The White House yesterday withdrew its re-nomination of Federal Communications Commission member Michael O’Rielly, a Republican who has not supported President Trump’s attempt to punish social media websites for alleged anti-conservative bias.

Trump had nominated O’Rielly to another five-year FCC term in March, and the nomination was awaiting Senate approval. But the White House unexpectedly withdrew O’Rielly’s nomination, “announc[ing] the action Monday in a notice sent to the Senate, which confirms nominees,” Bloomberg reported. “The notice didn’t provide a reason for the decision.”

O’Rielly’s term technically expired in June 2019, but FCC rules allow him to stay through the end of 2020 even if he isn’t re-confirmed by the Senate. O’Rielly has been on the FCC since 2013.

A White House spokesperson declined comment when contacted by Ars. A spokesperson for O’Rielly also declined comment today but said O’Rielly’s office plans to release a statement on the Trump action.

O’Rielly: Constitution protects “editorial decisions”

O’Rielly, a member of the FCC’s 3-2 Republican majority along with Chairman Ajit Pai and member Brendan Carr said in June that he has “deep reservations” that the FCC has the authority to limit social-media companies’ legal protections in the way Trump demanded in an executive order.

O’Rielly expanded on his views in a speech last week, saying, “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. Like it or not, the First Amendment’s protections apply to corporate entities, especially when they engage in editorial decision making.”

Although O’Rielly clarified that his “critique is not in any way directed toward President Trump or those in the White House,” his statement seems to reject the position taken by Trump. His speech came two days after the Trump administration formally petitioned the FCC to reinterpret Section 230 of the Communications Decency Act in a way that would limit social media platforms’ legal protections for hosting third-party content when the platforms take down content they consider objectionable.

While O’Rielly said Trump has a right “to call for the review of any federal statute’s application,” the commissioner also said those reviews are “subject to applicable statutory and constitutional guardrails.” O’Rielly’s comments “drew attention of some White House and industry officials,” Reuters wrote in a story about Trump pulling the re-nomination.

By contrast, Commissioner Carr has explicitly and repeatedly supported Trump’s social media crackdown and criticized Twitter for adding a fact check to Trump’s claims that mail-in ballots will be “substantially fraudulent.” Carr said that “Twitter made the decision to take on the president of the United States in a partisan, political debate and it did so in a really disingenuous way” and is “punishing speakers based on whether it approves or disapproves of their politics.”

Pai yesterday called for a “vigorous debate” on Trump’s executive order as the FCC issued a public notice seeking comments on the Trump administration petition. Pai hasn’t publicly supported or criticized Trump’s petition and hasn’t committed to taking any action beyond issuing the call for public comments.

Senator criticized O’Rielly on Ligado approval

O’Rielly’s re-nomination was approved by the Senate Commerce Committee on July 22 and is awaiting a vote of the full Senate, but it was facing trouble even before Trump withdrew it. Sen. Jim Inhofe (R-Okla.) last week placed a hold on the nomination until O’Rielly commits to voting to overturn the FCC’s unanimous approval of Ligado’s plan for a 5G cellular network. Inhofe backed US military claims that the Ligado plan will interfere with GPS, but the FCC said that a 23MHz guard band, power limits, and other FCC-imposed conditions will prevent interference. Pai said that “painstaking technical analysis done by our expert staff” showed that the Ligado network can be deployed safely.

The Ligado decision doesn’t appear to be the driving force behind Trump pulling O’Rielly’s re-nomination. “According to sources, the decision to pull back the nomination does not appear to be related to Ligado or Inhofe’s hold but was in response to O’Rielly not supporting the Trump administration’s petition that the FCC re-examine Section 230,” SpaceNews reported.

“I understand this nom[ination] was pulled because [O’Rielly] wasn’t supportive of Trump’s illegal & unconstitutional request that FCC interpret Section 230,” Gigi Sohn, a consumer advocate who was an FCC official during the Obama administration, wrote on Twitter. Sohn and O’Rielly have repeatedly taken opposing positions on controversial FCC decisions such as net neutrality rules, but Sohn wrote, “Give Mike props—he stuck to his principles even as it may have cost him another term as Commissioner.”

https://arstechnica.com/?p=1696356