Nov 13, 2020 - Technology

The fight over Trump's FCC pick

Illustration of hands in a tug of war with a tangled phone cord

Illustration: Eniola Odetunde/Axios

President Trump is pushing the Senate to confirm his hand-picked nominee for a seat on the Federal Communications Commission, but people familiar with the state of play on Capitol Hill don't expect him to get his wish.

Why it matters: The FCC oversees broadband internet rules, media ownership regulation and other policies that hold special importance to the president. A Trump-aligned commissioner could likely agitate for greater agency involvement in how online platforms moderate speech and otherwise extend Trump's influence into the Biden administration.

Catch up quick: Trump plucked Nathan Simington from the Commerce Department in September to join the FCC.

  • Simington, who is a relative unknown in telecom policy circles, had helped implement the president's social media executive order seeking to curb platforms' ability to moderate content.
  • Trump had previously tapped GOP Commissioner Mike O'Rielly for another term, but the president revoked that nomination after O'Rielly questioned the FCC's authority to craft online speech rules.
  • Simington had his confirmation hearing before the Senate Commerce Committee this week.

Driving the news: A quick confirmation for Simington in Congress' lame duck session would give Republicans a chance to sabotage the early work of the Biden FCC.

  • The 5-member FCC gives 3 seats to whichever party holds the White House and 2 from the other side.
  • FCC Chairman Ajit Pai is widely expected to step down before Biden takes office, and O'Rielly's term is up.
  • Their impending departures set up the Biden administration to start with a 2-1 Democratic majority at the FCC that could advance policy before other Biden nominees are confirmed to the empty slots.
  • If Simington is confirmed first, that would instead leave the FCC with a 2-2 party-line split, hampering big policy changes on issues such as net neutrality until another Democrat is confirmed.

What they're saying: "[Senate Majority Leader Mitch] McConnell may see the bigger picture — keeping the FCC at 2-2 is better for a conservative approach to regulatory policy than allowing the Democrats to hit the ground running with a 2-1 advantage," said former Pai aide Nathan Leamer, now vice president at public affairs firm Targeted Victory.

Of note: McConnell could also easily slow-walk the process of filling the third Democratic seat should his party hold the chamber following January run-off elections in Georgia.

On the morning of Simington's hearing Tuesday, Trump tweeted, "Republicans will hopefully confirm him to the FCC ASAP! We need action NOW on this very important nomination!!"

  • Per a spokesperson, Sen. Ted Cruz "looks forward to working with Mr. Simington and hopes he will be swiftly confirmed," applauding Simington's "fresh, new, and important perspective" on using the FCC to narrow the reach of tech platforms' liability shield, Section 230 of the Communications Decency Act.

Yes, but: Simington is still viewed as unlikely to make it through the confirmation process in the limited time left in this Congress. He may lack the votes to get approved by the Senate Commerce committee, and he faces broader procedural hurdles.

  • Observers argue McConnell is unlikely to view confirming Simington as a great use of the time the Senate has left this year. (A McConnell spokesperson said there were no floor scheduling announcements or guidance to share on Simington.)

Meanwhile: Sen. Richard Blumenthal (D-Conn.) said he would put a hold on Simington's nomination — slowing down its progress — unless Simington commits to recusing himself from FCC deliberations relating to Trump's executive order, since he was involved in implementing it.

The bottom line: "The Senate Majority Leader has been very clear he wants to get more judges through — is jamming up the FCC really a priority for Republicans?" former FCC adviser Gigi Sohn said.

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