UPDATED, with information on delayed vote: The Directors Guild of America is urging the Senate Commerce Committee to reject Joe Biden’s nominee to the FCC, citing Gigi Sohn’s past stances on copyright.
The committee was scheduled to take up Sohn’s nomination on Wednesday, but it will be postponed because of the absence of Sen. Ben Ray Luján (D-NM), whose office announced that he suffered a stroke. He is expected to make a full recovery.
The guild sent a letter on Tuesday to its chairwoman, Sen. Maria Cantwell (D-WA) objecting to the choice. In the letter obtained by Deadline (read it here), the DGA’s national executive director Russell Hollander wrote that Sohn’s “long standing record and hostility towards copyright law is inconsistent with the role of the FCC.” He argued that the agency’s role in licensing and regulation of TV, satellite and cable “implicate intellectual property.”
In confirmed, Sohn would give Democrats a majority in the FCC, giving them the votes needed to restore net neutrality rules or take a harder line against media concentration.
But industry lobbyists, often at odds with Sohn when she led the media and telecom public interest group Public Knowledge, have expressed their misgivings to the Biden administration. Sen. Thom Tillis (R-N.C.), an industry ally on issues of copyright, in December urged Biden to withdraw the nomination.
The Motion Picture Association has been publicly silent on her nomination, while other trade groups, like the NCTA- The Internet & Television Association, representing the cable industry, and the National Association of Broadcasters, have expressed concerns but not outright opposition.
Hollander pointed to one of the proposals that Sohn championed when she served as counselor to FCC Chairman Tom Wheeler during Barack Obama’s second term. Wheeler and Sohn saw the proposal, introduced in 2016, as a way to free cable and satellite subscribers from having to pay monthly rental fees for their set top box. The proposal would have required that pay TV providers offer a free app to access the channels, but ran into objections from the MPAA, which said it would be akin to a “compulsory copyright license.” It’s unlikely that the proposal would come up again in that form, as it was sidelined when Jessica Rosenworcel, who now is chairwoman of the FCC, declined to support it.
The White House and a spokesperson for Cantwell did not immediately return a request for comment.
Sohn, whose nomination was announced in October, would be the first openly LGBTQ commissioner if confirmed. In contrast to the process to confirm most FCC nominations, hers has been contentious. The Wall Street Journal has editorialized against her, as has Tucker Carlson. But she’s also gotten support from top executives at conservative news outlets like One America News Network and Newsmax, as well as endorsements from figures like Byron Allen and groups like the National Urban League.
The DGA’s opposition to Sohn contrasts with that of the Writers Guild of America West, which supports it. A spokesperson said in a statement, “Sohn was a key player in the FCC’s adoption of net neutrality rules in 2015 and we are confident she will champion efforts to restore these critical rules. She understands the importance of combatting consolidation in the media and telecommunications sector, is committed to expanding access to broadband, and promises to be an important ally to content creators.”
Chris Lewis, president and CEO of Public Knowledge, said of the DGA letter, “It’s odd to raise a copyright concern when the agency doesn’t have authority over copyright.”
“Our organization has worked to promote balanced copyright over the years that reward artists and promote an open internet where content can be shared and linked to,” Lewis said.
As her confirmation process has dragged out, industry lobbyists also have raised the issue of whether she should recuse herself from certain issues, forcing the FCC into a 2-2 deadlock on certain controversial items.
Shortly before her confirmation hearing in December, the National Association of Broadcasters pointed to Sohn’s past position 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.
Hollander also raised that issue in his letter. “Notwithstanding the federal judgment, Ms. Sohn continued to contend that the Locast app was a public good in her confirmation hearing held last year,” he wrote. “She has never been on the right side of the digital theft debate; doing everything she can to thwart the efforts of the creative community to reclaim rights and revenue.”
In her confirmation hearing, Sohn told senators that Locast transmitted the signals by relying on a copyright exemption for nonprofits, even though the judge eventually said that it was not entitled to it.
Last week, Sohn said that she would recuse herself from issues of retransmission consent and broadcast copyright, something that broadcasters said resolved their concerns.
Earlier on Tuesday, NCTA sent a letter to Cantwell and Sen. Roger Wicker (R-MS) arguing that there was “no explanation” for why Sohn’s recusal singled out broadcast matters, rather than other issues she was involved in while she was at Public Knowledge.
The organization’s president and CEO Michael Powell wrote that “her recusal should logically extend to all matters in which Public Knowledge was active, or conversely none of those activities should give rise to recusal.”
“To be clear, this letter is not written to oppose Ms. Sohn’s nomination,” Powell wrote. “She is a respected and accomplished public interest advocate. However, rather than ensuring impartiality, Ms. Sohn’s targeted recusal has instead raised serious questions regarding transparency together with significant concerns that one industry has been singled out for special treatment to win their support for her confirmation.”
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