It’s a bit unusual when any FCC nomination becomes controversial — and even a bit strange when Tucker Carlson seizes on it.
But that is what has been happening in recent months in the case of Gigi Sohn, a longtime public interest advocate whose nomination to fill a vacancy on the commission is scheduled to come to a vote on Wednesday before the Senate Commerce Committee, with the chance that she also will face a tight confirmation vote on the Senate floor.
Most nominations sail through with little attention, but Sohn has become a bit of a lightning rod on the right for some past tweets, yet it’s the telecom and broadcast lobby that has raised issues with her nomination, resulting in a delay that could end up being consequential.
With the commission split 2-2 between the parties, the FCC is deadlocked to take up more controversial items in areas like media ownership and net neutrality. Sohn co-founded the public interest group Public Knowledge, which through the years often has been at odds with media conglomerates on a host of issues, particularly in criticism of the concentration of power among TV broadcasters, internet providers and cable companies, as well as on other issues involving copyright.
Sohn’s vote also could mean more scrutiny for media mergers, with every expectation that the Democrats’ FCC majority, like the FTC and the Justice Department, will take a harder line toward consolidation.
Industry lobbyists have walked a fine line between not publicly opposing her nomination — after all, what if she is confirmed? — but privately raising issues that have delayed it.
Andrew Jay Schwartzman, senior counselor at the Benton Institute and longtime media public interest advocate, said that a risk is that by the time there is a full FCC, some of the thornier issues will be pushed into next year, when Republicans may have a majority in at least one House. That would give them greater oversight and more opportunity to pushback at agency actions.
Typically, the five-member FCC is in place after a president’s first year in office. But in a move that puzzled public interest groups, the Biden White House waited until October before announcing Sohn’s nomination, along with that of Jessica Rosenworcel as the permanent chair. Rosenworcel became the first woman to hold the post as permanent chair and, if confirmed, Sohn would be the first openly LGBTQ person to serve on the commission.
Sohn’s nomination ran into turbulence about two weeks after Biden’s announcement, when the Wall Street Journal ran an editorial claiming that she had “suggested using the FCC’s power over broadcast licensees to censor conservative outlets.”
The Journal was referring to a tweet that Sohn sent out in 2018, after conservative leaning Sinclair Broadcast Group abandoned its proposed merger with Tribune Media. “Today is a good day for every American who believes that diversity of voices in the media is better for our democracy,” she wrote, while the WSJ noted that she also urged the FCC to “look at whether Sinclair is qualified to be a broadcast licensee at all.”
What the Journal left out, however, was that it was the FCC, then with a Republican majority, that effectively sidelined the merger, as there were serious questions as to whether Sinclair had shown a “lack of candor” in its merger documents, something that can lead to serious FCC sanctions. Sinclair did not lose its licenses, but it paid a $48 million fine to settle the issue and other investigations.
Still, the WSJ editorial was apparently enough to trigger Republicans like Sen. Lindsey Graham, who liked to the piece and vowed to “do everything in my power to convince colleagues on both sides of the aisle to reject this extreme nominee.” Carlson, too, weighed in, along with other conservative commentators.
Sohn, however, had allies on the right: Top executives from One America News Network and Newsmax issued statements in support, citing their experience working with her as they opposed the Sinclair merger.
That helped temper some criticism on Capitol Hill, but Sohn’s nomination was still delayed. Later in November, just days before her confirmation hearing, the National Association of Broadcasters publicly raised the issue of one of Sohn’s past gigs as a member of the board of Locast. The non-profit streaming service provided streams of broadcast signals, but suspended operations after networks sued for copyright infringement and a federal judge ruled in their favor.
At her confirmation hearing, Sohn said that she would have “no hard feelings” toward the networks, but would still work with the Office of Government Ethics to make sure she had no conflicts.
Yet the top Republican on the committee, Sen. Roger Wicker (R-MS), still sought to delay her nomination even further this month, citing concerns that Sohn would be financially liable because of a settlement agreement that Locast reached with the broadcasters. The terms of the agreement were outlined last week in a Bloomberg Law story, which reported that TV networks settled for about $700,000, a fraction of a potential $32 million judgment. According to the report, Sohn, who signed the agreement the day after her nomination was announced, also was released from liability along with Locast executives. Later in the week, Sohn wrote in a letter to the FCC that if confirmed, she would recuse herself on issues of broadcast copyright and retransmission consent, something that the National Association of Broadcasters said resolved their concerns.
Those policy fights, however, pale in comparison to net neutrality, or rules that internet providers treat all traffic equally. When she served as counselor to FCC Chairman Tom Wheeler during Barack Obama’s second term, Sohn was a champion of those rules and of the means to give them some teeth: by classifying internet providers like Comcast, Verizon and AT&T as common carriers. The Trump-era FCC rolled back the rules, and there has been every expectation that a Democratic majority would move to restore them. A key Senate vote may be that of Sen. Kyrsten Sinema (D-AZ), who has not backed the common carrier approach to net neutrality, stirring the ire of party activists and public interest advocates.
Even with that uncertainty and as the Journal editorial page has continued weigh in against Sohn, some public interest advocates were a tad more optimistic last week on the prospects for her confirmation. “I am feeling pretty good about it,” said Evan Greer, director of Fight for the Future, who noted that Sinema has not blocked other Biden nominees and doubts that she would move to scuttle Sohn, an historic choice, and one that will end the FCC’s deadlock in the midst of the pandemic.
Many Republicans will likely oppose Sohn, but all things considered, her confirmation hearing was relatively restrained compared to those for some of Biden’s other nominees. Even Sen. Ted Cruz (R-TX) told her that he was “comforted” after talking to Chris Ruddy, the CEO of Newsmax.
Schwartzman, who hired Sohn in the 1980s to work as staff attorney for the public interest group Media Access Project, said that “people underestimate the degree to which Gigi has good relations with Republicans on the Hill.” He noted that her nomination also has drawn the backing of Gary Shapiro, the president of the Consumer Technology Association, and Preston Padden, the former chief lobbyist for The Walt Disney Co. and Rupert Murdoch’s News Corp., the parent company of The Wall Street Journal.
Wheeler told Deadline that Sohn was a “principled person interested in how we can come together and resolve things, rather throw barbs at each other.” Her delayed nomination has kept the FCC in a deadlock, but it did give her a chance to meet with more lawmakers, he noted. “I think time has worked to Gigi’s advantage,” he said. “The more people who know who the real Gigi is, the better it is for Gigi and the better it is for the Senate.”
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