The Senate voted on Dec. 8 to confirm Nathan Simington, a Republican nominee to the Federal Communications Commission, filling a soon-to-be-vacant seat that will give Republicans a second seat on the commission in 2021.
The confirmation of Simington, which came by a vote of 49-46, increases the possibility that the FCC could be deadlocked next year when President-elect Joe Biden's administration takes control of the White House. Republicans on the commission currently hold a 3-2 majority. However, current Republican Chairman Aijt Pai has said he is leaving in January 2021. Biden's administration is now almost assuredly going to begin with a 2-2 split on the commission. Policy experts believe this split could remain in place for months, if not longer.
As President, Joe Biden will have the ability to select the next chair of the commission and fill open seats with nominees, but those nominees will need to be confirmed by a Senate that could be controlled by Republicans.
Such a scenario would prevent Democrats from acting on partisan items, such as restoring net neutrality protections, until the deadlock is broken.
"I think the purpose of confirming this nominee, very simply, is to deadlock the commission and undermine the president-elect's ability to achieve the mandate that the American people have given him and his administration going forward," said Sen. Richard Blumenthal, D-Conn., in a Senate floor speech prior to the vote on Dec. 8.
Blair Levin, a former FCC chief of staff who now works as a policy advisor at New Street Research, said in a Dec. 7 note to investors that "the effort to confirm Simington is unlikely to represent an effort to merely delay a Democratic majority by only a few months and may lead to the Democrats never controlling the agency."
Simington has drawn scrutiny from Democrats for his work as senior adviser at the National Telecommunications and Information Administration, an agency within the Department of Commerce principally responsible for advising the president on telecommunications and information policy issues. During his tenure there, Simington helped draft a petition focused on amending a key liability shield for online platforms.
The petition, which was mandated under a controversial social media executive order signed by President Donald Trump, asks the FCC to review and clarify certain legal protections provided under Section 230 of the Communications Decency Act, a piece of legislation that protects internet platforms from civil and criminal liability for content created and posted by users. It also enables those platforms to moderate content posted on their sites, so long as those efforts are taken in good faith.
FCC Chairman Ajit Pai has said he intends to move forward on the matter, but it remains unclear if he will act before the presidential transition.
An item related to the petition is not on the agenda released for the FCC's December open meeting.
Simington was nominated to fill the seat of current Republican FCC Commissioner Michael O'Rielly, who was in the reconfirmation process for another term when his nomination was abruptly withdrawn in August. The five-year term expires in 2024.
Trump did not give a reason for withdrawing O'Rielly's nomination, though some political observers believe the commissioner's comments appearing to suggest opposition to the president's social media executive order played a part.
During Simington's confirmation hearing in November, Blumenthal asked him to recuse himself on Section 230-related issues given his work on the NTIA petition. Rather than commit to recusing himself, Simington said he would consult the FCC's ethics office on how he should approach the issue.
The Senate's Dec. 8 vote to confirm Simington came on the same day the Trump administration notified lawmakers that it intends to veto a large piece of defense policy legislation, in part because it does not make "meaningful changes" to Section 230.