TR Daily Blumenthal Threatens to Put Hold on Simington Nomination
Tuesday, November 10, 2020

Blumenthal Threatens to Put Hold on Simington Nomination

Sen. Richard Blumenthal (D., Conn.) said today that he plans to put a hold on the nomination of Nathan Simington to be an FCC Commissioner because Mr. Simington refused at a hearing this afternoon to commit to recuse himself on the FCC’s consideration of a petition for rulemaking filed by the National Telecommunications and Information Administration concerning section 230 of the Communications Decency Act.

"I will put a hold on your nomination as long as you decline to make that commitment," Sen. Blumenthal told Mr. Simington during the hearing before the Senate Commerce, Science, and Transportation Committee.

Earlier in the hearing, Mr. Blumenthal told Mr. Simington, who is a senior adviser at NTIA, that "I’m very concerned that you have been sent to the FCC on a mission to execute that order."

Mr. Blumenthal noted that the renomination of Commissioner Mike O’Rielly was withdrawn after Mr. O’Rielly expressed concern about President Trump’s section 230 executive order (TR Daily, Aug. 3).

"He was fired. He stood up to the president. We need the FCC to be independent," the senator said.

He also observed that Mr. Trump tweeted today in support of Mr. Simington’s nomination, which the Senate is considering during its post-election lame-duck session.

"Nate Simington, a very smart and qualified individual, is having his Senate hearing today. Republicans will hopefully confirm him to the FCC ASAP! We need action NOW on this very important nomination!!" Mr. Trump tweeted.

"I am deeply concerned that the president’s executive order is, in effect, an assault on the credibility and legitimacy of the FCC," said Mr. Blumenthal, who said he supports reforming section 230 of the CDA. "The NTIA, during your time there, in effect acted as an arm of the president in supporting seeming retaliation against political rivals. … Consumers deserve an independent FCC free from political interference and possible manipulation."

Mr. Blumenthal asked Mr. Simington what role he played in drafting NTIA’s petition, which was submitted to the FCC in July (TR Daily, July 27).

"I played a minor role in drafting the petition," Mr. Simington said. He said that the "substantive legal arguments" had been "largely outlined" before he joined NTIA, adding that he helped with citing and fact checking, as well as public relations. Once it became clear that he would be considered for the FCC nomination, he said he "ceased any active work on the petition whatsoever." His involvement continued two or three weeks after NTIA submitted the petition to the FCC but terminated before NTIA’s response, he said.

Mr. Simington also said that section 230 was among the topics he discussed with the White House personnel office related to his nomination, but he said it was not a major part of the conversation.

In response to Mr. Blumenthal’s request for a commitment to recuse himself on FCC action on the petition, Mr. Simington replied, "I believe it would be premature to make such a commitment." He added that he would abide by what FCC ethics officials say he should do.

In response to questions by committee Chair Roger Wicker (R., Miss.), Mr. Simington said he did not draft the original version of the petition and his work involved subsequent versions. He estimated that was responsible for about 5-7% of the petition’s words.

In response to a question from Sen. Ted Cruz (R., Texas), Mr. Simington said he believes that a section 230 rulemaking is a good idea and that section 230 needs to be reformed.

He told Sen. John Thune (R., S.D.) that any reform of section 230 would have to be done by Congress and that the FCC should build a record on any action it could take and consult with Congress.

In his opening statement, Mr. Simington noted that telecom services have been critical during the COVID-19 pandemic and he stressed the importance of closing the digital divide. He also outlined four principles: "regulatory stability," "universal connectivity," "public safety and national security," and the "public interest."

Democratic senators asked Mr. Simington if he would support using E-rate funds to provide connectivity to students in their homes. He said he would explore it but would need to confer with his colleagues at the agency to see how they arrived at their positions. "I don’t want to prejudge the issue," he told Sen. Ed Markey (D., Mass.).

He told Mr. Wicker that the FCC could use waivers and test beds to promote domestic technology development in response to threats posed by vendors that pose a national security risk.

Sen. Thune asked Mr. Simington for his view of a nationalized 5G network. He replied that he didn’t know how such a network would work from a legal perspective and said he supports the spectrum auction regime endorsed by Congress.

Sen. Mike Lee (R., Utah) asked Mr. Simington a number of questions about spectrum policy, including whether NTIA or another federal agency should have a veto over FCC decisions concerning commercial licensing.

Mr. Simington said such a veto would be problematic for the FCC’s actions, and he suggested that a memorandum of understanding between the FCC and NTIA be modified so it is "more robust."

Mr. Simington noted the controversy over the FCC’s 5-0 Ligado Networks LLC decision but said the FCC followed its statute and legal standard.

"I think this is a regrettable state of affairs," he added. "And this is why we need a better interagency process."

On other issues during the hearing, Mr. Simington told senators that he opposes reclassifying broadband services under Title II of the 1934 Communications Act, as amended; supports examining what resources other agencies may have to help the FCC improve its broadband maps; opposes the diversion of 911 funds for other purposes; supports prioritizing funding for telehealth; and would work to prevent waste, fraud, and abuse in the universal service high-cost program. Mr. Simington also expressed support for extending a 2.5 GHz band rural tribal priority window, and he seemed to endorse a 30-day extension, although a number of parties, including lawmakers, are pushing for an extension of about 180 days. The FCC granted a 30-day extension. —Paul Kirby, [email protected]

MainStory: FCC FederalNews Congress SpectrumAllocation WirelessDeployment UniversalServiceLifeline PublicSafety NetNeutrality InternetIoT

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