The Federal Communications Commissions is set up to be an independent agency but the nomination of who sits on the Commission is an opportunity for the White House to put its stamp on agency policy. That appears to be what has cost Republican Michael O’Rielly a new term. The commissioner, who had become a radio industry ally during his seven-year tenure, has been caught up in the debate over whether the FCC should expand its regulation of the internet.
President Trump issued an executive order in May directing the Commerce Department to petition the FCC to adopt new policies to address what conservatives have said amounts to censorship by social media platforms of their views. “Large online platforms appear to engage in selective censorship that is harming our national discourse,” said the National Telecommunications and Information Administration petition. It also referenced the executive order which complained about online platforms “flagging” content that is deemed inappropriate, a move taken against President Trump personally when he has shared false information about COVID-19 in recent months. The administration argued that social media’s “overarching influence and power” stems from the immunities it enjoys under expansive interpretations of section 230 of the Communications Decency Act. The Commerce Department asked the FCC to re-examine the law, as well as other provisions with the goal of promoting internet diversity and a free flow of ideas, as well as “holding dominant platforms accountable” for their editorial decisions.
Just days after the petition was submitted, the FCC launched a petition for rulemaking on Monday. “Longstanding rules require the agency to put such petitions out for public comment ‘promptly,’ and we will follow that requirement here,” Chair Ajit Pai said. Critics of the administration’s request had urged Pai to ignore it, but he said the public and all stakeholders should have an opportunity to weigh in on the issue. “We should welcome vigorous debate—not foreclose it,” he said.
Pai has not indicated whether he supports regulatory changes, although fellow Republican Commissioner Brendan Carr has said conservatives “should stand for more than nothing” and push for more transparency and accountability of social networks. “One idea is to let consumers turn off the bias filters,” he wrote in a Twitter post.
O’Rielly A Wild Card
The two Democrats on the FCC are expected to oppose any such moves. Commissioner Jessica Rosenworcel has said that while social media can be “frustrating,” efforts to “turn the FCC into the President's speech police” is not the answer. “It's time for those in Washington to speak up for the First Amendment. History won't be kind to silence,” she said.
The wild card had become O’Rielly, who in series of public comments said, as a conservative, he was “troubled” by the idea of the FCC wading into what can be posted online. “I shudder to think of a day in which the Fairness Doctrine could be reincarnated for the Internet, especially at the ironic behest of so-called free speech ‘defenders’,” he said in a speech last week to the Media Institute. “It is time to stop allowing purveyors of First Amendment gibberish to claim they support more speech, when their actions make clear that they would actually curtail it through government action. These individuals demean and denigrate the values of our Constitution and must be held accountable for their doublespeak and dishonesty.”
O’Rielly explicitly said his critique is “not in any way directed” toward President Trump or his administration, but they apparently did not see it that way. On Monday, just hours after Pai met with the President, the White House formally told Congress it was withdrawing its re-nomination request that would have allowed O’Rielly to remain at the FCC until 2024. The White Office didn’t provide a reason for the withdrawal.
O’Rielly had already been facing a hold on a vote in the Senate on his re-nomination unless he pledged to vote to overturn an FCC order that granted permission to Ligado to repurpose spectrum for a terrestrial-based cellular network.
Conservatives Lament Loss
O’Rielly had become an outspoken advocate for radio at the Commission during his tenure and National Association of Broadcasters President Gordon Smith was one of the few in Washington willing to share his thoughts. He called O’Rielly a “sterling public servant” having known the Commission since he was a congressional staffer and Smith served in the Senate. “He is the consummate professional—smart, diligent, honest, and fair,” said Smith.
The move also shows a split among conservatives. The right-leaning advocacy group Freedom Works also went public, calling O’Rielly a “friend of liberty” and an “integral part” of deregulatory actions. “We wish him the best of luck and rest assured that history will look favorably on his time on the Commission,” it said in a tweet. And the conservative think tank Free State Foundation urged Trump to “withdraw his withdrawal” of O’Rielly re-nomination for another term. It said the move “calls into question the integrity of the FCC processes” and it is wrong to “treat a free market, rule-of-law oriented public servant this way.”
If Trump loses his reelection bid, O’Rielly’s vacancy could serve as a gift to a President Joe Biden who would get to appoint a majority on the FCC without having to ask either of the two other GOP commissioners to step down.
O’Rielly remains on the Commission through the end of the current session of Congress. He has so far not made any public comments about Trump’s move. Uncharacteristically neither have any of the other commissioners.