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Thune Won't Concede O'Rielly

Preelection Senate Action on FCC Nominee Simington Considered Unlikely

It’s unlikely the Senate will significantly move forward in consideration of FCC nominee Nathan Simington before the November election, if at all this year, lawmakers and lobbyists said in interviews this week. The White House said Tuesday President Donald Trump intended to nominate Simington, currently a NTIA senior adviser, to the seat held by Commissioner Mike O’Rielly (see 2009150074). The White House formally sent Simington's nomination to the Senate Wednesday. Trump revoked O’Rielly’s renomination in early August (see 2008030072).

Republican senators appeared divided whether to formally end their push for Trump to reverse course and renominate O’Rielly. Some Democrats voiced concerns about Simington’s views on the Trump administration’s push for FCC regulations defining the scope of Communications Decency Act Section 230, given reports he played a role in drafting the executive order that directed NTIA to petition the commission (see 2005280060). Simington’s confirmation prospects may be directly tied to the November election’s outcome, officials said.

The Simington pick appears to all but doom O’Rielly’s chances (see 2009090001) of being renamed if Trump wins reelection, lobbyists said. Senate Majority Whip John Thune of South Dakota and other senior Republicans urged Trump to reverse course and rename O’Rielly (see 2008060062). Some believe O’Rielly has a chance of being rejoining the commission if Democratic presidential nominee Joe Biden becomes president.

Thune, who also chairs the Senate Communications Subcommittee, isn't ready to concede on O’Rielly. “We’ll wait and see” if the Trump administration formally nominates Simington, Thune told us before the nomination was transmitted to the Senate. “I think there are still discussions going on about” O’Rielly and "they ought to take a hard look” at returning him instead. Bringing O’Rielly back “would be the simplest thing to do” and “he’s been a really good commissioner,” Thune said. “Hopefully, at some point, they’ll come to that realization.”

'Difficult' Process

If this administration continues advancing Simington, “obviously we will move forward as well, but I think they have to deal with the reality that it’s unlikely that we can get through this process before” the election, Thune said. “It’s going to be very difficult to get a new commissioner” through the Senate Commerce Committee and “all the due diligence that has to be done” on a new nominee given the limited legislative calendar. The Senate plans to begin its preelection recess just before Columbus Day.

Senate Commerce Chairman Roger Wicker, R-Miss., told us he views the Simington nod as the Trump administration’s final word on O’Rielly. “We made a run at” bringing O’Rielly back, but “the White House decided to go in a different direction,” Wicker said. “So now we’ll do our best to expedite this new nominee.” He hasn’t “scheduled out” a timetable for bringing Simington before Commerce since he’s been aware of Simington’s candidacy only for just over a week.

Sen. Richard Blumenthal, D-Conn., has concerns about Simington based on reports about the intended nominee’s Section 230 views. The issue is one aspect of Simington’s record that’s cause for concern, along with “a variety of other issues that are relevant to his independence, integrity and judgment,” Blumenthal said. Communications ranking member Brian Schatz, D-Hawaii, said he doesn’t know enough about Simington to form an opinion on his nomination.

Simington has been working “on 5G security and secure supply chains” and the American Broadband Initiative since joining NTIA in June, the White House said. He's also NTIA representative to ICANN’s Government Advisory Committee. The White House and NTIA didn’t comment on Simington’s EO role.

Simington is a former senior counsel for wireless distributor Brightstar and was an associate at Chapman and Cutler, Kirkland & Ellis and Mayer Brown. At Brightstar, Simington “negotiated deals with companies across the spectrum of the telecommunications and internet industry,” the White House said. He “spearheaded numerous international transactions in the devices, towers and services fields and forged strong relationships with leading telecom equipment manufacturers.”

O’Rielly acknowledges in written testimony submitted before a planned Thursday House Communications Subcommittee hearing the panel is “likely the last time I will testify before Congress as a sitting member of the Commission.” O’Rielly’s office didn’t comment on whether his statement is a concession that he no longer has a chance of being renominated. O’Rielly earlier tweeted, “­­I extend my sincere congrats to Mr. Simington for selection to join” the FCC “and offer best wishes for a smooth confirmation process and successful term at the Commission.”

There seems to be a great deal of interest in what led to my nomination for a new term being withdrawn,” O’Rielly tells House Communications. “In all honesty, there is no salacious story to report. No demands were made to support any position, and no pressure was applied to take any particular action. I was informed that [Trump] was withdrawing my nomination, as is his prerogative, by a very short phone call. I had no conversations with the White House on withdrawing the nomination prior to that point and none since.” O’Rielly’s reluctance to publicly back the Trump-sought Section 230 petition is considered the main reason for the yank-back (see 2008040061).

'Hard Lift'

Time is running out fast for the Senate to move on Simington, observers noted. The preelection recess means “there are very few legislative days left for a brand new sub-cabinet level nomination to be processed through a Senate confirmation process regardless of who a nominee may be,” said Cooley’s Robert McDowell, a former FCC commissioner. "It is possible that a sub-cabinet level nominee could be confirmed” by the time the Senate adjourns sine die in early January, “but it would have to be one of the highest legislative priorities for GOP Senate leadership."

This choice creates further friction because this is a seat that would otherwise be filled by someone recommended by the Republican leadership,” said Public Knowledge Senior Vice President Harold Feld: “For more than two decades, the president has relied on the recommendations of the relevant party's Hill leadership. Here, Trump is acting unilaterally.” No Republican is likely to openly challenge Trump on the nomination, Feld said. “It does mean that senators are going to be much less enthusiastic about trying to squeeze in time for a confirmation hearing and a confirmation vote.”

Fletcher Heald’s Francisco Montero said it’s “doubtful” anything will move forward on the nomination. “I’m sure the Democrats would love to let President Trump and Chairman [Ajit] Pai stew in a deadlocked FCC resulting from the president’s impulsive and retaliatory withdrawal of the O’Rielly nomination,” he said. “Add to that the fact that O’Rielly was favorite of many on the Hill, to say nothing of various industry segments and I don’t see the incentive to reward that behavior.”

It’s definitely weird timing” since the election is less than two months away, said R Street Institute Technology and Innovation Policy Fellow Jeffrey Westling. “If they wanted to push through a lot of the reforms the FCC wants to do” under Pai, “then either just renominate O’Rielly or let him finish out his term” without a new nominee hanging over his head.

It’s going to be a hard lift in an election year, particularly given that O’Rielly was a popular commissioner” and “coming from NTIA he might get some pushback,” said International Center for Law & Economics Associate Director Kristian Stout.

New Street doesn’t see the “nomination getting through before a new Senate as a combination of limited time, Republican staff opposition and concern about the narrowness of his background and concerns might be hard to swallow for some Republicans,” analyst Blair Levin wrote investors: “It does provide a glimpse into the priorities of the White House for the FCC for a potential second Trump term.”