TR Daily Observers Blast Withdrawal of O’Rielly Nomination
Tuesday, August 4, 2020

Observers Blast Withdrawal of O’Rielly Nomination

Former FCC officials and other observers today blasted President Trump’s withdrawal of FCC Commissioner Mike O’Rielly’s renomination, which sources said was tied to remarks on the section 230 Communications Decency Act executive order that White House officials saw as critical.

“I believe it’s the thought police in presidential personnel, and it’s an outrage and terrible for the institution and its independence even before we reach the merits of Commissioner O’Rielly’s remarks, which were well grounded in law and policy,” said one former Commission official. “He’s a fine public servant and a loyal Commissioner treated tremendously unfairly. Trump is the playground bully picking on the smart kid because he showed him up in class.”

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 a replacement for Mr. O’Rielly is able to get confirmed before he has to leave the agency. The former FCC official noted that with Mr. O’Rielly gone and if FCC Chairman Ajit Pai departs if Democratic presidential candidate Joe Biden wins the November election, the FCC would get an immediate 2-1 Democratic majority rather than having to wait for Senate confirmation of another Democrat, which could take months.

Even if Mr. Trump wins, a 2-2 deadlock would make it harder for Republicans to get controversial items through the agency. “It totally screws up the agenda now,” the source added.

Although another source said that Mr. O’Rielly questioned whether Mr. Pai, who met with Mr. Trump in the Oval Office yesterday about a telehealth executive order (see separate story), and/or Commissioner Brendan Carr played a role in Mr. Trump’s withdrawal decision, another former agency official said that, based on conversations with people who have direct knowledge of the situation, that was not the case.

“Carr did not cause this to happen. He and Pai were equally surprised. It came from the White House only and likely stemmed from reaction to Mike’s speech regarding the Section 230 proceeding,” the former official said, adding that the proceeding is “going nowhere now, and maybe never had a snowball’s chance to begin with.”

Mr. O’Rielly’s office declined to comment today, and Mr. Carr did not respond to a request for comment. An FCC spokesperson said that Mr. Pai “did not discuss [withdrawal of the nomination] with anyone at the White House, including the President. He had no knowledge that the nomination was going to be withdrawn.” Sources said that Mr. O’Rielly was caught by surprise at the decision.

The EO, which was signed in May (TR Daily, May 28), targets social media platforms by calling for regulations to remove the liability shield from companies that censor speech to engage in political conduct.

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).

The O’Rielly speech that some sources pointed to as leading to withdrawal of the renomination was delivered last week to the Media Institute (TR Daily, July 29). It touched on a number of issues, including the First Amendment.

“Today, I would like to address a particularly ominous development in this space. To be clear, the following critique is not in any way directed toward President Trump or those in the White House, who are fully within their rights to call for the review of any federal statute’s application, the result of which would be subject to applicable statutory and constitutional guardrails. Rather, I am very troubled by certain opportunists elsewhere who claim to be the First Amendment’s biggest heroes but only come to its defense when convenient and constantly shift its meaning to fit their current political objectives. The inconsistencies and contradictions presented by such false prophets would make James Madison’s head spin, were he alive to witness them,” Mr. O’Rielly said.

“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,” Mr. O’Rielly added. “Like it or not, the First Amendment’s protections apply to corporate entities, especially when they engage in editorial decision making. I shudder to think of a day in which the Fairness Doctrine could be reincarnated for the Internet, especially at the ironic behest of so-called free speech ‘defenders.’ It is time to stop allowing purveyors of First Amendment gibberish to claim they support more speech, when their actions make clear that they would actually curtail it through government action. These individuals demean and denigrate the values of our Constitution and must be held accountable for their doublespeak and dishonesty. This institution and its members have long been unwavering in defending the First Amendment, and it is the duty of each of us to continue to uphold this precious protection.”

In an interview on C-SPAN’s “The Communicators” program in June (TR Daily, June 12), Mr. O’Rielly said that while he sympathizes with the president’s points and believes that the president “has the full right to review any statute as part of his obligation to propose changes,” it’s important for the Commission to focus on its statutory authority.

“Did Congress provide us authority to act [on] what the president has asked for? Was it intentional authority? Or was it accidental authority? Or there is no authority. And that’s something really important,” Mr. O’Rielly said. “What the president would like to see happen is for the FCC to define certain components of the 230 statute, and what’s the scope, and how it’s being handled, and whether we can apply appropriate limitations if necessary. I think we have to start with jurisdiction, and then the First Amendment. And then you get into what are the paths of the First Amendment if we were to go down this route. What would happen if we did X, Y, or Z, and what does that mean for the future of the Internet and digital communications and IP traffic? I’m mindful of that. ... I have to do my homework. … I want to reach out to those that actually wrote the statute and those that are continuing to weigh in on the matter.”

He also said that “section 230 has functioned as intended and therefore has been incredibly beneficial. But could Congress or could the FCC put some guardrails on it and narrow it to make it more functional, and therefore not provide some of the wide-open opportunity and some of the abuses we may be seeing in the marketplace? … That’s certainly something to explore, and that’s something [that] you expect from a wide-open debate we’re about to have. And so I think there’s both parts. It has been very beneficial. Could it be improved? I think there certainly are some sound arguments for that. Is it my responsibility or Congress’s or some other agency’s? Those debates will all have to be had in the coming months.”

Mr. O’Rielly had already faced another complicating factor in his renomination.

Senate Armed Services Committee Chairman Jim Inhofe (R., Okla.) announced last week that he would block Senate floor action on the renomination until he committed 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). “President Trump promptly should withdraw his withdrawal of @mikeofcc's nomination for another term @FCC. The @POTUS action calls into question the integrity of @FCC processes. And it is wrong to treat a free market, rule-of-law oriented dedicated public servant this way,” Randolph May, president of the Free State Foundation and a former FCC associate general counsel, tweeted today.

“Mike O’Rielly has been a sterling public servant for as long as I have had the privilege of knowing him, a span of time covering my years in the Senate and throughout my time leading NAB. He is the consummate professional—smart, diligent, honest, and fair,” National Association of Broadcasters President and Chief Executive Officer Gordon Smith said in a statement released last night. “For these and many other reasons, NAB has been proud to support his continued service at the Commission. But for these reasons also, I have every confidence that he will succeed wherever he casts his lot.”

David Quinalty, a former staffer for the Senate Commerce, Science, and Transportation Committee who is head-federal policy & government affairs for Waymo LLC, tweeted today that “@mikeofcc is probably the most principled person I ever worked with in DC (sometimes frustratingly so!) Not to mention extraordinarily thoughtful, fearless, humble, professional, and kind. I learned a lot from him. We need more, not fewer, O’Rielly’s in public service.” —Paul Kirby, [email protected]

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