Democratic FCC nominee Gigi Sohn has promised that, if confirmed to the open seat, she will recuse herself from decisions where retransmission consent or TV broadcast copyright are material issues.
That came in a letter to acting FCC general counsel Michelle Ellison Thursday (January 27), according to a copy of the letter obtained by NextTV.
Sohn was a board member of TV station streamer Locast, which a court concluded had violated copyright by streaming broadcasts without permission or compensation. Republicans and some broadcasters had issues with that connection, suggesting it could be a conflict of interest.
Sohn is looking to put those concerns to rest.
Sohn said she was recusing herself from retrans rule decisions because back in 2010, when she was president of Public Knowledge, she signed on to a petition for rulemaking seeking changes and additions to the retransmission consent rules, a petition that was the subject of an FCC docket (10-71).
One of the docket 10-71 changes, which the FCC adopted in 2014, was to say that joint retrans negotiations by stations among the top-four in audience share in a market-- and not commonly owned--violated the FCC's definition of good faith negotiations. Broadcasters opposed the changes, while MVPDs generally supported them.
Sohn said that while she was not required by her ethics agreement to recuse herself from the docket or anything else regarding retrans or broadcast copyright, she would do so "to avoid any appearance of impropriety and in the interest of ensuring that the public has full confidence that policymakers will make decisions free of bias."
She promised that, for the first four years of her term as commissioner "I will recuse myself from participation in FCC Docket No. 10-71 or any related FCC docket concerning the same issues." But she went beyond that.
"For the first three years of my term," she wrote. "I will recuse myself from any proceeding before the Commission where retransmission consent or television broadcast copyright is a material issue in the Commission’s disposition of that proceeding." She defined material issue as "one that has influence and effect on the ultimate disposition of the matter or matters considered in the proceeding."
She said she would look to the general counsel's office to "make any necessary determination on the application of this recusal to a particular matter."
But Sohn said her recusal did not extend to any issue related to Section 202, media ownership rules, or any transfers of control of broadcast, cable or satellite companies.
National Association of Broadcasters President Curtis LeGeyt signaled NAB was supportive of Sohn joining the commission.
"Ms. Sohn’s recusal agreement resolves the concerns NAB raised regarding her nomination," he said in a statement on the recusal agreement. "NAB appreciates Ms. Sohn's willingness to seriously consider our issues regarding retransmission consent and broadcast copyright, and to address those concerns in her recusal. We look forward to the Senate moving forward with Ms. Sohn’s confirmation and are eager to work with her and the full complement of commissioners in the very near future.”
Sohn is scheduled to get a vote on her nomination in the Senate Commerce Committee next week.
Sen Roger Wicher (R-Miss.), who had issues with Sohn over Locast, among other things, apparently still does, even given the recusal.
“Questions about Ms. Sohn’s potential conflicts of interest have been dismissed as without merit by the White House and Ms. Sohn’s friends in the telecommunications advocacy community," he said in response to the news o Sohn's letter. "Now comes this unprecedented recusal. The FCC is too important to have a commissioner who cannot serve in a significant capacity. Ms. Sohn’s recusal further underscores the need for a new hearing. Senators should be given the opportunity to question the contours and scope of the recusal, how it would impact the operations of the commission if Ms. Sohn is confirmed, and whether the recusal was developed in coordination with any third parties. I am disappointed that the Chair of the Committee has not responded to my request for another hearing on this important nomination.” ■
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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