The Senate today voted 49-47 along party lines to move forward with an unqualified Trump ally to the FCC for a five-year term. It’s an aggressive move by the GOP experts say will not only help Trump attack free speech online, but could mire the Biden FCC in partisan gridlock for years. A final vote is expected later Tuesday.
Trump pick Nathan Simington has no experience whatsoever when it comes to telecom or consumer protection.
What Simington does have is the willingness to pursue Trump’s heavily-criticized plan to use the FCC to undermine Section 230 of the Communications Decency Act, a law groups like the Electronic Frontier Foundation say is essential to protecting free speech online.
While Trump claims attacking the law will thwart the nonexistent “censorship” of Conservatives on social media, the real goal appears to be to thwart the policing of disinformation by social media giants. But experts have spent months pointing out in elaborate detail how attacking the law will result in corporations being more likely to censor user content, not less.
It’s a dumb idea opposed by a broad, bipartisan coalition of experts. And while Simington’s effort to attack the law will be an uphill climb in the wake of Trump’s defeat, even Conservative telecom policy experts say Simington could make a mess of the court system as it tries to deal with lawsuits related to social media content moderation.
But there’s another reason the GOP is rushing to appoint a new Commissioner during the transition: the telecom industry wants to mire the agency in partisan dysfunction during the Biden administration, preventing the reversal of hugely-unpopular Trump FCC policies like the attack on net neutrality or the erosion of media consolidation rules.
By law, the party that wins the White House enjoys a partisan 3-2 Commissioner advantage and gets to choose the agency head. But last August, Trump fired Republican FCC Commissioner Mike O’Rielly for mildly criticizing his plan to attack Section 230. With O’Rielly fired and Ajit Pai leaving January 20, that leaves the FCC with a 2-1 Democratic majority in the new year.
Consumer groups say the GOP plan is to rush to appoint Simington, then block the Biden appointment of any new Democratic FCC boss. Gridlocked at 2-2 commissioners, the agency will find its consumer protection authority crippled in the new year.
Worse, Democratic FCC Commissioner Jessica Rosenworcel’s term expires at the tail end of next year, meaning it’s possible the GOP could block her replacement as well, leaving the GOP with a 2-1 FCC majority in 2022—despite losing the 2020 Presidential election.
Given Biden’s first act on the campaign trail was to hold a fundraiser hosted by Comcast, there’s certainly no guarantee the new administration will be tough on big telecom. But there’s a wide consensus among experts and consumer groups that the administration aims to restore net neutrality and take a tougher stance on consumer protection during Covid.
That’s something it can’t do if it lacks its election-earned majority, the entire point of the telecom-backed gambit. Uninformed or misinformed consumers will then blame the Biden FCC for not doing more to protect the American consumer, a story that’s likely to play out across numerous regulatory agencies courtesy of the GOP.
“Confirming Nathan Simington to the FCC during this critical time would jeopardize the agency’s ability to function, resulting in painful consequences for consumers who rely on broadband -- and that means everyone,” Greg Guice, Government Affairs Director at Public Knowledge said in a statement. “An indefinite deadlock just can't be the right answer during a pandemic.”
The GOP plan doesn’t work if Republicans lose the Georgia runoff races and control of the Senate. Telecom policy expert Harold Feld also told Motherboard that even should the Biden FCC face GOP-induced gridlock, the agency won’t be entirely powerless to protect consumers.
For example, the FCC could withdraw its support of the DOJ’s lawsuit against California for passing net neutrality rules, undermining telecom’s quest to leave both federal and lawmakers powerless to protect consumers from telecom monopolies.
Feld also said the FCC’s Democrats could still launch an investigation into the cable industry’s sale of personal subscriber data in violation of federal law, opening the door to a potential broader inquiry into the widespread abuse of broadband user location data, though penalties would be restricted until a Democratic majority is restored.
But Feld said that if the GOP remains intent on playing dirty, the Democrats can and must be more creative and aggressive in thwarting the efforts.
“Stop even routine functions until a Democratic majority is restored to the Commission,” Feld suggested. “Suspend all streamlined application processes. Stop all spectrum auctions, even those already scheduled. Shut down even routine license transfers and license modifications. Nothing gets done that does not directly impact public safety.”
Unless Democrats are willing to engage in more creative and aggressive responses to GOP obstructionism, it’s a problem that will just keep repeating itself, Feld argued.
“Republicans will replicate these tactics at the FTC, FERC and every other agency for as long as they can get away with it,” he said. “Biden, Schumer and Pelosi must give an explicit greenlight to the next FCC Chair to use maximum pressure on industry and Republicans to break the stalemate, or expect to see this pattern played out across the Biden Administration.”
Update: This article has been updated to explain that the Senate voted to move forward with the appointment of Simmington but that it is not yet final.