FCC Commissioner Nathan Simington has spoken "in detail" with the FCC ethics counsel about the possibility that he might need to recuse himself from matters relating to section 230 of the Communications Decency Act, and "no grounds were identified for recusal on this topic at this time," according to a statement from Commissioner Simington’s office.
However, his office also said that the FCC ethics counsel "advised that, as there is no currently-pending Section 230 matter before the Commission to be discussed with specificity, it could not comprehensively rule out potential recusal in the future."
The Commissioner’s office added that "Commissioner Simington is committed to full transparency and the highest ethical standards and will proactively engage with FCC ethics counsel on any Sections 230 matters, or any other matters potentially implicating past work or employment, that may arise in future."
Section 230 of the Communications Decency Act provides liability protections for Internet intermediaries for hosting or transmitting third-party content and for the manner in which they police such third-party content.
Before being confirmed to the FCC last month (TR Daily, Dec. 8, 2020), Mr. Simington was a senior adviser at the National Telecommunications and Information Administration during the time that NTIA drafted and submitted to the FCC a petition asking the Commission to clarify section 230. NTIA undertook that action at the direction of President Trump, as embodied in an executive order issued in May. However, opponents of Mr. Simington’s nomination, including some Democratic senators, argued that he took advocacy positions with media outlets regarding the petition and failed initially to disclose that to the Senate Commerce, Science, and Transportation Committee, to which his nomination was referred before the floor vote.
Shortly after the submission of the petition, President Trump withdrew his renomination of former FCC Commissioner Mike O’Rielly, in what was viewed by some observers as a reaction to Mr. O’Rielly’s concerns about the FCC’s authority in this area. President Trump then nominated Mr. Simington to the FCC seat.
The FCC sought comments on the NTIA petition (TR Daily, Sept. 3, 2020), and FCC Chairman Ajit Pai subsequently announced that he intends "to move forward with a rulemaking" to clarify section 230 (TR Daily, Oct. 15, 2020). Shortly afterward, the Chairman declined to say during a conference call with reporters whether the next step in the FCC’s Communications Decency Act section 230 proceeding would be an order or a notice of proposed rulemaking (TR Daily, Oct. 27, 2020).
The Commission has not yet announced the circulation of a draft item to address the petition or clarify section 230, nor did Chairman Pai include it on the tentative agenda released last week for what is expected to be the last FCC meeting under his chairmanship, on Jan. 13. Chairman Pai has announced his intention to resign effective Jan. 20, which is Inauguration Day (TR Daily, Nov. 30, 2020). —Lynn Stanton, [email protected]
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