On Monday, August 3rd, the White House withdrew its (re)nomination of FCC Commissioner Michael O’Rielly for another term. This unusual White House action has sparked discussion about the process and rationale for the withdrawal.
FCC Composition. The full slate of FCC leadership includes five Commissioners. The Chair and two Commissioners are of the same political party as the President. The two other Commissioners are members of the other political party.
Appointing Commissioners. When a Commissioner position is vacant, there are dozens (if not hundreds) of people interested in pursuing the vacancy and qualified to hold the position by their political connections and past work experience. Ultimately, the President nominates an individual to fill a vacant Commissioner position and this person must then be confirmed by a majority vote of the Senate.
The three Commissioners in the majority involve significant vetting by the White House, particularly in an election year like this one where FCC issues (e.g. broadband and telehealth) have significant political importance. Commissioner O’Rielly is completing his first full term as a Commissioner and was re-nominated for a second term in a Republican seat by the President on March 18th. His nomination was approved by Senate Commerce Committee on July 22nd.
The Ligado Decision. Late last month, and before the full Senate could consider his nomination, the Republican Chair of the Senate Armed Services Committee, Sen. James Inhofe (R-OK), announced a hold on Commissioner O’Reilly’s nomination. This hold precluded Mr. O’Rielly’s Senate confirmation vote.
Sen. Inhofe initiated the hold because of concerns about the FCC’s April 22, 2020 decision approving applications from Ligado Networks to deploy a low-power terrestrial nationwide network in the L-Band. The FCC’s Ligado decision was contentious and received several objections, including from the Department of Defense and aviation interests concerned about potential interference to the GPS system that is critical to their operations.
Section 230 Petition. As O’Rielly’s nomination was playing out in the Senate, President Trump issued an Executive Order in May. On July 27th, the National Telecommunications and Information Administration (“NTIA”) filed a Petition for Rulemaking with the FCC pursuant to the Executive Order. The Petition asks the FCC to clarify the provisions of Section 230 of the Communications Decency Act of 1996. This Section of the Act generally provides liability protections for companies like Twitter and Facebook from being considered a publisher of third-party content when they remove content for being illegal, violating their terms and conditions, or as objectionable for other reasons. The NTIA Petition asked the FCC to further define the circumstances under which these companies are entitled to the liability protections.
On the same day, Chairman Ajit Pai and Republican Commissioner Brendan Carr welcomed the Petition. The two Democratic Commissioners – Starks and Rosenworcel – expressed concerns and argued that the FCC should not adopt NTIA’s proposal.
Two days later, on July 29th, Commissioner O’Rielly gave a speech as part of The Media Institute’s Luncheon series. Near the end of his speech, he expressed concern about the Petition. “The First Amendment protects us from limits on speech imposed by the government—not private actors—and we should all reject demands, in the name of the First Amendment, for private actors to curate or publish speech in a certain way,” he said. Less than a week later, the White House withdrew his nomination for a second full term.
Next Steps. Commissioner O’Rielly’s term expired on June 30, 2019. By statute, if he is not confirmed to another term, he is allowed to continue serving until the end of the current legislative session or the confirmation of a successor. Though we have heard rumors of President Trump nominating a successor, we believe it’s unlikely any successor could be confirmed by the Senate before the election in November.