Lawmakers in the Senate appear to be gearing up to push through telecom lawyer Nathan Simington's appointment to the Federal Communications Commission during the lame duck session.
On Wednesday, the Senate Commerce Committee is scheduled to vote on Simington's nomination. A vote by the full Senate could quickly follow.
If he is approved, the Republicans could outnumber Democrats 3-2 in the FCC at the start of President-elect Joe Biden's term -- a situation that could hamper his agenda, which includes restoring net neutrality rules.
Current FCC Chairman Ajit Pai's term won't expire until June of next year, but chairmen traditionally step down when a new president is sworn in. However, even if Pai follows that tradition, the agency could be left evenly divided between Republicans and Democrats until Biden can appoint a new commissioner.
Simington, currently a senior adviser at the Commerce Department's National Telecommunications and Information Administration, is probably best known for helping to draft a controversial petition for rules that could weaken Section 230 of the Communications Decency Act -- a 24-year-old media law that undergirds the modern web.
Section 230 protects web publishers from liability when users' posts are defamatory or otherwise unlawful. It also protects companies from lawsuits for decisions about how to treat users' posts, including moves to suppress them. The First Amendment also shields companies from decisions about content moderation, but Section 230 can offer companies an easier path to victory when they're sued over moderation decisions.
The NTIA this summer asked the FCC to issue regulations that could tie companies' legal protections to content moderation policies. Many legal observers have said the FCC lacks that authority, noting that Section 230 doesn't task the agency with crafting rules. Nonetheless, earlier this year Pai said he plans to move forward with potential regulations.
The NTIA brought its petition in response to an executive order by President Trump, who has repeatedly criticized tech companies for allegedly suppressing conservative views -- despite an absence of proof.
At a Senate hearing earlier this month, Simington downplayed his role in drafting the NTIA's petition, saying he only worked on around 5%-to-7% of the document. But it emerged this week that Simington was pushing behind the scenes for a crackdown on social media.
In June he reached out to Fox News, in an attempt to persuade conservative commentator Laura Ingraham to back the idea that the FCC should regulate social media, according to Politico.
“Any additional support we might be able to obtain could help to get the FCC on board more quickly and thereby ensure a freer, fairer social media landscape going into the elections this fall,” he reportedly said in an email sent to a Fox News employee.
News of Simington's behind-the-scenes efforts drew fast criticism from Sen. Richard Blumenthal (D-Connecticut), who had previously threatened to place a hold on Simington's nomination.
“FCC nominee Nathan Simington’s pitch to Fox News & Laura Ingraham demonstrates he was willing to bully the very agency he’s been nominated to join & do the electoral bidding of the Republican party,” Blumenthal tweeted this week. “Simington must explain himself immediately.”