Trump Nominates New FCC Commissioner

Trump nominates NTIA official who helped write White House’s social media order. He hopes to to push through Twitter/Facebook crackdown

Adapted from an article by Jon Brodkin, Sept 16, 2020 | Original Ars Technica article here.

FCC Commissioner Michael O'Rielly speaks at a conference while FCC Commissioner Brendan Carr and Chairman Ajit Pai look on.

Enlarge | Federal Communication Commission Republican members (L-R) Brendan Carr, Michael O’Rielly, and Chairman Ajit Pai participate in a discussion during the Conservative Political Action Conference on February 23, 2018, in National Harbor, Maryland.

President Donald Trump today nominated one of his administration officials to serve on the Federal Communications Commission in an attempt to push through his proposed crackdown on social media websites.

Trump announced the nomination of Nathan Simington, who is currently a senior advisor in the National Telecommunications and Information Administration (NTIA). Simington "played a significant role in the agency’s social media regulation agenda," as The Verge reported last week when news broke that Trump was considering Simington for the FCC position.

Simington would replace Republican Michael O’Rielly, who apparently angered Trump by saying that the FCC must uphold First Amendment speech protections "that apply to corporate entities, especially when they engage in editorial decision making."

O’Rielly’s comments signaled that he isn’t likely to support the Trump administration petition, submitted by the NTIA, that asks the FCC to reinterpret Section 230 of the Communications Decency Act in order to limit social media platforms’ legal protections for hosting third-party content when the platforms take down or alter content they consider objectionable.

Simington’s confirmation process is not likely to be a quick one. The Senate, which handles the confirmation process, is doubtlessly cognizant of the impending election and is likely to prioritize the vacancy left on the Supreme Court following the passing of Justice Ruth Bader Ginsburg. Democrats are also likely to be critical of Simington’s efforts to change the way social media companies curate content, as well as the timing of the nomination following the withdrawal of O’Rielly’s nomination.

If Simington is not confirmed by January, a potential second-term President Trump would need to renominate him. If former Vice President Joe Biden is instead elected, he would have the option of letting the nomination expire and renominating O’Rielly or selecting a different candidate.


Section 230 of the Communications Decency Act, which was passed in 1996, says an “interactive computer service” can’t be treated as the publisher or speaker of third-party content. This protects websites from lawsuits if a user posts something illegal, although there are exceptions for pirated and prostitution-related material.

Sen. Ron Wyden (D-OR) and Rep. Chris Cox (R-CA) crafted Section 230 so website owners could moderate sites without worrying about legal liability. The law is particularly vital for social media networks, but it covers many sites and services, including news outlets with comment sections — like The Verge. The Electronic Frontier Foundation calls it “the most important law protecting internet speech.”

It’s increasingly controversial and frequently misinterpreted, however. Critics argue that its broad protections let powerful companies ignore real harm to users. On the other hand, some lawmakers incorrectly claim that it only protects “neutral platforms” — a term that’s irrelevant to the law.

"Simington had a hand in drafting Trump’s May executive order encouraging the Federal Communications Commission to rethink how Section 230 of the Communications Decency Act protects social media platforms from liability for the content it hosts," according to The Washington Post.

Trump had nominated O’Rielly to another five-year FCC term in March but withdrew the re-nomination after O’Rielly’s comments. Simington’s nomination would need approval from the Senate. O’Rielly could serve on the commission through the end of 2020 if the Senate doesn’t act on the nomination before then, but he would have to leave if Simington officially gets the job. O’Rielly’s FCC term technically expired in June 2019.

Trump needs three votes: Trump, who is angry about Twitter and Facebook’s treatment of his posts, needs three votes on the five-member FCC to get the NTIA petition approved. The two Democrats oppose it, saying the petition amounts to the FCC becoming the president’s "speech police."

Trump has the support of Republican FCC Commissioner Brendan Carr, who has explicitly and repeatedly supported Trump’s social media crackdown and criticized Twitter for adding a fact check to Trump’s claims that mail-in ballots will be "substantially fraudulent."

The question mark is Chairman Ajit Pai, who hasn’t weighed in publicly on the Trump administration petition. Pai is taking public comments on the petition and called for a "vigorous debate." Trump’s willingness to replace O’Rielly suggests that he could try to do the same with Pai if the chair doesn’t do the White House’s bidding.

If Joe Biden wins the presidency, Democrats would retake the FCC majority. Pai could stay on the FCC if Trump wins re-election, but FCC chairs usually step down at the end of a presidential term even if the White House hasn’t changed hands. A few details complicate matters — Pai’s term extends until mid-2021, and he could continue serving through 2022 if no replacement is nominated and approved by the Senate. But if Trump gets a second term and Pai doesn’t leave of his own volition, Trump would have a chance to replace Pai once Pai’s term officially expires in mid-2021.

During the Obama administration, Pai claimed that the White House orchestrated the FCC’s imposition of net neutrality rules and said, "We shouldn’t be a rubber stamp for political decisions made by the White House." Trump is taking a much more direct role in trying to set FCC policy by replacing O’Rielly, but Pai has not publicly made the same criticism of Trump that he made of President Obama.