For more than a year, President Biden’s nomination of Gigi Sohn to the Federal Communications Commission (FCC), has been stalled in the Senate. On Feb. 14, the Senate Commerce, Science, and Transportation Committee held its third hearing on her nomination, and it was largely a rinse and repeat of previous hearings.
Since her initial nomination in October 2021, some Republicans on the committee have objected to Sohn, who was a key advisor to former FCC Chairman Tom Wheeler, and headed the left-leaning Public Knowledge think thank from 2001 to 2013.
The at-times contentious hearing adjourned without a vote by senators on Sohn’s nomination. Given the makeup of the Democratic-controlled committee, however, the nomination will likely clear the committee and head to the Senate floor for consideration.
Last year, Sohn’s nomination was also voted out of committee, but stalled on the Senate floor and never received full consideration.
For as long as the nomination remains stalled, the net result for the Biden administration and the FCC is a 2-2 split among Republican and Democratic commissioners that deprives Democrats of the 3-2 majority normally enjoyed by the party that controls the White House, and less leeway for FCC Chairwoman Jessica Rosenworcel to pursue her agenda.
Older Objections Persist
At this week’s hearing, committee Ranking Member Ted Cruz, R-Texas, reiterated concerns from the previous hearings over a possible conflict of interest regarding Sohn’s time on the board of Locasat, a nonprofit that streamed broadcast TV signals and later shut down after losing a copyright infringement lawsuit. Sen. Cruz said he has concerns that Sohn didn’t step down from the board of Locasat even after she was being considered for a nomination to the FCC.
Additionally, Sen. Cruz raised concerns over a settlement between Locasat and major broadcasters over streaming rights. The settlement, agreed to days after President Biden announced Sohn’s nomination to the FCC, was smaller than would be typical, he said. In line with the earlier nomination hearings, Sen. Cruz raised concerns over whether Sohn’s nomination to the FCC played a role in the settlement, as well as the nominee’s openness in discussing terms of the settlement with the committee.
Republicans have also raised concerns over Sohn’s behavior on social media, specifically Twitter. In response, Committee Chairwoman Maria Cantwell, D-Wash., pointed out that the majority of tweets flagged by Republicans weren’t tweets written by Sohn, but rather retweets and likes.
“We all should be accountable,” Sen. Cantwell said. “I don’t know that any of the people up here could have any job if we looked at all of their tweets and retweets. To me, that’s not the issue.”
Sohn rebuffed attacks from the Fraternal Order of Police that she supported Edward Snowden, and said she believes he is a “Russian asset.”
After questioning on her support for law enforcement gaining access to encrypted data, Sohn said she does support law enforcement gaining access to data, so long as they abide by the First and Fourth Amendments. “I don’t think that’s a radical position at all,” she said.
Responding generally to Republican attacks on her resume, Sohn said, “I think it is important to say that when somebody is on the board of an organization, it doesn’t mean they agree with everything the organization does.”
Democrats See Industry Concerns Fueling Conservative Objections
As in her previous confirmation hearings, Sohn and Democrats on the committee maintained that Republican objections have less to do with Sohn’s resume and more to do with a desire to keep the FCC politically deadlocked, and thus leaving the agency less likely to tackle more controversial issues like media ownership or net neutrality rules.
“Fundamentally, this position remains vacant because the companies that are lawfully subject to oversight by the FCC don’t want a watchdog,” said Sen. Ben Ray Lujan, D-N.M., who chairs the Subcommittee on Communications, Media, and Broadband. “They don’t want to be regulated and these companies have spent an immense amount of money and influence to keep this position vacant.”
Sohn was aligned with Sen. Lujan’s belief that companies under the purview of the FCC are fueling Republican objections.
“I believe deeply that regulated entities should not choose their regulator,” Sohn said during the hearing. “Unfortunately, that is the exact intent of the past 15 months of false and misleading attacks on my record and my character.”
“My industry opponents have hidden behind dark money groups and surrogates because they fear a pragmatic, pro-competition, pro-consumer policymaker who will support policies that will bring more, faster, and lower-priced broadband and new voices to your constituents,” she said.
Sen. Cantwell added she believes Republicans are objecting due to industry concerns that Sohn presence on the FCC could lead to decreased industry revenue. The senator said that if an FCC with Sohn as a member is able to deploy affordable broadband “anywhere,” that could lead to affordable broadband being deployed “everywhere.”
“So, I think there’s probably billions of dollars at stake here and that is why the vitriol is coming at you,” the senator said.
Proxy Fight Over Net Neutrality
On specific policy positions, Sen. John Thune, R-S.D., took issue with Sohn’s support of Obama-era Net Neutrality rules, which would regulate the internet and its providers as a public utility. Net Neutrality rules were reversed during the Trump administration when Ajit Pai – a Republican – chaired the commission.
In response to Sen. Thune’s comments, Sen. Cantwell said that opposition to Sohn’s nomination, at least in part, amounts to a “proxy fight over net neutrality.”
“While I think that the commission has every right to deal with net neutrality, I think [for] me personally, that Congress is the best place to deal with that issue ultimately,” Sen. Cantwell said. “Because, whatever the FCC does ends up probably in a legal dispute.”