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Gigi Sohn's path to FCC looks even rockier amid new hearing, recusals

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The Senate Commerce Committee has decided to hold a second nomination hearing for FCC nominee Gigi Sohn, a move public interest advocates called "highly unusual."
Source: Chip Somodevilla/Getty Images News via Getty Images

The drawn-out confirmation process for Federal Communications Commission nominee Gigi Sohn was further delayed this week by a medical emergency, and the more time that passes, the less likely confirmation seems.

Sen. Ben Ray Luján, D-N.M., is in recovery after having a stroke in Albuquerque, putting the Senate Commerce Committee's efforts to advance Sohn in limbo. While Luján is expected to make a full recovery and be back to work in four to six weeks, in the interim, the Commerce Committee has decided to hold a second nomination hearing for Sohn on Feb. 9, focusing on Sohn's recusals from any commission items relating to retransmission consent and TV broadcast copyright, as well as her involvement in now-defunct TV streaming service Locast, where Sohn served as a board member.

Public interest advocates called the second hearing unusual, and policy experts noted that the lengthier timeline may leave moderate democrats more opportunity to reconsider their support for an embattled nominee.

It is likely that Senate Commerce Committee Chairwoman Maria Cantwell, D-Wash., and Senate Majority Leader Chuck Schumer, D-N.Y., would ask the White House to nominate another FCC candidate if more concerns surface at next week's hearing, said a former FCC senior official who requested anonymity on the basis of not being authorized to share insider knowledge about Senate proceedings.

Senate Commerce Committee spokesperson Tricia Enright told S&P Global Market Intelligence that Cantwell has "absolutely not" approached Schumer about asking the White House to reconsider the FCC nominee. Schumer's office did not respond to a request by publishing time.

Recusals and refusals

Among the concerns raised about Sohn include her past tweets criticizing cable news channel FOX News and her work at Locast, which was found by a court to be illegally streaming broadcasts without permission or compensation.

To quell concerns around her Locast experience, Sohn offered in late January to recuse herself from any items related to retrans fees, which pay TV providers pay to broadcasters in exchange for the right to distribute their local stations. But the offer raised its own set of concerns from major industry groups.

NCTA - The Internet & Television Association and US Telecom, groups representing U.S. telcos and broadband providers, sent letters to the committee, questioning the specificity of the recusals given Sohn's past advocacy work on a variety of topics.

"Rather than ensuring impartiality, Ms. Sohn's targeted recusal has instead raised serious questions regarding transparency together with significant concerns that one industry has been singled out for special treatment to win their support for her confirmation," NCTA President and CEO Michael Powell wrote. NCTA members include Comcast Corp., Charter Communications Inc., ViacomCBS Inc. and Discovery Inc.

If Sohn were to recuse herself from further industry issues, however, her ability to participate in future rulings would be limited, the former FCC official noted.

Further, US Telecom asked in its letter what impact it would have on the commission if a new standard is established that requires recusal in matters "merely as a result of prior public FCC filings on topics that are still being addressed."

Other priorities

The continuing questions around Sohn are also preventing the FCC from moving forward on major priorities from the Biden administration, notably the reinstatement of net neutrality protections, according to Jim Dunstan, general counsel at TechFreedom.

These protections — which prevent broadband providers from blocking or throttling legal content or prioritizing certain content in exchange for payment — have become a partisan issue and thus would require a 3-2 Democratic majority at the commission to pass.

The third Democrat does not necessarily have to be Sohn, Dunstan said in an interview. While Sohn may be an ideal pick for the White House, at the end of the day, the FCC simply needs a third Democrat, Sohn or not, Dunstan added.

"I think the longer this takes, the more senators might find reason to say, 'Gosh, is she really the best pick for this?'" Dunstan said.

If no confirmation progress is made in the coming months, TechFreedom's Dunstan said the Biden administration may eventually "move on" and nominate a Democratic candidate that would look favorable to more of the Senate.

"We appreciate Sen. Cantwell's leadership, and the White House continues to strongly back Gigi's nomination. We hope her nomination can be scheduled for a committee vote as quickly as possible," a White House spokesperson told Market Intelligence.

In the meantime, the divided FCC can still take care of bipartisan business that falls on the agency's lap, such as the upcoming 2.5 GHz spectrum auction, said former FCC Commissioner Rob McDowell, now a partner at Cooley LLP.

'Highly unusual'

Others in the broadband playing field question the need for a second nomination hearing, worrying that it may delay filling a commission seat that has remained open for over a year.

"Senator Luján's recovery takes precedence, as it should. But Chairwoman Cantwell must commit publicly to moving ahead with the confirmation vote in her committee immediately upon his return," Matt Wood, vice president of policy and general counsel at media democracy advocacy group Free Press, said in a statement.

Noting that some 250 organizations across the political spectrum have called for Sohn's confirmation, Wood called the additional hearing "blatant obstructionism."

Sohn already testified during one nomination hearing in December 2021, noted Chris Lewis, head of communications and intellectual property policy advocacy organization Public Knowledge. That should have been enough for the Commerce Committee to make their voting decision, Lewis added.

Lewis said the multi-hearing process is a first for someone coming purely from the public interest community. Sohn is a co-founder of Public Knowledge and served as its CEO from 2001 to 2013.

"I think the public interest community has been expressing our concern for months now that it's taken so long to see the five-person commission. And to have a second hearing drags it out well beyond what is necessary, and it's highly unusual," Lewis said in an interview.