How Did Nathan Simington's FCC Nomination Hearing Go?

On November 10, the Senate Commerce Committee convened to consider the nomination of Nathan Simington for Federal Communications Commissioner. President Donald Trump nominated Simington after withdrawing the re-nomination of current FCC Commissioner Michael O'Rielly this past summer. Simington has been a Senior Advisor for the National Telecommunications and Information Administration (NTIA) at the Department of Commerce since June of 2020.  Before joining the NTIA, Simington was Senior Corporate Counsel for Brightstar Corporation in Miami, Florida, where his portfolio included wireless credit, mergers and acquisitions, tower services, operations and logistics, data security, and regulatory compliance.

Simington said his regulatory philosophy would be guided by four principles: 1) regulatory stability, which he said meant placing the public interest first, but also meant not chilling communications development with regulations that are too restrictive ; 2) universal connectivity, on which he said progress has been made that the country can be proud of; 3) public safety and national security, which includes reconciling spectrum conflicts and challenges, and protecting the public interest in the midst of ongoing spectrum commercialization, and 4) serving the public interest. "If I am confirmed, I will be a strong advocate for the Commission’s public interest mandate functions, and I will commit to having an open door and top-notch responsiveness to concerns from Congress and the public," he said.

In his role at the Department of Commerce, Simington has played a role in Trump's executive order that required the National Telecommunications and Information Administration to file a petition for rulemaking with the FCC requesting that the commission expeditiously propose regulations to clarify section 230 of the Communications Decency Act, which gives social media networks immunity from civil liability for how they moderate their networks. Simington also worked on the subsequent petition filed at the FCC. Simington said he had had conversations with the White House about Section 230 when he was being considered for the FCC nomination.  The action is controversial in no small part because many legal experts believe the FCC has no authority in section 230 -- and no role to play in policing online speech. 

Senator Richard Blumenthal (D-CT) said he was concerned that Simington was being sent to the FCC to execute a Trump order targeting social media. During the hearing, President Trump tweeted, "Nate Simington, a very smart and qualified individual, is having his Senate hearing today. Republicans will hopefully confirm him to the FCC ASAP! We need action NOW on this very important nomination!!" Sen. Blumenthal noted, “It’s not that often that the president of the United States tweets about a nominee” appearing before a committee during the actual confirmation hearing. 

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. Senate Commerce Committee Chairman Roger Wicker (R-MS) tried to help the nominee out by noting Simington's willingness to rely on that advice. Chairman Wicker also highlighted Simington’s explanation that he was not in on the drafting of the NTIA policy, simply the editing and “blocking and tackling” of the issue, which he said meant he had only written about 5-7% of the petition. 

Sen. Blumenthal said he will put a hold on the nomination until and unless Simington commits to recusing himself from any decision on the fate of Section 230. 

Senators also quizzed Simington on spectrum policy. Senator Mike Lee asked if the NTIA or a federal agency should be able to veto an FCC decision to license a spectrum band for a commercial purpose. Simington said it’s indeed a major question. “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. He noted the FCC's Ligado decision. “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.

A fun time was had by all.

The Senate Commerce Committee will markup up a mix of legislation and nominations at an executive session on November 18. Simington's nomination is not on the agenda.