As expected, Democratic Federal Communications Commission nominee Gigi Sohn took some tough questions during her Senate Commerce Committee nomination hearing, including about Twitter posts criticizing Fox News Channel, her support for network neutrality rules and her association with shuttered streaming service Locast.
But the tone of the hearing was generally cordial — peppered with some tough exchanges — despite some Republican concerns about the nominee’s policy positions and the tone of some of her advocacy for those positions while not in government service. It didn’t hurt that she said she would prefer Congress resolve the net neutrality issue and said she opposed broadband rate regulation.
For example, Sen. Jerry Moran (R-Kan.) said he was impressed by Sohn’s experience and intellect and that he was pleased by her emphasis on collaborative skills. Sohn pointed out that she had reached out to her Republican colleagues at the FCC — when she was a top adviser to Obama-era FCC chair Tom Wheeler — and that for her, policy differences are not personal.
Sohn handled the grilling skillfully and confidently. It was perhaps less confrontational than the tone of Republican rhetoric before the hearing might have suggested. She conceded her tweets about Fox News — that it was “state-sponsored,” for example — and some of her other statements as a public interest advocate might have been a bit too sharp. But she didn’t back off from them, saying that was part of her job as an advocate. Whatever her opinions, she said, nas a commissioner she would put those aside and look at the totality of circumstances of any particular instance and decide accordingly.
Ranking member Sen. Roger Wicker (R-Miss.) asked Sohn about her support for network neutrality, and another of those sharp comments — that Wicker had spread disinformation about the issue. Sohn said what she had been talking about was the senator’s position that net neutrality rules she supported discouraged investment, because there was evidence that was not the case, and that the rules had no negative impact on broadband investment, something operators themselves told Wall Street.
‘Light Touch’ Is ‘No Touch’
Wicker asked Sohn what bad things had happened under the FCC’s “light-touch” regulatory approach, after the agency under Trump-era chairman Ajit Pai voted to eliminate the Wheeler FCC’s rules against blocking, throttling and paid prioritization. Sohn said there was some evidence of such blocking and throttling, but that the bigger issue was that it was no-touch, rather than light-touch, due to the reclassification of internet service providers as information services under Title I of the Communications Act.
But when asked by Sen. Ed Markey (D-Mass.) whether the FCC has authority to restore classification of broadband as a telecommunications service under Title II of that law, Sohn said she agreed with acting chairwoman Jessica Rosenworcel that it does. “You are an expert, and we need experts,” Markey said.
And while broadcasters have made public their issues with her nomination, Sohn had some nice things to say about them.
“Local broadcasting really is vital to the lifeblood of every community,” she said. “They alone among communications platforms are dedicated to serving local communities, with emergency alerts, local news and local journalism, so I think it's critically important.”
Sohn said she supported legislation to boost local journalism, and thinks the FCC’s broadcast incubator program for radio should be extended to television.
Locast Issues Raised
An issue that was raised in advance of the hearing was Sohn’s role as a director of Locast, which streamed TV-station signals without negotiating payment, asserting a copyring carveout for nonprofits, until a judge ruled it was not entitled to the nonprofit exemption.
Sen. Roy Blunt (R-Mo.) brought up the issue and pointed out that the broadcasters she was praising were the ones that sued to shut down Locast.
Sohn pointed out that it was the networks, rather than stations, that sued, and that as a public advocate she felt using the exemption to stream TV-station signals to people who could not get them otherwise was pro-consumer. But she also pointed out that following the court ruling, “we shut down Locast within days,” that it was in the process of selling its assets — it reportedly agreed to settle the suit for $32 million back in August -— and it “will probably not exist” by the end of the year.
Channeling the late Rep. John Dingell (D-Mich.), Sen. Marsha Blackburn (R-Tenn.) asked for yes or no answers, but unlike most of Dingell’s targets, Sohn answered most of them with one-word answers.
Asked if the Pai commission’s repeal of net neutrality rules in any way stopped the FCC from its broadband deployment mission, she said no. Asked by Blackburn if the FCC was to reclassify internet access under Title II, forbearing from rate regulation, couldn’t a future FCC just un-forbear, she said yes. Asked whether she supported broadband rate regulation, she said no.
Sen. Mike Lee (R-Utah) asked Sohn about the affordability requirement in Biden administration broadband subsidy programs overseen by the National Telecommunications and Information Administration and whether it wasn’t essentially rate regulation. Sohn said that was more in NTIA’s wheelhouse, and she had to think about that a little bit. But she said that affordability did not necessarily equate with rate regulation.
Sohn said she did not support federalizing a 5G wireless network, but was asked by Lee what the difference was between that and the municipally owned broadband she did support. She said she would have to think about that as well.
Another senator who was definitely not in Sohn's camp, but was also not harsh in his criticisms, was Ted Cruz (R-Tex.) who said he had had a good meeting with Sohn, but that he still had "real concerns" with her nomination, specifically in the "context of the growing call from the left for more and more censorship."
He pointed out the FCC has "enormous" power over broadcasters, and is asserting power over Big Tech, which he said Sohn has supported.
He said in her role in the "public space" she has been unabashedly on the left, which he said "can be fine" so long as it is combined with a commitment to free speech, which he pointed out Sohn had said in her prepared testimony was "the lifeblood of our American experience" and "has always been at the core of her work." Cruz praised the commitment, which he said was increasingly rare coming from the left.
But he said her record suggests "a deep antipathy with those of different views." He asked how she would comfort conservatives worried that she would use her regulatory power to censor the holder of those views or silence those she disagreed with.
"Look at my record," she said, "including the conservative cable channels I have worked with for years to get them carriage on cable systems...." She has been endorsed by the heads of two of those channels--Newsmax and One America News Network.
She said she has a history of working with those whose views she fervently disagrees with, including supporters of the former President. "I work with them to get their views online." She said she had been unfairly characterized as being anti-conservative speech. She says her record says otherwise, her criticism of Fox News notwithstanding.
Cruz said he had talked to Newsmax head Chris Ruddy and he confirmed Sohn's advocacy of additional voices, which he called a comforting and encouraging sign.
But Cruz did look at the record--the Fox News tweets--and cited multiple tweets going directly after the network. He asked how Fox News fans could be confident she would not use her regulatory power to silence the network she has criticized.
Sohn said she would make that commitment "right here." She again agreed to check with the ethics office on any reason to recuse on an issue, but said she did not believe she is biased.
Senators will have until Monday, Dec. 6, at noon to submit written questions and the witnesses will have a week to respond, so don't look for a confirmation vote on Sohn in the committee until mid-month.
Pushback on Bias Claims
One of the Republicans with big issues with Sohn was Sen. Dan Sullivan of Alaska, who also grilled her on the Fox “state-sponsored propaganda” comment. “You have clearly indicated your bias against more conservative news sources, he said,” also citing her suggestion Sinclair Broadcast Group’s alleged dishonesty with the FCC — which Republican chairman Pai had also asserted. Sullivan said he thought that obvious bias disqualified her.
Sohn said again that those Fox comments came as an advocate. Sullivan asked if she would recuse herself from any issues involving Fox or Sinclair. Sohn said she would consult with the Government Ethics Office, as she has been to make sure there are no issues of bias, and if there were any questions about bias, she would consult with that office about whether to recuse.
If Sohn does secure the FCC nomination, she would be its first openly gay commissioner, a point President Joe Biden made when nominating her. ■
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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.
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