up in Saskatchewan, Canada. He became a United States citizen and now lives in McLean, Virginia with his wife and three children.

Update December 8, 2020


Senate approves Nathan A. Simington, of Virginia, to be a Member of the Federal Communications Commission for a term of five years from July 1, 2019


UPDATE December 2, 2020


Senate Commerce Committee Forwards Simington Nomination

The Senate Commerce, Science, and Transportation Committee today (12/2/20) voted 14–12 on party lines to favorably report the nomination of Nathan Simington to fill the seat on the FCC currently occupied by Commissioner Mike O’Rielly.


Sen. Richard Blumenthal (D., Conn.), who had stated at Mr. Simington’s confirmation hearing last month that he intended to put a hold on the nomination (TR Daily, Nov. 10), reiterated his opposition today, saying, "I will continue this fight on the floor. I will continue to do everything I can to hold this nomination and oppose it."

Commissioner O’Rielly’s term expired June 30, 2019, but under the provisions of the Communications Act, he may continue in his post until the end of the current congressional session or until a successor is confirmed. Mr. Simington, who is currently a senior adviser at the National Telecommunications and Information Administration, has been nominated to fill out the remainder of the five-year term following Commissioner O’Rielly’s, that is, for a term that would end June 30, 2024.


Mr. Simington’s nomination has sparked controversy over his role in NTIA’s petition for the FCC to clarify the provisions of section 230 of the Communications Decency Act (TR Daily, Aug. 7), which provides liability protections for Internet intermediaries such as Facebook, Inc., Twitter, Inc., and Internet service providers from being treated as the publisher of third-party content when they remove content for being illegal, violating their terms and conditions, or as objectionable for other reasons. NTIA asked the FCC to clarify provisions that refer to "otherwise objectionable" content and "good faith" actions to restrict access to content.


NTIA’s petition was filed pursuant to an executive order issued by President Trump in May, which also included calls for the Justice Department to propose legislative changes to section 230 and for the Federal Trade Commission to consider enforcement actions against social media platforms and other online entities whose acts or practices regarding content moderation are deceptive or unfair.


President Trump had previously renominated Commissioner O’Rielly to another term, but he unexpectedly withdrew the nomination in August in what was widely viewed as a reaction to public remarks by Commissioner O’Rielly questioning the FCC’s legal authority to interpret section 230 (TR Daily, Aug. 7).


In a related action, Communications Workers of America President Christopher Shelton has written presumptive President-elect Joe Biden to urge him to designate FCC Commissioner Jessica Rosenworcel as Chair in January, and to nominate Debbie Goldman to the Commission. Even if Mr. Simington is confirmed, there is expected to be a vacancy on the Commission to be filled because FCC Chairman Ajit Pai recently announced his intention to resign effective Inauguration Day, as previous Chairmen have done (TR Daily, Nov. 30). Ms. Goldman is CWA’s long-time research and telecommunications policy director.

"In these roles, Jessica and Debbie will be the best people to help move your vision forward to encourage the equitable deployment of next-generation broadband networks while protecting consumers and good jobs in the telecommunications industry," Mr. Shelton said.


In remarks before the committee vote on Mr. Simington’s nomination, committee ranking minority member Maria Cantwell (D., Wash.) noted that President Trump "abruptly pulled" Commissioner O’Rielly’s nomination, "reportedly in retaliation for Mr. O’Rielly speaking his mind" on section 230.


Sen. Cantwell also questioned Mr. Simington’s qualifications for the Commission post, citing his "lack of experience with the FCC, its statutory responsibilities, and many of the key issues at the agency." She added that "real questions have been raised" about his testimony before the committee. "We now know, based on his own emails that he misrepresented his involvement" in advocating for FCC action on NTIA’s section 230 petition by seeking "national media personalities’ explicit help in putting direct pressure on the FCC to move forward on the administration’s Section 230 petition." Politico has reported that Mr. Simington urged Fox News host Laura Ingraham to push the FCC to act on the petition.


In remarks after the committee vote, Sen. Blumenthal said, "I really regret that this committee is rushing to approve the nomination of Nathan Simington to the Federal Communications Commission." He added, "What is at stake here … is in fact the independence of the FCC. Mr. Simington has stated his position and has actively worked on an issue that will come before the Commission."


Sen. Blumenthal expressed concern that, with Chairman Pai planning to leave the Commission on Inauguration Day, the confirmation of Mr. Simington will mean a deadlocked Commission in midst of the COVID-19 pandemic and associated economic crisis that have highlighted the need for FCC action to ensure online connectivity as work, education, healthcare, social connections, and other activities move online.


"Mr. Simington has failed to provide this committee with the assurance that he will have the candor and independence that is required" of a Commissioner on an independent agency, Sen. Blumenthal said. He emphasized the he found Mr. Simington’s responses to questions from both Democratic and Republican members of the committee during his confirmation hearing to be evasive. "He has since had to correct the record in substantial ways," Sen. Blumenthal added.


"It would seem Mr. Simington has been nominated for just one purpose," that is, to forward President Trump’s aims with regard to section 230, Senator Blumenthal said.

"The FCC and the NTIA simply cannot be permitted to be an instrument of bullying in election campaigns," he added.


He also pointed out that the committee has "in the past moved forward with paired nominations. In fact, [FCC] Commissioner [Jessica] Rosenworcel’s [re]nomination was held for eight months. She had to leave the Commission" and be renominated and confirmed before she could retake her seat.


In a statement on the committee’s vote, Sen. Ted Cruz (R., Texas), a strong advocate of section 230 reform, said, "In the remaining days of this Congress, the Senate should move expeditiously to confirm Nathan Simington. The Commission is closely divided, and with expected departures, a single vote could make the difference. Mr. Simington has pledged that he will work diligently to fulfill the FCC’s mandate to defend our nation’s communications infrastructure and champion the might of the free enterprise system, so companies can continue to innovate and foster fair forums for public expression and debate."


Sen. Cruz added, "The FCC today faces perhaps the most challenging landscape of its history. From working to secure a strong and reliable telecommunications and broadband infrastructure for our communities, to addressing national security threats from foreign nations, and taming the runaway power of platform monopolies, major questions of the 21st century hang in the balance. The FCC can provide the American people with real transparency on Big Tech’s pattern of political bias and censorship and I will continue to urge members of the FCC to do so. I have confidence that Mr. Simington will add an important voice as the FCC works to address those challenges."


In a statement reacting to the committee vote, Charter Communications, Inc., said, "Charter applauds Chairman Roger Wicker and the Senate Commerce Committee on today’s vote approving the nomination of Nathan Simington to serve on the Federal Communications Commission. We encourage the full Senate to move quickly to confirm him so he can begin contributing his talents to the Commission and the people the agency serves."


Joshua Stager, senior counsel for New America’s Open Technology Institute, said, "The Senate should table this unnecessary nomination fight and focus on the pandemic relief legislation that everyone has been waiting for since March. Millions of Americans are suffering through the pandemic without access to the internet. We need FCC commissioners who are laser-focused on this crisis, not waging President Trump's personal vendettas against Twitter. Moreover, the notion that this nominee’s confirmation is explicitly intended to create gridlock at the FCC is galling. The American people don't need gridlock—they need help getting through this pandemic."


Free Press Action Vice President–policy and General Counsel Matt Wood said, "Nathan Simington has zero qualifications for this position. He’s here only as a result of strong-arm political tactics to reward his loyalty to Trump. Hand-picked and then forced on the Senate by a now-defeated president, Simington was not chosen for his expertise or ability, but for his apparent willingness to improperly cast a vote on the unlawful, unconstitutional and just plain bad Section 230 petition that he helped write.


"Yet it seems that Senators [Mitch] McConnell [R., Ky.] and Wicker have taken up this controversial nomination at the bidding of a lame-duck executive over the misgivings of members of their own party. The sole purpose? Obstructing the incoming Biden administration and its FCC appointees," Mr. Wood added.


"Even the Wall Street Journal could find no reason to justify its endorsement of Simington apart from his ability to gum up the works at the agency. The editorial page roundly criticized Trump’s 230 plan for the FCC yet called for Simington’s appointment because otherwise the Biden administration ‘could immediately get to work.’ It doesn’t get much more blatant and disgusting than that," Mr. Wood said.


"This kind of obstructionism is always childish but during a national health crisis—when phone and internet connections are literal lifelines connecting families to remote work, online education and telemedicine—throwing a wrench in the gears of the agency designed to bridge the digital divide is despicably cruel," he added. —Lynn Stanton, lynn.stanton@wolterskluwer.com


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.


https://www.whitehouse.gov/presidential-actions/president-donald-j-trump-announces-intent-nominate-appoint-individuals-key-administration-posts-091620/


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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