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 O’Rielly’s renomination was withdrawn because of his position on the section 230 Communications Decency Act executive order that President Trump signed in May targeting social media platforms by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 The renomination that was withdrawn today was sent to the Senate in March.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, [email protected]
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