By a party-line vote of 49-46, the U.S. Senate on Tuesday confirmed Nathan Simington to fill a Republican seat at the Federal Communications Commission. The move sets up a 2-2 deadlock that could paralyze any decision-making by the Commission, starting on Inauguration Day when current Chair Ajit Pai will exit and the new administration names its interim chief.
Simington will serve a term that extends until June 30, 2024.
Senate Democrats had been hoping to convince some GOP lawmakers to wait on confirming Simington until President-elect Joe Biden nominated a Democrat to fill Pai’s vacancy. But in an increasingly partisan Washington where President Trump was pushing Senators to install his pick, no Republicans were willing to break ranks.
Traditionally the Senate has paired FCC commissioner nominees together, even going so far as delaying a vote to keep Democrat Jessica Rosenworcel on the Commission in 2016 when her term expired and there was no Republican nominee to pair with her. She later returned to the FCC after an eight-month absence once she was paired with Commissioner Brendan Carr. It is a parliamentary nicety that could be invoked by Senate Majority Leader Mitch McConnell (R-KY) if Republicans maintain control of the chamber. That would delay approval of Biden’s nominee in order to obstruct the new President’s media and telecom plans and stymie efforts to push through any rollback of the Trump agenda.
Senate Commerce Committee Chairman Roger Wicker (R-MS) said Simington’s confirmation will ensure a “balanced FCC” and “continued light-touch regulatory approach” when it comes to net neutrality rules. “I look forward to working with him to advance U.S. leadership in 5G, expand access to broadband, and secure our nation’s communications networks,” said Wicker.
Simington is currently a senior advisor at the National Telecommunications and Information Administration and it is not clear whether he will be sworn-in before or after Thursday’s planned FCC meeting. If he waits, it would be the last for Commissioner Michael O’Rielly who currently holds the seat. O’Rielly has been at the FCC since 2013. President Trump withdrew his re-nomination for a new term at the Commission in August after O’Rielly expressed doubt about the FCC’s role in regulating social media platforms.
Simington was given a warm welcome from Republicans at the FCC following the vote. Commissioner Brendan Carr, the remaining Republican holder, said last week he liked the idea of a deadlock at the FCC to prevent any radical change of policies. “Once he is sworn in, I look forward to working together with him and my other colleagues on the Commission on common sense policies that will advance the public interest,” said Carr.
‘Shut Down’ The FCC
The National Association of Broadcasters took a middle-of-the-road approach to what became a highly partisan confirmation, congratulating Simington on his new job. “We look forward to working with him and his colleagues on policies that enable broadcasters to best serve their communities at a time when local broadcasters’ role to educate and inform Americans has never been more important,” said NAB President Gordon Smith in a statement.
But other groups in Washington were less generous.
Free Press Action VP Matt Wood called Simington’s confirmation “a cynical Republican ploy” to deadlock the Biden FCC. “The whole point is to prevent a duly elected new administration and its appointees from getting to work,” said Wood.
Harold Feld, Senior Vice President of the public interest group Public Knowledge, suggests one way for the Biden FCC to break the deadlock and get its majority is to “shut down the agency” until Republicans approve a third Democrat.
“While this sounds like an industry dream, this would quickly devolve into an industry nightmare as the necessary work of the FCC grinds to a halt,” said Feld. In a blog post, Feld said the “total war” war between Democrats and Republicans creates an ability for the new FCC chief to use their authority over the agency’s bureaus to push back and pressure anyone standing in the way of a full Commission. That includes a Media Bureau that stops processing any potential station sales. “The Chair of a deadlocked FCC could simply freeze all mergers and acquisitions in the sector until Democrats have a majority,” said Feld.
If that does not work, Feld suggests the FCC could go “on strike” and slowly stop doing more and more of its work until industry lobbyists push Senate Republicans to confirm a third Democrat. “The only way for President-elect Biden and Democrats to work with Republicans is to show them at the outset that they can be just as destructive to Republican interests and constituencies as Republicans are to Democratic interests and constituencies,” he said.