Gigi Sohn, President Joe Biden’s pick to fill the vacant seat on the five-member Federal Communications Commission, was supposed to get a vote in the Senate Commerce Committee on Wednesday during an executive session of the committee starting at 10 a.m. ET. But the vote on her nomination was pulled ahead of the meeting as a key Republican on the committee, Sen. Roger Wicker of Mississippi, has expressed concerns about a potential conflict of interest.
If Sohn manages to make it through the committee and get approved by the full Senate, her confirmation would pave the way for the restoration of Obama-era net neutrality protections and for the agency to act on other matters.
Sohn has attracted opposition from some Republicans, who’ve painted her as an extreme partisan. Sohn, who co-founded the public interest group Public Knowledge and advised former FCC Chair Tom Wheeler, has been a longtime supporter of net neutrality rules, privacy protections and diversity in media ownership.
Nominated to the FCC in October, Sohn had her confirmation hearing before the Senate Commerce Committee in December, but she has been waiting for more than a month for the committee to hold a vote. In January, Wicker, the ranking member of the committee, called for a new hearing on Sohn to look specifically at her time on the board of a nonprofit called Locasat, which streamed broadcast TV signals and was shut down after losing a copyright infringement lawsuit mounted by major broadcasters.
Wicker, who received a confidential copy of the settlement agreement, said he had concerns that Sohn would be financially liable to companies she would regulate. But a Bloomberg Law article published last week, citing the nonpublic settlement the news agency had reviewed, said that a provision of the agreement released individuals from liability. Sohn signed the settlement agreement on Oct. 27, the day after Biden nominated her as an FCC commissioner.
Because of this opposition, every Democrat on the committee is needed to vote in favor of her nomination to move it to the full Senate, according to a spokesperson for commerce committee chair Sen. Maria Cantwell of Washington. On Tuesday it was announced that Sen. Ben Ray Luján, a Democrat from New Mexico, who serves on the committee, had suffered a stroke last week. While Luján is expected to make a full recovery, according to his staff, he is still recuperating in a hospital in New Mexico.
In his absence, the committee “recalibrated” the list of nominations to be considered during its hearing “to take into consideration the need for all Democratic votes in order to move certain nominees forward.”
Sohn’s confirmation is important, because without her the FCC has been split 2-2 between Democrats and Republicans since Biden took office a year ago. This has left the agency unable to act on controversial issues like media ownership or a vote to bring back net neutrality. If Sohn is confirmed by the Senate, the Democrats will have their majority and will be poised to fulfill Biden’s promise to get net neutrality regulations back on the books. In July, he issued an executive order urging the FCC to restore the Obama-era rules and to take other measures to promote broadband competition, including asking the agency to require broadband companies to provide transparency on pricing.
The next era of net neutrality
Net neutrality is the principle that all traffic on the internet should be treated equally, regardless of whether you’re checking Facebook, posting pictures to Instagram or streaming movies from Netflix or Prime Video. It also means companies like Comcast, which owns NBCUniversal, can’t favor their own content over that of a competitor.
Supporters of net neutrality say rules are necessary to ensure broadband companies aren’t taking advantage of their power over the infrastructure that delivers content to your internet-enabled TVs, laptops, tablets and smartphones. But broadband companies and Republicans in Congress and on the FCC say the old rules gave the agency too much power, stifling broadband investment.
The result for the past decade has been a ping-ponging of federal net neutrality regulations based on the political party in charge.
With a 3-2 majority, restoring net neutrality rules that Republicans dismantled in 2017 will likely be the No. 1 priority on Democrats’ agenda. Chairwoman Jessica Rosenworcel, who’s now in her third term on the FCC, was a commissioner who voted for the 2015 rules. She also voted against the repeal in 2017 and was outspoken about her opposition. Sohn has spent much of her career advocating for net neutrality protections. As an adviser to Wheeler, she helped craft the 2015 rules.
The real question is how far the agency will go in terms of reestablishing the rules. In addition to prohibiting broadband companies from blocking or slowing down access to certain sites or services, the Democrats on the FCC are likely to see re-establishing the agency’s Title II authority over broadband as its most important objective in a rewrite of the rules. Under the 2015 rules, the agency intentionally limited some of that authority in an effort to appease the broadband industry. Now there’s a question of whether the Biden FCC will do the same in writing a new set of rules.
Sohn’s critics worry she’ll push for broader changes, such as rate regulation. Sen. Roger Wicker, a Republican from Mississippi and the ranking member on the Senate Commerce Committee, emphasized this concern during Sohn’s confirmation hearing in December. He said he prefers a light-touch approach to regulation.
Sohn said she agrees that “light touch is better.” But she added that since the repeal of net neutrality in 2017 the FCC has had no authority over broadband. And that’s a problem.
“What I’m concerned about … is that we have no touch,” she said. She added that the net neutrality debate of today is not just about preventing internet service providers from blocking and throttling access to content.
“It’s about whether broadband, which we all agree is an essential service, should have some government oversight,” she said. “And right now it doesn’t.”
But when it comes to concerns that Sohn would push for the FCC to set broadband prices, she gave a clear answer.
“No. That’s an easy one,” she said in response to a question from Sen. Marsha Blackburn, a Republican from Tennessee, about whether she’d support rate regulation.
Though Democrats will be eager to get started, the process to reinstate net neutrality and reestablish FCC authority won’t be quick. Once Democrats gain a majority, they’ll have to issue a notice of proposed rulemaking and open the proposal for public comment. All told, new rules wouldn’t likely be in place for at least a year.
Net neutrality isn’t the only concern that some Republicans have had with Sohn. During her Senate Commerce Committee hearing in December, several Republican senators took her to task for statements she had made on Twitter, including a 2018 tweet in which she questioned whether Sinclair Broadcast Group should have a broadcast license and another tweet in 2020 in which she called Fox News “state-sponsored propaganda.”
“So I’ve got a list of comments here about Fox News,” Sen. Roy Blunt, a Republican from Missouri, said during the hearing. “Are you biased against them?”
She tried to reassure the committee she would be fair.
“I understand they’re concerning to some,” she said. “And anyone who knows me knows I’m pretty direct. But they were made in my role as a public interest advocate.”
Still, it’s clear that Sohn’s long history as an advocate and her position as a founder of Public Knowledge, which pushed for greater FCC authority, has caused concern among Republicans. When she was first nominated, Sen. Lindsey Graham, a Republican from South Carolina, tweeted, “I will do everything in my power to convince colleagues on both sides of the aisle to reject this extreme nominee.”
He called Sohn “a complete political ideologue who has disdain for conservatives. She would be a complete nightmare for the country when it comes to regulating the public airwaves.”
The Wall Street Journal’s editorial board last month said Sohn would use the FCC’s regulatory power “to shackle broadband providers and silence conservative voices.”
But some conservative broadcasters have defended her. Newsmax CEO Chris Ruddy put out a statement saying he supported both of Biden’s nominees for the FCC. One America News Network President Charles Herring also endorsed Sohn.
Ruddy’s endorsement seemed to have some sway with Sen. Ted Cruz, a Republican from Texas, who said at the hearing that he was concerned Sohn’s record suggests she has a “deep antipathy to those with different views.” But he said Ruddy’s endorsement was “an encouraging sign.”
Sohn said at her hearing that she believes she’s “been characterized very unfairly as being anti conservative speech. My record says otherwise.”
It’s a sentiment others who’ve worked with Sohn have also expressed.
“I think there’s this mischaracterization of Gigi,” said Greg Guice, Public Knowledge’s director of government affairs. Guice said he’s known Sohn for 18 years. “She is oriented towards advocating for good policy. She has a very good network of people on both sides of the aisle, and she really listens to both sides.”