Recently installed FCC Commissioner Nathan Simington says that, contrary to suggestions by some Democratic senators during his confirmation process, he has an open mind about how the FCC should address the issue of interpreting and adopting rules regarding section 230 of the Communications Decency Act, which 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.
President Trump issued an executive order last spring that, among other things, directed the National Telecommunications and Information Administration to seek clarification from the FCC of section 230 (TR Daily, May 28, 2020). In the summer, NTIA filed a petition with the FCC 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" (TR Daily, July 27, 2020).
In October, before the presidential election, FCC Chairman Ajit Pai announced that he intended to "move forward with a rulemaking" on section 230, noting that the agency’s general counsel, Thomas Johnson Jr., had informed him that the FCC has the legal authority to interpret section 230 (TR Daily, Oct. 15, 2020). However, earlier this month, Chairman Pai, who has announced plans to leave the agency tomorrow, stated that he no longer intended to "move forward with a notice of proposed rulemaking" to clarify section 230 (TR Daily, Jan. 8).
During an interview with TR Daily on Friday, Commissioner Simington, who was a senior adviser at NTIA before joining the FCC, defended himself against the narrative that President Trump nominated him to the FCC for his perceived support of FCC action on section 230. His nomination followed the president’s withdrawal of the renomination of former Commissioner Mike O’Rielly, which observers attributed to Mr. O’Rielly’s apparent doubts about the FCC’s authority to address section 230.
Commissioner Simington told TR Daily, "I don’t think the smoking gun that was alleged to exist has ever been found, of course because there isn’t one. I had no prior history with [section] 230 before coming to the NTIA, and the petition was already well under way before I set foot into the NTIA."
He added, "I would note that President-elect Biden has also indicated his frustrations with and at times [desire] to repeal [section] 230. As far as what’s next for [section] 230, I would say until about October of last year it remained actively controversial issue whether the FCC thought it could … make rules regarding section 230."
Noting that Chairman Pai has declined to circulate a draft item on section 230, Commissioner Simington said, "How I would react to a future chairman taking up this issue, … would depend, of course, on the specific proposal and how solid I thought the legal basis for it was, and its merit vis-à-vis public policy. But I’ve got an open mind and I’m willing to talk to people who believe fervently in [section] 230 reform, people who believe it’s absolutely illegal, and everyone in between."
Mr. Simington said that one of his two signature issues will be focusing on ways to improve communications between the FCC and the executive branch, including NTIA, on spectrum issues. The second signature issue will be promoting a "holistic" 5G transition, he said.
NTIA and the rest of the executive branch and the FCC must improve communications to manage spectrum and provide certainty in the wireless ecosystem, Mr. Simington stressed.
Revising the spectrum memorandum of understanding (MoU) between NTIA and the FCC is one proposal, but he said he’s not sure that will solve the problem.
The difficulty is that NTIA is a small agency that represents the entire executive branch, which includes agencies with far vaster resources, on spectrum issues, he said. It is important to"get all of government on the same page," he said.
In recent years, the Defense Department and other agencies have done an end run around NTIA and lobbied against FCC decisions at the agency and on Capitol Hill, including in opposition to the FCC’s Ligado Networks LLC and 24 gigahertz band orders.
"I think step one needs to be improving communication and confidence within all levels of government … so that there’s a greater feeling of certainty of process and clarity of outcome … that will allow the NTIA to … emerge as the expert agency that can be trusted … with defending the other executive branch agencies’ interests," Mr. Simington said.
He added that his comments are "in no way a criticism of the NTIA," which he said "does a fantastic job."
"It’s more a question of getting out in front of problems earlier, getting clarity on those problems," and avoiding "political conflict," Mr. Simington added.
When asked whether he was referring to the Ligado and 24 GHz band proceedings, he noted that he was not in government when those controversies arose and said he was not speaking of any particular proceeding.
In response to a question about whether he supports the FCC’s efforts to streamline the deployment of wireless infrastructure over the objections of Democratic Commissioners and localities concerned about state preemption, Mr. Simington replied, "It’s always a tough question when you’re talking about preemption."
Asked about his view of state and local government roles in telecommunications generally, the Commissioner said, "State and local authorities, while obviously experts on local conditions and democratic accountability toward those conditions, are by their nature of limited scope."
He added, "I certainly hope for a strong relationship and intend to engage in significant outreach to state and local entities, which doesn’t always mean things will turn out their way."
In response to a question about the need to modernize or overhaul the contribution methodology for the Universal Service Fund, Commissioner Simington noted potential solutions include modifications of the current methodology, moving to direct appropriations from Congress, or "revising the program entirely" in recognition that "the economic assumptions and program design assumptions in 1996 no longer obtain in 2021."
He added that an "adequate solution is going to require a buy-in from all stakeholders." However, he declined to endorse any specific proposal, "not that I don’t have my own views, but I would hate to prejudice the thinking of anyone … with regard to a solution that may prove to be politically unsustainable."
He said he would look at proceedings when they come before him, but stressed that he would also consider the cost of not being able to build small cells that the wireless industry says it needs for 5G deployment. He said he hopes the FCC uses preemption wisely.
Asked about how the FCC’s status as an independent agency—and perennial concerns about White House efforts to influence it—plays into his goal of improved communications between the FCC and the executive branch, Commissioner Simington said, "If we think back to President Obama’s administration, then obviously we had those charges raised against the Obama White House regarding net neutrality and improper influence there, without addressing the merits of any of those charges, which may be overblown, the point is that accusations of this type have been around Washington a long time. It’s always a difficult question because as you say the FCC is not part within the executive branch in the same sense that the Cabinet departments and their agencies are, and yet at the same time the president casts a long shadow and the executive branch isn’t something that the FCC can afford."
He added, "I guess my answer is that the FCC is an independent expert agency [that] always has an obligation to follow … the public interest. And … it’s not politicized in the way the executive branch agencies are structured to be. The FCC’s independence is one reason that it’s so highly regarded and that it’s so trustworthy as an expert arbiter and expert overseer of many of these questions at issue."
Mr. Simington also expressed support for a 30-day extension of the FCC’s 2.5 gigahertz band rural tribal priority window. He said granting a 180-day extension, as tribes and some members of Congress want, would result in tribes that are ready to deploy services being delayed. He also said it is important that tribes have the assistance they need in preparing applications.
Mr. Simington also said that he doesn’t think his background is a liability as an FCC Commissioner. He does not have a long background working on telecom policy issues, as many Commissioners have had.
Mr. Simington joined NTIA in June. He worked "on 5G security and secure supply chains, the American Broadband Initiative" and other issues, the White House said in a news release on his nomination in September (TR Daily, Sept. 16, 2020).
Before that, he was senior counsel at Brightstar Corp., which provides global wireless distribution and services, negotiating deals with other companies. Before joining Brightstar, Mr. Simington was an associate at Mayer Brown LLP and Kirkland & Ellis LLP in Chicago and Chapman and Cutler LLP in Washington.
"I think there have been lots of great Commissioners who come from a wide variety of backgrounds," including broadcasting, economics, engineering, and state utilities, Mr. Simington said."A diversity of backgrounds has historically been a strength and success of the Commission, and I’m looking forward to bringing my own particular experience … to the problems before the Commission."
He also said that his NTIA experience is beneficial, as is his background in finance and capital management.
Asked whether he thought the latter aspect of his background would be useful in addressing the challenge that access to capital presents to increasing diversity in ownership of communications businesses and licensees, he noted that the issue of broadcast ownership diversity is currently before the Supreme Court and that he couldn’t comment specifically on that.
However, he added, "We have to ensure that media will in fact be an attractive investment vehicle for women and minorities who are interested and have the capacity to invest. In order to do that we have to work to ensure and that broadcast and other forms of media … remain attractive and viable options and part of a healthy ecosystem." —Lynn Stanton, [email protected], and Paul Kirby, [email protected]
MainStory: FederalNews FCC NTIA SpectrumAllocation
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