Senators, net neutrality advocates rail against looming lame-duck confirmation of new FCC commissioner

Nathan Simington not qualified, they claim, and installed to create deadlock

Updated Two leading Democratic senators and a range of advocacy groups have condemned a partisan effort to force through confirmation of a new FCC commissioner.

At an online meeting on Monday, senators Richard Blumenthal (D-CT) and Ron Wyden (D-OR) along with representatives from Fight for the Future, Access Now, Free Press, and Public Knowledge, among others, argued that Nathan Simington has “almost no relevant experience” for the critical post at America's telecoms regulator. Simington did, however, draw up the Department of Commerce’s request to the FCC to take a look at changing Section 230 internet protection laws, and has refused to say if he would recuse himself from such discussions if appointed.

Politicians at the meeting complained that the drive to confirm Simington during the lame-duck period between now and Inauguration Day in January is little more than an effort to deadlock the FCC as the new Biden administration comes into power. Part of that deadlock effort is to prevent the re-re-re-reversal of net neutrality rules. Simington could be confirmed as early as tomorrow by the Republican-led senate.

“Simington is the wrong person for the FCC,” said Blumenthal, who sits on the senate committee weighing up his nomination. “He is conflicted, unprepared and unqualified.” Blumenthal referenced the nominee’s failure to answer basic questions about FCC programs during a nomination hearing and argued that “his sole qualification is that he is more than happy to do the president’s bidding.”

The confirmation would also break a Senate tradition of approving FCC commissioners in bipartisan pairs, he said. The leadership of five-member independent regulators like the FCC and FTC is split between the two political parties – two Democrat, two Republican, with a chair chosen by the president. In an effort to avoid what are supposed to be independent regulators from being dragged into partisan politics, the Senate usually approved two commissioners – one from each party – at the same time.

But in recent years, and especially under the leadership of outgoing boss Ajit Pai, the FCC has dropped many of its independent attributes and has been increasingly sucked into tribal politics.

Whyden

Senator Wyden was also critical of Simington’s nomination and vowed to “pull all out the stops” to oppose “this particularly flawed candidate.” His approval would “hamstring Biden’s ability to get moving again,” Wyden warned, something that will likely include bringing back net neutrality protections. “I’d like to get net neutrality back on the books and in the FCC, a real cop of the beat,” Wyden noted.

Advocacy group Fight for the Future, best known for its fierce defense of net neutrality rules, was also caustic. “Simington has been nominated to fill a vacancy left by President Trump’s abrupt withdrawal of FCC Commissioner Michael O’Reilly’s re-nomination, whose renewal for another term was pulled after he criticized the administration’s Executive Order targeting Section 230 of the Communications Decency Act, punishing social media platforms in blatant violation of the First Amendment,” complained its representatives.

“Simington has almost no relevant experience for the position, and had difficulty answering even basic questions about issues under the FCC’s jurisdiction during his confirmation process.”

Despite the strong words, however, it is far from clear that it will be possible to stop Simington from assuming the commissionership. His nomination requires a majority of the Senate, but with the Republican party holding a slim majority, it will require a number of Republican senators to vote against the party line to block it.

On that point, the net neutrality advocates were in very familiar territory: desperately trying to persuade a small number of Republicans to shift position.

The same situation has occurred repeatedly during the long and drawn-out battle over net neutrality but, as history has made plain, when it comes to the crunch, the partisan nature of Congress consistently overrules any appeal to conscience. ®

Updated to add on December 8

Simington has been confirmed by the Senate as an FCC commissioner.