President Trump’s FCC Nominee Grilled on Section 230 During Senate Confirmation Hearing

November 10, 2020 — Members of the Senate Committee on Commerce, Science, and Transportation grilled President Donald Trump’s proposed nominee to the Federal Communications Commission, Nathan Simington, on his stance on the FCC’s jurisdiction to interpret Section 230, during a nominations hearing on Tuesday.

While there were two other nominees for federal agency’s present to testify, members of the Committee directed the majority of their questions to Simington, which he mostly attempted to deflect, saying he needed more internal information to answer.

“During your time working at the National Telecommunications and Information Administration, you effectively acted as an arm of the president,” said Sen. Richard Blumenthal, D-Conn., highlighting Simington’s active involvement in crafting the Commerce Department’s petition to the FCC to force the agency to re-interpret Section 230 of the Communications Decency Act.

“Trump’s tweet makes it clear what he expects from you, which I think should deeply trouble us all,” said Blumenthal, referencing the president’s tweet to Committee Chairman Sen. Roger Wicker, R-Mississippi, and others, before the hearing, which called for them to act now on Simington’s “important nomination” by confirming him to the FCC as soon as possible.

Sen. Richard Blumenthal, D-Conn., during the hearing

Many doubted Simington’s nomination would be confirmed by January, but Tuesday’s hearing introduced a new sense of urgency behind the nomination. The tweets-in-real-time promotion by Trump seemed raise the specter pushing a confirmation – as with the Supreme Court – that, at least in the president’s mind, would bear upon decision-making in the wake of the election.

“The FCC should remain free from political interference,” said Blumenthal, adding that the agency may diminish its independence and become a tool of the outgoing president for the next 70 days.

Simington said he has not had discussions with White House about Section 230

Simington said early on in the questioning session that he supports the FCC’s jurisdiction to clarify Section 230 rulemaking, as proposed by Chairman Ajit Pai in mid-October.

“I do think Section 230 needs to be reformed,” said Simington. He said that he has not had any discussion with the White House on Section 230 legislative proposals.

While Blumenthal demanded that Simington commit to not voting on Section 230 rulemaking, Simington said he believed that such a pledge would be premature to make. However, Simington did promise his first action if nominated would be to talk the issue over with the FCC’s ethics counsel.

Simington promised to work to maintain a “free and open internet” in response to a question from Sen. Ted Cruz, R-Texas, questioning his views on what Cruz called “censorship” by big tech companies. He maintained that censorship is “primarily not the concern of the FCC.”

During his opening statement, Simington committed to four values he intends to defend, if confirmed: Regulatory stability through vigorous competition, universal connectivity, national security, and public interest.

While Simington said he would fight for universal connectivity and the public good, he refused to commit to extending the FCC’s temporary interpretation of the E-Rate Program, which is currently enabling educational institutions to use federal funds to increase the internet access available to students who have been sent home.

“I’m troubled by your lack of specificity on expanding the E-Rate Program,” said Blumenthal in response.

Withdrawl of Michael O’Rielly’s nomination and background of Simington

Before his nomination, Nathan Simington was a senior adviser at the Commerce Department’s National Telecommunications and Information Administration, the president’s policy arm for telecommunications policy.

In addition to his work at NTIA, Simington previously worked at the law firms of Mayer Brown, Kirkland and Ellis, and Chapman and Cutler.

Simington was nominated on September 16 to fill a vacancy after the White House withdrew Commissioner Michael O’Rielly’s nomination to serve another term at the FCC.

President Trump withdrew O’Rielly’s nomination on August 3, after the commissioner made comments expressing doubts over proposals that the FCC target social media companies for the way they regulate content.

If confirmed, Simington would fill the seat that will be vacated by O’Rielly, who has been on the commission since 2013. Both are Republicans, but O’Rielly told C-SPAN in July the he held deep reservations over proposals to target social media platforms for the way that they curate their content.