President Trump’s nominee to replace Commissioner Michael O’Rielly at the FCC, Nathan Simington, was the center of attention during a nominations hearing Tuesday.
Simington, a former executive of Brightstar and senior adviser at the Commerce Department’s National Telecommunications and Information Association (NTIA), appeared before the Senate Committee on Commerce, Science, and Transportation. Two other nominees – Greg Autry to be CFO of NASA and Daniel Huff as assistant secretary of the Department of Commerce – also gave testimony.
But most of the questions were directed at Simington as lawmakers wanted to know his stance on Section 230 of the Communications Act and the FCC’s jurisdiction to interpret it. Section 230 is seen as a way to reign in social media; FCC Chairman Ajit Pai in October announced his intent to move forward with a rulemaking to clarify the meaning of Section 230.
Senator Richard Blumenthal, (D-Connecticut), said he was concerned that Simington was being sent to the FCC to execute a Trump order targeting social media. “It’s not that often that the president of the United States tweets about a nominee” appearing before a committee that very afternoon, which Trump did on Tuesday, Blumenthal said.
O’Rielly’s nomination to serve another term at the FCC was pulled presumably because he expressed concerns about regulating social media content. “The FCC cannot be simply an instrument of political policy or bullying,” Blumenthal said.
Simington described his role in drafting the Section 230 petition as a minor one, helping with editing and public relations. Once it became clear he was to be considered for the FCC position, he ceased active work on the matter. He said if confirmed, he would consult the FCC’s ethics counsel about the issue and abide by their recommendations as to recusing himself from a vote.
5G & spectrum management
Simington also was asked about mapping for broadband subsidies, getting broadband to low-income and other students during the pandemic and support for telemedicine.
Senator John Thune (R-South Dakota) said he believes any effort to nationalize 5G would have an adverse effect on the country’s ability to win the race to 5G and asked the nominee if he had concerns about the idea of nationalizing 5G.
Simington said he supports the long-standing auction and commercialization regime that has been legislated by Congress and if confirmed, he would certainly abide by the will of Congress on this point.
“It’s unclear to me how a U.S. government network could be commercialized, legally speaking… Spectrum is not a network and so far, I have heard no proposals about building nationalized fiber, backhaul, towers, and as such, I’m not sure that the prospects of a so-called nationalized 5G are as real a threat as they are obviously an apparent one,” he said. “But of course, that doesn’t mean that we should create uncertainty in the market by leaving the issue out there.”
Senator Mike Lee, (R-Utah), said a serious issue involves the dysfunctional inter-agency process overseeing the management of spectrum. The FCC handles commercial spectrum bands and the NTIA handles government spectrum bands. Should NTIA or a federal agency be able to veto an FCC decision to license a band for a commercial purpose?
Simington said it’s indeed a major question. There have been conflicts over spectrum that led to the need for legislative solutions, and different positions have been asserted by different agencies. “Coming up with a more robust memorandum of understanding to address this exact point would be highly efficient in helping the agencies resolve conflict,” he said.
What if the Department of Defense (DoD) cites national security as a reason that a license shouldn’t move forward?
Simington noted that Ligado was 5-0 decision by the FCC. “We find ourselves in a little bit of a legal tangle,” with the DoD saying Ligado’s use of the spectrum threatens the military’s GPS. “I think that this is a regrettable state of affairs and there’s no way” to resolve it through the system as the agencies’ standards are in conflict, which is why a better inter-agency process is needed.
Next FCC chair?
Even though a new Democratic administration will come in with the election of President-elect Joe Biden, the nomination appears to be moving forward. Meanwhile, plenty of speculation has occurred about how the FCC will look under the Biden administration.
The new chair will be a Democrat, and whether that will be current Commissioner Jessica Rosenworcel or someone else is unknown. It’s possible that former Commissioner Mignon Clyburn, who was the acting chair for several months in 2013, could be asked to return as chair, but it’s also not known if she wants the job.
The chair of the FCC typically leaves a couple of days before the inauguration of a new president, according to Blair Levin, senior fellow at the Brookings Institution and policy analyst at New Street Research.
Both Rosenworcel and fellow Democrat on the commission Geoffrey Starks issued statements on Tuesday calling on the FCC to abide by a call from lawmakers Frank Pallone Jr. and Mike Doyle to pause controversial activity during the transition. Starks noted that it’s long-standing commission practice that, upon a presidential transition, the agency suspends its consideration of any partisan, controversial items until the transition period is complete.