FCC Democratic nominee Gig Sohn signaled to Sen. Roy Blunt (R-Mo.) that she would be no slam dunk vote for restoring the FCC's vague "general conduct standard" if chairperson Jessica Rosenworcel tees up restoration of the FCC's open internet rules as expected.
Under former FCC chairman Tom Wheeler, for whom Sohn was a top advisor and Title II-based net neutrality rules advocate, the bright line rules against blocking, throttling and paid prioritization was accompanied by what was arguably a "fuzzy" general conduct standard that allowed the FCC to take action, on a case-by-case basis, against other practices that might not fit into those three categories but which it concluded unreasonably impeded an open internet.
ISPs argued it was too vague, and discouraged unlimited sponsored streaming, for example, which benefited its customers but which some at the FCC might decide violated that conduct standard.
Asked by Blunt, in written questions following her nomination, whether she favored bringing back that general conduct standard, Sohn said she would look at the totality of the record and law and come to a conclusion about the scope of new net neutrality rules, including considering adopting the general conduct standard.
But she also pointed out that she has called out that standard in public. "I have been critical of the general conduct standard in the past," she said. "In an October 2020 paper, I stated that the general conduct standard was “too vague and complicated” and urged that it be replaced with a simple “unreasonable discrimination” standard similar to that adopted by the FCC in 2011."
Other takeaways from Sohn's written responses:
■ Sohn has promised to recuse herself from any matter dealing with Locast operator Sports Fan Coalition NY, Inc. unless an agency designee affirmatively decides that the government's interest in her participation outweighs concerns about impartiality and authorizes her to do so. Sohn was a board member of Locast.
■ Sohn said she had never expressed to anyone any opposition to Jessica Rosenworcel being nominated to another term on the FCC.
■ Sohn told the White House back in March that she would be interested in being FCC chair, but said she has had no discussions with the White House about being the chair since, though she has with others outside the White House.
■ While Sohn reiterated that she does not support using Title II to regulate broadband rates, she did say: "The FCC is, however, charged by Congress under the universal service statute with ensuring that rates charged in rural areas are reasonably comparable to those charged in urban areas. The FCC has rules to gather information on such rates and to reduce the USF support of providers participating in the universal service program that fail to offer consumers in rural areas broadband service at or below the relevant comparability benchmark based on the Urban Rate Survey."
Republicans are concerned that the Biden Administration's inclusion of affordability in the definition of broadband availability could lead to de facto rate regulation.
■ Sohn said that the FCC's current definition of high-speed broadband as 25 Mbps downstream/3 Mbps up is inadequate and that the 100/20 definition in the Infrastructure Investment and Jobs Act are the right numbers.■
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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.