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FCC’s Nathan Simington: From the Prairie to the Capital

FCC member Nathan Simington
Nathan Simington, formerly an official with the NTIA, speaks during his Senate confirmation hearing. (Image credit: Commerce.Senate.gov via screenshot)

Nathan Simington got the unexpected nod from President Donald Trump last fall to join the Federal Communications Commission, a nomination he said he was surprised to receive but is clearly determined to make the most of. 

In this exclusive interview, his first as FCC commissioner, the former National Telecommunications & Information Administration official talks about his road from rural (and urban) Saskatchewan to a seat on the FCC, outlines his regulatory philosophy, pushes back on criticism from Hill Democrats and explains his take on the hot-button debate over Section 230 of the Communications Decency Act, the legal provision that protects social media platforms from liability for what their users post. Here’s an edited transcript of the conversation. 

B+C: Briefly tell us how you got from a rural community in Saskatchewan, Canada, to the Federal Communications Commission.

Nathan Simington: My family has always split its time — six months in each place — between my family farm in Kincaid, Saskatchewan, which you will have trouble finding on a map because it only has two or three hundred people, and Saskatoon, which is one of the principal cities.

On one hand, I certainly spent a lot of my life living in the country. But I was also fortunate to have access to great schools and opportunities in my urban home town and therefore to experience a variety of things.

I originally moved to the United States in 1999 when I was offered a scholarship to a college in Wisconsin. I went back to Canada for a couple of years for grad school, but returned to the United States in 2003, and I guess this time it stuck.

My background was originally in academia. I was planning to become a professor. But along with a lot of people between 2006 and 2008 [in the economic meltdown] when there were a lot of changes in society generally, I decided to try something else. I received my green card in 2007 and after working for a year in the market research industry, I decided to go to law school, which eventually led me here today.

What the future holds for Section 230 remains extremely unclear. That ties into the larger question of how, if at all, the U.S. government is going to choose to regulate social media.

— Nathan Simington

B+C: You were at NTIA for only five or six months before being tapped for this post. What was your role there?

NS: I was the senior adviser in the front office, which means I was working daily with the deputy assistant secretary and assistant secretary to formulate policy and responses on a wide variety of issues. But my primary focuses were wireline issues, spectrum issues and internet governance issues.

B+C: How did you find out you had been nominated to the FCC?

NS: I must say I was surprised. I understand that the White House spoke to a number of people trying to determine who they wanted to nominate. I got a call that they had decided to offer me the candidacy. I think they had been interested in a number of the reforms and interagency cooperation initiatives that I had discussed. Even so, there was a lot to learn and a lot of people to meet with and convince. Somehow that wound up with me being here today.

B+C: Let’s talk about internet governance and Section 230. The Democrats have said that it was your work on that issue [Simington worked on a petition to the FCC mandated by the president] that got you the FCC job. You say the nomination surprised you. Why do you think the president picked you? Was your Section 230 expertise part of the reason?

NS: I would not claim to have been a Section 230 expert when I was hired by NTIA. I developed a certain amount of experience with 230 and knowledge of the related legal and regulatory issues during the course of my appointment there. But, frankly, you could find any number of people in August or September of 2020 who would have been much more prominent in the Section 230 world than I was. I had never published on it and never participated in a single conference on it. 

Until as recently as October, I don’t think the position had even emerged that Section 230 was within the FCC’s regulatory competence. Obviously I have become identified by both parties with the Section 230 controversies. To the extent there is any basis for that identification, I want to point out that it is now moot. 

Whoever is the new chair or acting chair will be the person with the agenda-setting ability and Chairman [Ajit] Pai has said no 230 item is going to come up during his tenure.

B+C: Do you anticipate it coming up during the tenure of his successor?

NS: That remains to be seen. Of course, President Trump has been closely identified with Section 230 and advocated on that, but let’s not forget President-elect [Joe] Biden has also called for repeal of 230. And beyond calls for repeal, I think there are significant 230 reform processes on both sides of the aisle.

So, what the future holds for Section 230 remains extremely unclear. That ties into the larger question of how, if at all, the U.S. government is going to choose to regulate social media. I suspect this is going to be the focus of legislation for some time to come as Congress hashes out how, if at all, it wants to address the question.

B+C: You told the senators at your confirmation hearing that you would check with the FCC ethics office about whether you should recuse yourself from any FCC item related to Section 230, as Sen. Richard Blumenthal (D-Conn.) argued you should. Did you, and what did they say?

NS: Yes, the ethics office at the FCC is not generally in the business of offering advisory opinions without a particular controversy in front of them, so they didn’t want to give me blanket advice. But they did say that on the basis of what they had seen and on the basis of any proposed actions they did not see any basis for recusal and, in the event that an item were to come up for voting, they would revisit that and issue a definitive decision.

B+C: So, do you think social media needs regulating?

NS: On the larger question of a social media regulatory regime, I don’t think the FCC has any broad power in that area. As far as whether I would like the FCC to take up a Section 230 rulemaking, I think we would need a very detailed consultative process to determine whether, in the end, that was wise. 

The arguments for and against are both significant. The argument ‘for; is essentially that the case law has gotten ahead of the statute and has caused unintended consequences that go beyond whatever the intent of the statute was and are now posing problems for the public good.

The argument ‘against’ — actually, there are many, but any kind of speech-regulation regime would be facially contrary to the First Amendment. Then, beyond that, there is also the question of how wise it would be to touch 230. Because the FCC may have the power to issue rules on that subject doesn’t mean that it should.

So, I think it would be a long, complicated and bipartisan process to determine the right action at the FCC.

B+C: What is your regulatory philosophy?

NS: Coming from private industry rather than the D.C. telecom bar, I put a lot of emphasis on the effect of capital management on business and the difficulties of doing so in an uncertain regulatory environment.

On my regulatory philosophy generally, obviously the FCC has a mandate from Congress to act in the public interest and the FCC has an obligation to do so and not to allow its judgment to be clouded by other considerations.

As against that, how you implement regulation and how you develop and communicate regulation also matters a great deal. Typically, any kind of corporate initiative will have months or years of lead time, associated capital raises and associated investments, some of which may be non-recuperable, for example, if ground has been broken on a project. Disrupting those unnecessarily is something to be deplored because it is a pure loss to all parties.

In my view, companies can thrive under a variety of regulatory regimes, but the commission has an obligation not to put its thumb on the scale and always to act in the public interest.

As against that, communication with the industrial players and with trade groups is very important, including timely and constant engagement so that they don’t get a misperception of what is coming regulatorily and don’t wind up making investments that are unproductive or, on the other hand, canceling investments that will be productive. 

Nathan Simington

Nathan Simington (Image credit: Commerce.Senate.gov via screenshot)

B+C: Are there particular issues you want to focus on at the commission? 

NS: Absolutely. I am interested in certain public safety questions that I think could be addressed by regulatory reform in the spectrum arena. I’m not ready to talk in any more detail about that, but that is something I plan to work on during my tenure.

In addition, I am interested in the larger question of the relationship between the commission and executive branch agencies. As everyone knows there has been significant conflict between various executive agencies and the FCC. I think this is a completely nonpartisan issue and speaks instead to quality of governance. I am excited to engage with the executive branch agencies on this question and, again, watch this space for more detail.

Finally, I am interested in helping put the pieces together for a successful transition to a 5G economy. The focus here can’t just be on spectrum and it can’t just be on wireless regulation. It has to include a national policy that supports all of the necessary infrastructure, whether that is wired infrastructure or whether that is legal infrastructure in facilitating commercialization and exploitation of spectrum, whether that is integration of other technologies — unlicensed spectrum, or microwave transmission with low-earth-orbit satellites. My point is there are a wide variety of technological and infrastructure integration that’s needed to make the 5G transition happen. 

One last thing that I think needs to be emphasized more in public is that in addition to the consumer benefits of 5G, it is showing much more promise than 4G in industrial and agricultural applications, as well as public-safety applications.

B+C: And no nationalized 5G network?

NS: People talk about national 5G and nationalized 5G quite a bit. I think the suffix makes a big difference. 

Nationalized 5G sounds like moving away from the commercial model. I would strongly, strongly push against that. The commercial model served America very well in the 4G transition and I never hesitate to point out how well our networks have handled the strain of 2020 or how American’s appetite has just grown radically.  So, national 5G is a different question. When you take the suffix off it is not clear that anyone knows 100% what that means. If it means a transition to having a high quality 5G service nationwide supporting both consumer and other applications, then by all means let’s talk about how to do that. If it means a radical change in our model of allocating and licensing spectrum or some other strategy that is going to fix what isn’t broken, then I would have to say that I am against it.  

B+C: What is the best way for the government to promote broadband adoption and should broadband speeds or affordability — including price regulation — be part of that conversation?

NS: That is a great question, which I say because it is a question that is simple to ask but just meditating on it can lead you down a number of paths. 

As far as price regulation for broadband, I think that is a little bit of a dangerous route to go down. Price regulation can be seen as a way of immediately capturing benefits for the consumer because they are able to get more of the upsides of a given infrastructure investment than they would have been able to otherwise. But if it has chilling effects on further infrastructure investment then you can wind up capping the structural ability of that sector to absorb capital and, if that is the case, then that one-time bonus is never going to be repeated.

I think allowing the price to float is only a concern if we think we are getting to a regime of price-gouging. I would have to be persuaded of that pretty vigorously before I believed that was where we are, though, again, I am always open to being shown the argument, and the figures.

As far as other aspects of how to roll out broadband better, I think that it is clear that more Americans have more and better broadband than has ever been the case, and this is true year after year. So, again, this becomes a question of progressing to the end of that and identifying the remaining obstacles.

I am very excited about the proliferation of broadband technologies in just the past few years. LEO (Low earth orbit) satellites were the number two winner in RDOF [the FCC’s Rural Digital Opportunity Fund subsidy auction] and you have heard great things from very remote and underserved communities that suddenly find themselves with broadband where they had nothing prior.

So that is an example no one would have predicted a few years ago. But keeping our thumbs off the scale has allowed investors to find enough confidence in this to make the billions of dollars in investment up front to make it happen.

On the other hand, RDOF has also enabled many small and local companies to engage in buildouts that they otherwise would have been too undercapitalized to take a risk on. 

As far as broadband speeds, it is definitely important to nudge those upwards in terms of what the federal government will support or pay for. The 10/1 that we all accepted as good broadband performance sometime in the past is totally unacceptable.  Well, “totally unacceptable” is a strong phrase. They are not acceptable for funding purposes for many federal programs. I think I can say that without prejudging anything.

So I think the sliding-scale approach in RDOF [higher-speed buildouts have an edge over lower-speed applicants] is a good sign of how to address it. It is better to have something than nothing. I think it strikes a good balance between getting connectivity where it needs to be and avoiding gold-plating and excess capacity construction.

B+C: You have said the public interest must be placed first. How do you determine what that interest is?

NS: Our first obligation is to the well-being of American users and consumers of telecommunications services. As to determining what concrete actions will best carry that out, that is always a tough question and it is always heavily implicated by the facts on the ground.

Ultimately, it is difficult to tie it to a single principle because of the diversity of interests that are likely to be concerned. So, the best thing to do is to have the fullest information possible, always keep an open mind, and always communicate early and effectively.

In some cases, there will be an established base for a technology that the commission is not internally wild about, but those people have a legitimate interest in the technology that they are familiar with and in the regulatory standards around which they build their lives. 

They say that business is war and there are aspects of that where industry is constantly competing for access to spectrum or for access to favorable regulatory treatment. So, you have to respect the first, but also the second and third, order impacts of the decisions you make.

In my view, companies can thrive under a variety of regulatory regimes, but the commission has an obligation not to put its thumb on the scale and always to act in the public interest.

—Nathan Simington

B+C: You talked at your nomination hearing about balancing the rights of television companies as part of the public interest. What did you mean?

NS: Let’s talk about television specifically. You have a hugely dependent base that varies widely in its ability to access other forms of information and entertainment. For example, there are some communities that consider themselves well-served by a well-functioning and secure local broadcaster and where there are very few cord-cutters. In other communities, you have widespread cord-cutting and browsing among a wide diversity of media. So, a regulatory approach that is only based on one is likely to leave the other out in the cold. Or, if we look and the provision of entertainment generally, prejudging the method by which people are likely to consume media is likely to leave you several steps behind the curve. 

B+C: Sen. Blumenthal also said at the vote on your nomination that you lacked the candor and independence required for your position. You were not there to respond, would you like to now?

NS: Yes, certainly. I fully respect Senator Blumenthal and appreciate that he made his concerns known to the public, but I don’t happen to agree. I believe any comments about lack of candor may refer to his question about whether I had participated in a forum sponsored by Americans for Tax Reform. I was struggling to remember whether I had and answered in the negative. I got a call afterwards from someone saying, ‘Don’t you remember that one group where you talked for a couple of minutes, they were an ATR-affiliated group?’

I thought, ‘Goodness, that’s no good at all,’ and sent a correction on the record to Senator Blumenthal within a day or two. So, I don’t believe that there was any other basis for a statement about lack of candor. I don’t believe that was a lack of candor on my part and I don’t believe that anyone was materially misled and that it would have affected the nomination or the substance of the hearing in any way.

As for lack of independence, to the extent that was ever a concern, that was certainly vitiated by the transition of power.

B+C: You have been in the majority for a few weeks, but you will be in the minority soon. How do you view that role: kibitzer, persuader, loyal opposition?

NS: I think there will always be elements of all of those. The job of the commissioner is to be independent. Obviously nominees have to come from one party or the other, and the president is going to exercise his nominating power in a way that is congenial to his party, but I am looking forward to working with Democrats. 

I have been building bridges to Democrats and look forward to continuing to do so. In some cases we’re not going to agree. In some cases I may agree with the Democrats and not the Republicans. In some cases I may chart my own course. All I can promise is to make the best decisions I can possibly make based on the best evidence I can possibly put together and to extend the hand of friendship to anyone and try to persuade and where we can’t persuade one another, we agree to disagree.

B+C: Is that basically an argument for regulatory humility?

NS: I think regulatory humility is very important. So, yes, ‘regulatory humility’ is another way of saying that no regulator can possibly stand in a position of information where they are able to truly make choices for other people except when there is the necessity, just as a court would, of balancing competing interests as best you can discern them.

Generally, in my experience, when regulators have gotten too much in front of the public or have gotten too confident about their ability to know how things will develop, it often ended in tears.

So, the commission has specific mandates in each of these areas and of course has to abide by the will of Congress. But when it starts getting in front of the will of Congress or in front of the consumer market and starts making decisions for the public, I guess that is when I would invoke regulatory humility.

B+C: I believe you were the first one on the commission to weigh in on the siege at the Capitol. What is your take on it and who should be held responsible?

NS: Information is still coming out as to what the violence at the Capitol really was and who the parties were and what their motivations were. I will admit that at first it didn’t seem as serious to me as it did a day later. Of course, now we know the scope and focus and deliberateness of some of the violence and some of the plans that at least some of the protestors had, and it is very chilling. 

As to the motivation, I don’t think I have any special insight, but as a country we have to ensure that we never become subject to mob rule and that we always have peaceful transitions of power.

B+C: Did your status as an immigrant in part compel you to weigh in on the country you chose to immigrate to?

NS: I actually had a number of people ask me, ‘Are you sure you don’t want to go home after all?’ and I would like to push back on that rather hard.\ The United States has obviously had challenges recently and this one is without recent precedent. I think it is worth remembering that in the vigorous democracy of the 19th century in the United States, it was, in fact, common for political disputes to end in violence and you saw the same thing in France and the United Kingdom. I am not referring, or course, to violent revolutions but customary rough conflicts. 

Although it is horrible to see something like this happen in the United States, no country is immune to political violence and it does not vitiate any of the great accomplishments in the United States and it doesn’t make me question my decision to come here at all. It just makes me wish that I could remind all Americans what a great country this is.

B+C: In terms of interagency cooperation, you have talked about getting FCC access to some NTIA data as a way to improve broadband mapping. Are you pursuing that yet?

NS: I haven’t had a chance yet to have those conversations. So far I have focused on getting my staff up and running and ready to handle matters addressed at the first meeting. Once that is over and I am ready to breathe a little bit, I absolutely will be looking to coordinate with NTIA in more detail on a wide variety of things. I have started introductory meetings with NTIA people. Not that the FCC and NTIA don’t already communicate, but I think there is a certain amount that I can do to improve the process, whether that is on mapping or discussion of legal standards in particular issues where the two agencies don’t see eye to eye, I think there are a variety of places where that relationship could improve.

B+C: Should the FCC start taking down some of the sector-specific silos and look at the marketplace more holistically?

NS: Well, it is easy to understand why the silos exist. 

The Telecom Act put up some silos by virtue of treating different technologies differently. But now we are in a period of convergence. If you look at new broadcast [transmission] standards, for example, they are increasingly resembling interactive video-on-demand. On the other hand, if you look at what their competition is, sometimes it is delivered by very unconventional means that didn’t even exist 20 years ago. So, as far as bringing down the silos, that’s challenging because the statute and therefore the regulations are not technology-agnostic.

On the other hand, I think being able to see across the silos can sometimes expose some of their absurdities and help the commission prepare for the future.

B+C: My last question is always, what should I have asked you that you particularly wanted to talk about?

NS: One thing I would love to talk about, and maybe this is also material for future conversations, is the potential for synergies across a wide variety of technologies. I really want to emphasize that when it comes to improving broadband and wireless access, there is not really a clear split technologically the way there used to be in the past. Much of the conversation around broadband assumes wired broadband and it assumes that every wired provider is going to be a monopoly and, increasingly what we are seeing is diversity.

If you look at the convergence of technologies right now, it is, I think, it is a greater spur in the broadband era to thinking creatively about breaking down the silos and looking at the overall impact on the public of a wide variety of technologies and looking at the way that we can look at the public interest across all of those topics without getting bogged down in questions that are increasingly in the rear-view mirror.