Senate Commerce Likely to Advance Simington Wednesday; Wyden Eyes Hold

Chairman Roger Wicker, R-Miss., is trying to attach a version of his CDA Section 230 legislation (see 2009220064) to the National Defense Authorization Act, he told us Tuesday. “I’m seeking to accommodate the president by getting something in the NDAA concerning Section 230,” he said. Asked if it mirrors the bill he introduced with Senate Judiciary Chairman Lindsey Graham, R-S.C., and Sen. Marsha Blackburn, R-Tenn. -- called the Online Freedom and Viewpoint Diversity Act -- he said he’s seeking “something to that effect.”

Graham told us he’s 100% supportive: “I don’t know” how likely it is to get attached, but “I hope it works.” Sen. Richard Blumenthal, D-Conn., said he doubts it “will happen, but I think it would be a mistake,” calling the proposal “doomed.”

“We’re waiting to hear from one or two more members of” Senate Commerce, but “I’m relatively optimistic” that the committee will be able to advance Simington Wednesday, Wicker told us. Commerce Democrats are expected to unanimously oppose Simington, and at least one hold is likely if he advances to the floor.

“We have the votes” to advance Simington out of Senate Commerce, said senior member Sen. Roy Blunt, R-Mo. The committee would advance Simington 14-12 if all Republican members support him. Senate Commerce GOP leaders already would have scrapped Simington from the Wednesday meeting docket if they were concerned there weren’t sufficient votes to advance him, said a telecom lobbyist who follows Republican deliberations.

Sullivan’s office didn’t comment on whether he plans to support Simington. Sullivan has remained a holdout on Simington since Trump named him in September and said before the Thanksgiving recess he was seeking "commitments” from the nominee (see 2011180064), including on the FCC’s approach to Alaska high-cost USF matters. Sullivan in 2018 temporarily blocked reconfirmation of Commissioner Brendan Carr over the issue (see 1809120056).

Simington's Comments

Senate Commerce released Simington's responses to Commerce members’ questions Tuesday afternoon.

Simington began working on NTIA’s Section 230 petition in June, “about two weeks after I joined” the agency as a senior adviser, he said in his response to questions from Blumenthal and other Commerce Democrats. “I would like to think that I was a valued contributor to the team that produced and managed that petition, but I did not draft the original version either of the petition or of the regulations,” Simington said. “The material in the petition originally drafted by me” spans across six pages of the 57-page document. He again refused to preemptively commit to recuse himself from the Section 230 rulemaking, something Blumenthal pressed for during a November confirmation hearing (see 2011100070).

Simington clarified his role in advocating for the Section 230 petition to media entities, which Democrats have pressed him to explain after media reports that he tried to pitch Fox News’ Laura Ingraham on pushing the FCC to grant NTIA’s petition (see 2011240061). Commerce ranking member Maria Cantwell of Washington said in her questions that the media reports suggest Simington was “less than truthful” when he previously described his Section 230 petition role

“I did not communicate with any other media organization about the Section 230 petition” beyond the email to Fox News, Simington said. “This email was routine advocacy for earned media support and as such was part and parcel of the role I serve at NTIA.” That role included “sourcing and identifying items in the news regarding relevant complaints about the restriction of speech on social media; researching the cost structures, information content, and moderation policies of proprietary online services of the 1990s; reviewing drafts for completeness, consistency, and correctness; and reviewing sources cited in order to ensure that they were characterized fully and correctly,” he said.

“I do not believe the FCC’s approach to universal service in Alaska has provided the predictable and stable funding necessary for providers to build and maintain service in remote, high cost areas,” Simington said in his expected (see 2011300032) response to Sullivan’s questions about RHCP, which Senate Com-merce posted Tuesday afternoon. “Predictable and stable funding is crucial everywhere, but especially to provide service in remote, high cost areas like Alaska.” He wants the FCC to complete its planned review of Alaska’s USF version into next year “in a manner that provides a fair and transparent process and reach-es a reasonable outcome” and believes “additional funding will be necessary to extend broadband to every rural American. Current funding levels will not be enough to get the job done.”

McConnell 'Priority'

A hold by one or more Democrats won’t deter Senate Republicans from pushing to confirm Simington, because Majority Leader Mitch McConnell, R-Ky., views that as “an important priority” for the lame-duck session, Wicker said. A hold would prevent the Senate from confirming Simington via unanimous consent. The chamber could overcome it by a simple majority vote. “It doesn’t take much floor time” to vote on invoking cloture, go through floor debate and have a final confirmation vote, Wicker said. It would be like the Senate’s recent practice for confirming judges, with an “afternoon vote” on cloture “and a morning vote” on confirmation following debate.

McConnell views the Simington confirmation as a way to hinder the FCC in the early days of President-elect Joe Biden’s administration from acting on Democratic priorities like restoring the commission’s rescinded 2015 net neutrality rules, lobbyists said. Simington’s confirmation would ensure a 2-2 party split on the FCC next year after Chairman Ajit Pai resigns Jan. 20 (see 2011130044).

Sen. Richard Blumenthal, D-Conn., told us he’s “hopeful” his threat to place a hold on Simington will at least deter Republicans from seeking a floor confirmation vote. “We’re supposed to vote” on Simington Wednesday, but a likely vote to advance him out of committee “doesn’t necessarily he’ll have a vote on the floor,” Blumenthal said.

Sen. Ron Wyden, D-Ore., who co-wrote Section 230 in 1996, told us he “might” place his own hold on Simington if Senate Commerce advances his confirmation, given the nominee’s views on the statute. “I can’t believe” FCC Republicans “still think that they’re going to rewrite a bipartisan statute” like Section 230, he said.

Conservative groups pushed Tuesday for confirmation, including Americans for Tax Reform President Grover Norquist. Other advocacy groups, including Fight for the Future, Demand Progress and Free Press, mounted a campaign against Simington, urging supporters to call “key senators … and tell them to block the worst FCC nominee in history.”

The Senate can use Simington’s confirmation to “forestall the impending economic harms and damage to deregulatory policies from the last four years,” Norquist said in a letter to McConnell. “While the Senate calendar is tight, spending the necessary floor time to get Simington confirmed to the FCC is the most economically beneficial use of Congress’s time.” A 2-2 FCC “could continue to pursue important initiatives on a bi-partisan basis, but it would be blocked from jamming through partisan initiatives,” Norquist said.

Simington’s ascension “is of critical importance to maintaining a balance of views at the FCC,” said Americans for Limited Government President Richard Manning, Less Government President Seton Motley and other conservative leaders. “If Senate Republicans do not act with haste to confirm Simington, they will be intentionally throwing away an opportunity to ensure the FCC acts with fairness and authority on all issues, including those presented by Big Tech.”