New FCC commissioner’s arrival signals gridlock early next year

The Senate’s confirmation of Nathan Simington to the Federal Communications Commission (FCC) on Tuesday guarantees a 2-2 partisan deadlock once Ajit Pai steps down as chairman when President-elect Joe Biden takes office.

Democrats and digital rights groups worry that Republicans will try to block any Biden nominee for FCC chairman, effectively hamstringing the agency and delaying the expected reimplementation of Obama-era net neutrality rules.

A GOP victory in just one of the two Senate runoffs in Georgia on Jan. 5 would give Republicans the votes needed to keep the FCC split at two commissioners from each party, making it difficult if not impossible for Democrats to push through any divisive policies. While Biden could elevate one of the two Democrats to FCC chair, a three-vote majority would still be required to implement new rules and regulations.

Even more worrisome for Democrats and their allies is what’s on the horizon. When Democratic Commissioner Jessica Rosenworcel’s term ends at the end of next year, Republicans could gain a 2-1 advantage if a GOP-controlled Senate rejects Biden’s picks.

Simington’s confirmation this week was pushed through quickly after his nomination by President Trump, who tapped the senior adviser at the National Telecommunications and Information Administration (NTIA) after withdrawing support for Republican Commissioner Mike O’Rielly.

O’Rielly’s nomination to serve another term was pulled shortly after he expressed opposition to Trump’s executive order targeting Section 230 of the Communications Decency Act, which gives online platforms liability protection for content posted by third parties and allows them to do good-faith content moderation.

Simington played a key role in drafting the NTIA petition for Section 230 to be reinterpreted, as required by an executive order from Trump.

“The purpose of confirming this nominee, very simply, is to deadlock the commission and undermine the president’s ability to achieve the mandate that the American people have given him and his administration going forward,” Sen. Richard Blumenthal (D-Conn.) said on the Senate floor Tuesday, referring to Simington.

It’s unclear whether Pai will take action on Section 230 before stepping down, but either way several Democratic priorities will be stymied after his departure.

Critics have also zeroed in on how a 2-2 commission could make it very unlikely that the net neutrality rules are reimposed.

While the new Democratic chair could use delegated authority to bypass a commission vote on expanding or enforcing current rules, they would not be able to reimplement the rules that would allow the FCC to go after companies that discriminate against online traffic.

“There’s important work to be done, first and foremost restoring Title II authority for broadband,” Gaurav Laroia, senior policy counsel at Free Press Action, said at an event Monday, referring to the designation needed for net neutrality.

“That’s the clincher that leads to all the other good things the agency must do to make broadband more affordable for everyone … prohibit broadband shutoffs during the pandemic and restore protections against any unjust and unreasonable practices by these broadband companies.”

A deadlocked commission could also mean delays to spectrum auctions and expanding rural broadband access via the Rural Digital Opportunity Fund.

Beyond Section 230, Simington’s position on any key issues that the commission deals with — broadband subsidies or media ownership rules — are unclear.

“Typically, commissioners are pretty steeped in the FCC subject matter,” Greg Guice, government affairs director at Public Knowledge, told The Hill. “Here people are wondering what the qualifications are.”

Although several trade groups released statements congratulating Simington for his confirmation, one industry source told The Hill that he was not who they would have picked.

“We’re not thrilled with tying the agency up because we think there are major priorities that sometimes still continue to split on a partisan basis,” the source said. Simington’s confirmation was unusual in the first place, given that historically nominees to the committee are paired with someone from the other party.

“Moving this nominee without that Democratic pairing, I think, is contrary to what we’ve usually operated under in good governance,” Senate Commerce Committee ranking member Maria Cantwell (D-Wash.) said Tuesday. “Every member of this body should be concerned about setting a precedent and what it’ll mean in the future, if we don’t have essential consumer protections and oversight on this important — this important institution.”

Concern about the FCC’s efficacy under the Biden administration could be for not if Democrats manage to tie up the Senate, where Vice President-elect Kamala Harris would be cast the tie breaking vote on any 50-50 votes. Otherwise, Republicans will have the upper hand after successfully pushing through Simington’s confirmation.