Blumenthal Eyes Simington Block; Wicker Consulting Members

Sen. Richard Blumenthal, D-Conn., threatened Tuesday to place a hold on FCC nominee Nathan Simington amid dissatisfaction with his refusal to commit during a Commerce Committee hearing to recuse himself from participating in the rulemaking on its interpretation of Communications Decency Act Section 230 and his answers on other matters. Senate Commerce Chairman Roger Wicker of Mississippi and other Republicans were supportive of Simington. The nominee's confirmation prospects were expected before the presidential election to be jeopardized if Democrat Joe Biden won (see 2011020001).

President Donald Trump urged Commerce Republicans to advance the nominee “ASAP.” Simington is “a very smart and qualified individual,” and there should be “action NOW on this very important nomination,” he tweeted. Trump directed it at Wicker and Marsha Blackburn, R-Tenn., who before the election voiced concerns about Simington. Blackburn didn’t attend.

“We’re going to be talking to” Senate Commerce members and will decide based on those conversations when and if the committee will hold a vote on Simington, Wicker told us. Commerce is leaving the hearing record open for senators’ additional written questions, with responses due Dec. 8. That would place any committee vote on Simington after then. “We had the hearing and regrettably not everyone was able to attend, but that was the chance” for committee members to “ask questions” in person of Simington, Wicker said.

Other Senate Commerce Republicans are believed to not yet be fully supportive, including Sen. Dan Sullivan of Alaska (see 2009280038). Sullivan also didn't participate.

Simington "had good responses” to senators’ questions, but it’s up to Wicker to decide whether there’s enough support within Commerce to advance the confirmation, said Communications Subcommittee Chairman John Thune, R-S.D. “We want to move the nomination forward” if possible, with the hearing “the first step in that process.” Sen. Shelley Moore Capito, R-W.Va., hoped the official “will be confirmed.”

'Hold' Concerns

Blumenthal said he plans to “put a hold” on Simington for “as long” as the nominee refuses to commit to recuse himself from the Section 230 rulemaking.

Trump appears to have nominated Simington in a bid to ensure the FCC will “execute” on the president’s push for agency involvement on Section 230, which should “trouble” Senate Commerce members, Blumenthal said. Senators need to “take seriously" the risk that the FCC will have diminished independence in the future. Trump is believed to have revoked his renomination of sitting Commissioner Mike O’Rielly because of his reluctance to say he wants the FCC to clarify its rules in response to Trump’s May Section 230 executive order (see 2008030074). O'Rielly "stood up to" Trump," Blumenthal said. "We need the FCC to be independent."

Simington's "been involved” in pushing for FCC involvement on Section 230 “in a formal way” via his role as an NTIA senior adviser, Blumenthal told Simington. Trump’s tweet "makes it clear what he expects from you, which I think should deeply trouble us all." He pressed the nominee to commit to interpret E-rate rules “to allow schools to use their funds for students who are stuck at home right now” and commit to using “at least $1 billion for Lifeline” purposes. Sen. Ed Markey, D-Mass., also prodded Simington on the FCC's E-rate statutory views (see 2009170068).

Wicker and Thune believe Blumenthal’s hold threat won’t derail plans to advance Simington if Republican support is firm. “We’re not trying to” move Simington by unanimous consent, which a hold would hinder, Wicker said. “We’re trying to get a vote and a confirmation, which would likely be along party lines.” If Senate Commerce advances Simington, “my guess is we would try and process him on the floor,” Thune said. “It’s a really important position and needs to be filled.”

Other senators noted the Section 230 issue, including Thune and Ted Cruz, R-Texas.

Cruz cited his long-standing concerns about social media platforms censoring conservative voices. He called actions on a New York Post article on Hunter Biden (see 2010140064) a “dramatic escalation in those censorship efforts.” Simington believes such issues made it difficult for people “establish certainty” about what they’re able to say online without being penalized by tech companies.

Recusal?

“It would be premature” to commit to recusal from the Section 230 proceeding now, Simington said. If confirmed, “the first thing that I will do is go to the FCC ethics office and discuss this matter in detail” and “abide by their recommendations as to recusal.”

Simington confirmed he was involved in drafting NTIA’s petition to the FCC seeking the Section 230 rulemaking (see 2007270070), but said he played only a “minor role” in its creation. "I helped with the blocking and tackling," he said. That involvement continued “briefly” after NTIA submitted the petition, but Simington said it ceased when he became aware he was being considered for nomination. Section 230 issues came up during conversations with the White House personnel office in vetting for the FCC nomination, but it was among a “variety” of topics discussed, he said.

“I sympathize with” calls for the FCC to reinterpret statute to allow for E-rate funding to be used for at-home activities amid the pandemic, and it’s something “I would pursue” if confirmed, Simington said. “I’m not privy to the commission’s internal deliberations in determining that that was not the interpretation that they wished to adopt.”

Thune noted his continued concerns about backdoor pushes at 5G nationalization and hopes the FCC “would continue to reject” such attempts. Simington agreed and noted his support for the “long-standing” spectrum auction regime currently mandated by Congress. It would be difficult to nationalize 5G without also implementing nationalized fiber and other infrastructure, which aren’t believed to be under consideration, he said.

Sen. Mike Lee, R-Utah, pressed Simington about federal agencies’ spectrum policy coordination, citing what he views as a “dysfunctional interagency process.” Lee in part noted DOD’s vehement opposition to FCC approval of Ligado’s L-band plan, an issue he also invoked during a June FCC oversight hearing (see 2006240069). Simington believes the FCC and other agencies need to pursue a “more robust” memorandum of understanding given the current on isn’t “100% clear.” The DOD-FCC fracas over Ligado is “a regrettable state of affairs” and the interagency process needs to become capable of factoring in national security concerns, he said.

Fight for the Future launched a call-in campaign urging senators to oppose Simington’s confirmation. The nominee is “even worse than” FCC Chairman Ajit Pai, said FFTF Deputy Director Evan Greer. “His only qualifications are his steadfast loyalty to an outgoing wannabe tyrant” and his involvement in the Trump administration’s Section 230 revamp work.