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Gigi Sohn Defends FCC Nomination From 'Unfair, False' Attacks

FCC nominee Gigi Sohn at Senate confirmation hearing
(Image credit: C-SPAN)

Gigi Sohn used her written testimony for her second Federal Communications Commission nomination hearing in the Senate Commerce Committee to try and reset the process while vigorously defending herself from attacks based on her offer to recuse from some broadcast (and cable) related issues, criticism she said was “unrelenting, unfair and outright false.”

She also pointed out that she had had support from Republicans as well as hundreds of thousands of citizens and that she is nominated to a commission seat, not the chair who controls the agenda.

According to a copy of her testimony for the February 10 hearing, she will tell the committee she wants to “reintroduce herself.” 

Also: ISPs Have Issues with Sohn Recusal

“I’ve been a public interest lawyer for over 30 years, working towards one goal — ensuring that all Americans have access to affordable, open, and robust communications networks, be they broadcasting, cable or broadband,“ she wrote. “During that time, I have lined up on the same side, and other times in opposition, to every regulated industry. I’m an advocate for the public — it’s what I do. If I’m confirmed I would be the first public interest advocate to sit on the FCC.“

But she also wanted to make it clear where she thought her attackers were coming from. 

“It’s about some wanting to stop the FCC from doing its important work ensuring that everyone in America has robust broadband regardless of who they are, what their income is or where they live, as mandated by the Bipartisan Infrastructure Law,“ she said. ”It’s about stopping the FCC from ensuring that the media is diverse and serves the needs of local communities. It’s about stopping the FCC from ensuring that our networks are resilient when the next disaster hits so that the public stays connected and safe. And it’s about stopping the work Congress, including all of you and your predecessors, have charged this important agency with doing.”

She said deadlocking the FCC helps only a handful of huge corporations, but hurts the American public, which needs the agency to make hard decisions.

Currently, the FCC is deadlocked with two Democrats and two Republicans, so it can really only tackle issues on which there is bipartisan agreement. That does not include net neutrality or broadcast ownership rules.

Sohn‘s first hearing in December appeared to go better than expected with Republicans, given her past progressive stands and criticism of Fox News Channel. But Republicans started to push back — likely pushed themselves by industry players — and the committee did not hold a vote before year-end. The nomination had to be resubmitted, which it was in January. Sen. Roger Wicker (R-Miss.), ranking member of the committee, called for a second hearing on her nomination but Sen. Maria Cantwell (D-Wash.), chairwoman of the committee, was instead planning to hold a vote on her nomination last week before Sen. Ben Ray Luján (D-N.M.) suffered a stroke and there were not enough Democratic votes to approve Sohn, so her nomination was pulled from a vote.

With Luján out, Cantwell granted Wicker's request for a second hearing and Sohn signaled she was ready to face that gauntlet a second time. “I have and will continue to answer each and every one of your questions with complete honesty, and to the best of my knowledge,” she said. But she tried to answer some of those questions before they were asked. Here are those answers in full:

“First, the Locast settlement. As press reports have made clear, I have no financial liability stemming from the lawsuit and indeed, I never did from the day I joined the Sports Fans Coalition, NY (SFCNY) Board. This wasn’t a settlement agreement that I negotiated — SFCNY negotiated it, and with the full and eager consent of the network plaintiffs, set the amount to be paid as $700,000 plus SFCNY agreeing to turn over Locast’s used equipment to them. Why didn’t I mention this number in my response to Senator Wicker’s questions for the record? Because the confidential settlement agreement barred me — as well as the network plaintiffs and SFCNY — from mentioning the terms of the agreement in writing. This was a fact that whoever leaked the agreement to the press conveniently omitted.

“Also omitted was the fact that the enforceable term sheet setting forth the particulars of the settlement was signed on October 12, two weeks before I was nominated for this position. That term sheet is expressly referred to in the settlement agreement. On October 12, when the settlement between the networks and SFCNY was signed by their representatives, I had no idea whether or when I would be nominated.

“I took very seriously my duty to keep the terms of the settlement agreement confidential. But others did not and exploited my inability to defend myself. Now freed by the public disclosure of this information, despite a court order, confirming all of the terms of the settlement including the duty not to discuss them in the press, I’m here to answer the baseless rumors that have swirled around this issue.

“Second, I’ll address my voluntary recusal, which I undertook because of concerns raised at the December 1 hearing and QFRs by members of this Committee about my involvement with Locast. The recusal is narrowly tailored and tied to my personal participation in a 12-year-old Petition for Rulemaking the organization I represented filed seeking changes to the retransmission consent regime, a docket that remains open. There is precedent for such a voluntary recusal — in 1998, then-chairman [William] Kennard recused himself from a Fairness Doctrine-related docket when he discovered he had signed a pleading in that docket as an NAB intern. See Radio Television News Directors Ass’n v. Federal Communications Commission, 185 F.3d 872,878 (DC Cir. 1999).

“As experts have noted, my recusal is voluntary, temporary, extremely narrow and concerns business unlikely to come before the full FCC. But in no way does it open the door to every other industry seeking a recusal for every position I and Public Knowledge have ever advocated. Such a result would be perverse, and probably would prohibit anyone — not just public interest advocates and academics — who has taken any public position on telecommunications and media policy from serving on the FCC.”

The “open the door” reference was to some associations, including NCTA – The Internet & Television Association, and USTelecom, which have suggested that if Sohn is recusing from some broadcast decisions she has advocated for, she should also recuse herself from other issues — such as net neutrality rules she stumped for as a top aide to FCC chairman Tom Wheeler. Wheeler himself would be one of those who arguably should have been prohibited from serving on the FCC under Sohn's example, given that he had formerly headed NCTA and CTIA.

Sohn said a court had recently rejected the suggestion that past positions were disqualifying. She cited “a case involving an effort to recuse a senior government official,” then quoted from a court decision in Facebook‘s effort to force Federal Trade Commission chairwoman Lina Khan to recuse herself from any decision on how to prosecute the commission's antitrust case against the social media giant because she has prejudged the issue before joining the commission. Khan is a veteran critic of concentration and anticompetitive market power and was the lead counsel on a House antitrust investigation into Google, Facebook, Amazon and Apple that concluded that those companies “had captured control of key distribution channels and function as internet gatekeepers, including by buying up potential competitors.” ■

John Eggerton
John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.