The White House has yanked its nomination to give GOP Federal Communications Commissioner Mike Oâ€™Rielly another term at the agency, offering no explanation as to why.
Oâ€™Rielly is one of the three Republicans on the FCCâ€™s five-member commission, having held the role since 2013, and has usually been a reliable backer of conservative policy priorities like the elimination of net neutrality rules and deregulation. Heâ€™s currently in his second term, which ends by January 2021 if he isnâ€™t reconfirmed, whether or not a replacement is ready. According to Bloomberg, a notice sent to the Senate â€” which votes on nominees to the FCC commission â€” on Monday retracted his name. The White House provided no further information.
Of the likely reasons to withdraw Riellyâ€™s nomination, one is that Senator James Inhofe placed it under an indefinite hold at the end of July over the FCC commissionâ€™s unanimous vote to approve a Ligado Network plan to build a low-power, nationwide mobile broadband network in the L-band spectrum. That vote drew significant backlash, including from the U.S. military and major airlines, over fears that Ligadoâ€™s network could interfere with Global Positioning System receivers using adjacent parts of the L-band spectrum. It was also reportedly contentious within Donald Trumpâ€™s administration. As TechDirtâ€™s Mike Masnick noted, however, all five commissioners voted in favour of approving the Ligado proposal, so itâ€™s not clear why Oâ€™Rielly would be specifically made an example out of beyond convenience.
Another simpler, more migraine-triggering reason, though, might be that the White House thinks Oâ€™Rielly is standing in the way of its effort to have the FCC investigate and punish tech companies for major talking points â€” and threaten those companies with the loss of key Section 230 liability protections.
Experts told Gizmodo the order is a slipshod legal mess that dramatically overstates the FCCâ€™s legal authority and is likely totally unenforceable, and it would also undermine Section 230, the part of the Communications Decency Act which allows companies like Facebook, Twitter, and YouTube to host user-generated content without being sued into oblivion over every libelous post or moderation decision. Yet at least one commissioner, rabidly pro-Trump Brendan Carr, is on board with the order, while GOP chairman Ajit Pai has declined to lean one way or the other. Oâ€™Rielly has conversely voiced his opposition. He said in mid-June that he had â€œdeep reservationsâ€ about the order and more openly alluded to â€œpurveyors of First Amendment gibberishâ€ in a speech in late July.
Oâ€™Rielly made comments last week that drew attention of some White House and industry officials. He said â€œthe First Amendment protects us from limits on speech imposed by the government â€” not private actors â€” 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.â€
He added that â€œlike it or not, the First Amendmentâ€™s protections apply to corporate entities, especially when they engage in editorial decision making. It is time to stop allowing purveyors of First Amendment gibberish to claim they support more speech, when their actions make clear that they would actually curtail it through government action.â€
The FCC is nominally independent from the White House, but thatâ€™s the kind of talk that this administration gets real angry about. More evidence for the Section 230 order explanation comes by way of former FCC official Gigi Sohn, Bloomberg wrote, who tweeted that Oâ€™Rielly â€œstuck to his principles even as it may have cost him another term as Commissioner.â€ Space Newsâ€™ sources also characterised the withdrawal as due to Oâ€™Riellyâ€™s stance on the order.
I understand this nom was pulled because @mikeofcc wasn't supportive of Trump's illegal & unconstitutional request that @FCC interpret #Section 230. Give Mike props – he stuck to his principles even as it may have cost him another term as Commissioner. https://t.co/AqmZgC7Cwd
— Gigi Sohn (@gigibsohn) August 3, 2020
On the other hand, itâ€™s not clear that the Senate will move to approve another nominee anytime soon, and the move could easily backfire. If Oâ€™Rielly decides to bounce, that might leave the FCC commission at a deadlock between Pai and Carr on the GOP side and Democratic commissioners Jessica Rosenworcel and Geoffrey Starks on the other. Even if the White House manages to install a more pliable nominee, that doesnâ€™t address any of the gaping legal flaws in the executive order.
The FCC didnâ€™t respond to Bloombergâ€™s request for comment.