When it comes to Inside-the-Beltway gossip and chatter, nothing has ceased in COVID-19 times except perhaps the in-person delivery of prognostications and predictions that could have some merit — or are simply the opinions of wishful wonks.
The latest talk to emerge from the Nation’s Capital involves the FCC. And, it appears that no matter who wins the 2020 U.S. Presidential Election, the composition of its Commissioners will not be the same come January 21.
Two news stories are making the rounds and getting attention across D.C.
The first, written by policy reporter Makena Kelly at Vox Media’s The Verge, discusses a “230 critic” as the possible replacement for Commissioner Mike O’Rielly should President Trump be reelected.
On August 3, the White House withdrew the nomination of Michael O’Rielly to a second five-year term as a Commissioner at the FCC. While no specific reason was stated in the notice from the White House, it is largely believed that the withdrawal of O’Rielly’s nomination is tied to his decision to approve an application from Ligado to facilitate 5G and “Internet of Things” services. Comments on social media the Fairness Doctrine made July 29 during a virtual luncheon address are also at play.
With many D.C. insiders expressing their doubts on O’Rielly retreating from his stance on each matter, the future of FCC could very well come down to Section 230 of the Communications Act of 1996.
This section states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” It provides immunity from civil liabilities for information service providers that remove or restrict content from their services they deem “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”
As O’Rielly is a strict First Amendment advocate, he isn’t bound to change that rule dating to the Clinton administration. That said, the FCC’s Consumer and Governmental Affairs Bureau will invite public input on the Commerce Department rulemaking petition, FCC Chairman Ajit Pai said in early August.
“Longstanding rules require the agency to put such petitions out for public comment ‘promptly,’ and we will follow that requirement here,” said Pai, who added, “I strongly disagree with those who demand that we ignore the law and deny the public and all stakeholders the opportunity to weigh in on this important issue. We should welcome vigorous debate—not foreclose it. The American people deserve to have a say, and we will give them that chance. Their feedback over the next 45 days will help us as we carefully review this petition.”
This feedback window is closing within days, and with O’Rielly largely silent over the last month, The Verge reports that the Trump Administration is considering an individual who has been in his current position of National Telecommunications and Information Administration (NTIA) Senior Advisor for all of four months: Nathan Simington.
Before joining the NTIA, in June, Simington was a senior counsel for Brightstar, the SoftBank Group-owned wireless distributor. He’s also been an attorney at Kirkland & Ellis, Chapman and Cutler, and started his career in 2011 as an associate at Mayer Brown following his completion of law school at the University of Michigan.
Simington is also an accomplished violinist, with schooling at the Eastman School of Music.
“The choice is still tentative, but if confirmed, the nomination would represent a significant blow to Republicans who favor a light-touch approach to telecom policy,” The Verge reports.
That’s intriguing, since the Pai Commission, with Brendan Carr taking the lead on broadband issues, has been largely influenced by the American Enterprise Institute since the Trump transition team was pieced together in late 2016 under the leadership of Mark Jamison and Roslyn Layton, among others. Their collective view is that a “light-touch approach” is necessary given the competitive landscape of 2020, compared to years past and the Democrats’ penchant for regulations.
Why Simington? It is said that he had a hand in the White House executive order on social media, which triggered furor among those who called it inappropriate regulation of networks such as Facebook and YouTube. It also protects websites from public comments made that could result in potential libel or slander; RBR.com reviews all comments before publishing, whereas McClatchy Co.-owned daily newspapers do not.
The Verge also notes that the search for an O’Rielly successor has been “chaotic,” and it remains unclear if a nomination will be submitted prior to Election Day. Even if that happened, now-retired Fletcher Heald & Hildreth attorney Peter Tannenbaum said in August that the Senate will likely not vote on another nominee in this Congressional session. “A few senators are starting to get impatient with Trump on some major issues and they may not vote to confirm on anyone other than O’Rielly,” Tannenbaum believes.
All of this, of course, hinges on the president’s ability to win reelection, which is shaping up to be a repeat of Al Gore’s contest against George W. Bush some 20 years ago. Should the president lose the election to Joe Biden, Ajit Pai will most certainly exit.
A ROSY FUTURE AT THE FCC?
With a Democrat in the White House, the departure of Pai is a near guarantee. But, for the broadcast media industry, the continued presence of Mike O’Rielly could plausibly continue — creating a scenario where much of the Pai Commission’s rule “modernization” would still have two key champions.
What would then transpire was predicted by Protocol, a new media company from Politico, the D.C.-focused news organization led by Publisher Robert Allbritton. As tech policy reporter Emily Birnbaum reports, Jessica Rosenworcel — who became a political pawn in late 2016 with her failure to secure a renomination, only to win one from the Trump administration in summer 2017 — is in line to become Pai’s successor.
For Birnbaum, Rosenworcel is a leading choice as Biden’s pick for the next Chairman because “she’s the longest-serving Democrat on the commission, boasts two decades of communications policy work, and has spent years cultivating close relationships with left-leaning groups around Washington, D.C., who consider her a pivotal, and particularly forceful, ally on issues like net neutrality and expanding broadband access.”
This set the stage for an interview with Rosenworcel in which she addressed the Section 230 matter by saying, “[S]ocial media can be so frustrating, but turning the FCC into the president’s speech police isn’t the answer, and that executive order is ultimately an invitation from the president for the FCC to organize speech online in his favor. The FCC shouldn’t take that bait. We should refuse to update Section 230 as the president directs in the executive order because we have a First Amendment and because updating the law like this belongs in Congress.”
And, Rosenworcel as Chairman could easily work with O’Rielly as a Commissioner, even if they don’t see eye-to-eye on some issues.
“O’Rielly has not just been my colleague, he’s been my friend and someone I’ve worked with extensively on efforts to expand the reach of Wi-Fi in this country,” she told Birnbaum. “What I worry about now with this executive order is that there are ugly consequences for those who speak out against it. When one of my colleagues expressed skepticism that the agency had authority to do everything that the executive order suggested, he shortly thereafter found that his renomination was withdrawn by the president. Stand back, because it looks troubling.”
The wide-ranging interview concluded with Rosenworcel’s thoughts on what she’d like to see from a Biden White House on tech policy.
“I think we need 100% of our households online,” she said. “It needs to be a national policy — 100%, nothing less, because everyone needs to have access to affordable and reliable broadband. Without it, every other goal we have in the next few years is going to be difficult to reach. And there’s no individual, household, business or community that will have a fair shot at success in the digital age without it. We need a 100% policy. We’ve got to reach everyone no matter who they are or where they are.”
