Simington Speaks on FCC Minority, NTIA, VMPVDs
FCC Commissioner Nathan Simington sat down with Communications Daily last week to discuss his new role as a minority commissioner, the agency’s relationship with the NTIA, and his thoughts on proposals to reopen the record on virtual MVPDs and increase the agency’s collection of EEO information from broadcasters. Following are Simington's lightly edited responses.
On now being in the minority in the new 3-2 FCC: As far as [Chairwoman Jessica Rosenworcel] not being able to get things done, I would note that the chairwoman has always had delegated authority [and that] is a pretty broad category. [Rather than partisan fighting], I think the things I care about are much more likely to get done if I'm cooperative. Sometimes you really do have things where there's an irreconcilable conflict, but you shouldn't be too quick to jump to them. I don't expect the relationships with cooperation that we built up over three years are going to go away. I certainly don't think that Gomez is here to cause trouble. [Stirring up] strife -- that seems ... very much the opposite of her extremely respected and successful career. There's obviously [going to] be a few controversial votes, but hopefully we can continue to get more light than heat even in the dissents.
On the state of NTIA-FCC relations: I think they're good, but the problem is NTIA is a very small agency. It's got great people, but [the] staff is like 250 people. NTIA is not a huge agency [and] has to represent the interests of the entire executive branch. And that assumes that the executive branch has a coherent spectrum policy. [When recommending to executive branch agencies], they'll get politely invited to take that opinion elsewhere.
On proposals that the FCC collect more equal employment opportunity data from broadcasters: I don't want anything that would create a presumption of discrimination. Under this environment, I think it would be very odd that we would expect there to be a higher level of discrimination in the broadcasting sector than in some others. But I do think it's possible that an oversight regime on this might create bad faith claims or opportunities, so we'd need to be really careful about how to do it. That said, I would definitely support the right EEO item. I'm not categorically opposed to it. It's all just a question of what the item says. If the purpose is to allow for federal oversight, that's fine. If the purpose is to empower the plaintiff’s bar, I don't know that they need to be especially empowered in this sector, right now. I mean, that's sort of a prudential consideration, but I don't think there's anything in the world that requires us to have a public database either.
On calls to refresh the record on classifying linear streaming services as MVPDs: Asking the question, generally, of what Congress and the public's expectations are of the FCC versus what our legal powers are under current First Amendment law is actually one of the hottest topics that is not usually very clearly addressed in public discourse. I think a lot of people expect we should be a communications commission, not a physical transmission commission. But at the same time you could push back on that and say, actually, the United States has never had a media regulator of the sort that you would have in other countries because the First Amendment seems to immediately forestall that. Interestingly, I think the Rosenworcel commission opened the door on this on a very interesting point a couple of months ago. We looked at the question of applying video relay service obligations to teleconference providers -- Zoom, Teams and such. ... I [thought] it was an interesting, implicit statement that if we are to fulfill the mandate that Congress expects of us, which is over not merely functional equivalents of traditional telephony ... Congress is probably not asking us to be too cute about what exactly that means. Then, this seems a place where we step across the jurisdictional threshold and say, yeah, we are gonna start regulating apps to this extent. I think the two issues are ultimately touching on the same problem, which is that communication is on apps now. And we always say we don't regulate apps. To what degree is that going to get us crosswise with Republican Congress? And where there's not a clear legal pathway, to what degree should we be more deferential to what we think the Supreme Court will do, then to what Congress thinks should be doing right now?