In October 2021, President Joe Biden nominated Gigi Sohn and Jessica Rosenworcel to serve on the Federal Communications Commission. Sohn, a career tech watchdog and former FCC staffer, would serve under Rosenworcel, who was nominated as chair.
Sohn and Roserworcel were lauded as “a dream team for the future of the internet” and digital watchdogs envisioned an FCC that would reenact net neutrality and resume Title II oversight of the broadband industry, an authority awarded under the Communications Act but rolled back during Donald Trump’s presidency. The two women were praised by public interest groups and internet activists alike, who eagerly awaited their arrival to the FCC.
Rosenworcel, who was already on the FCC, was confirmed by the Senate in December.
Sohn is still in limbo. And the delay could spell doom for a signature Democratic policy plank.
Sohn hasn’t been confirmed by the Senate—a delay of over six months since her nomination. Along the way, she has been the victim of a relentless and unabashed smear campaign by Republican senators, tech companies, and even former Democrats who have railed against her nomination, calling her an “unqualified hack” with a bias against conservative media. Sohn’s nomination passed through the Senate Commerce Committee in March, teeing up the possibility of a full confirmation vote, but that seems to have stalled yet again.
At a time when internet service providers are being dealt major blows in the courts, Biden’s FCC isn’t fully equipped to ride the wave of internet freedom. In California, net neutrality just won a major victory. Internet service providers had been fighting a state law for years—which activists called the “gold standard” for net neutrality—and finally dropped their case earlier this month. Other states, in the wake of the resolution of the case, may soon follow with laws that protect internet users against overbearing telecom companies.
But a handicapped FCC is not ready to go to bat for internet rights, and if Sohn’s nomination continues to be delayed, it may never be. Republicans, with their stall tactics, may have found a way to kill net neutrality.
“I don’t think there is a factual basis to question her qualifications,” said Christopher Mitchell, a director at the Institute for Local Self-Reliance, a broadband advocacy group. “She is eminently qualified to be on the FCC. People might question some of her policies, and in fact, some of her strong supporters … very much question her policies. But no one seriously questions her qualifications.”
In her first confirmation hearing before the Senate in December, Republicans painted her as an extreme partisan and mounted a staunch opposition as they peppered her with pointed questions, uncommon for an FCC nominee. Sohn’s hearing lasted two hours and 20 minutes, while former chairman Ajit Pai, Rosenworcel, and current commissioner Brendan Carr had a collective hearing that was shorter than that.
With razor-thin margins and wavering Democrats, holding up Sohn was an easy task for Republicans. And after the 2022 midterm elections, if Sohn isn’t forced through, the party could gain a majority in the Senate and keep the FCC permanently understaffed.
Sohn’s critics used her ties to Locast—a now-defunct streaming service that settled for $700,000 in a case with broadcast companies alleging it violated copyright law—to hold things up. Sohn was a board member of the Sports Fan Coalition, which ran Locast, although she joined after the case had been brought.
Sen. Roger Wicker (R-Miss.) requested another hearing for Sohn over these concerns in January, which Democrats capitulated to, extending the process.
“That to me seemed to be a completely manufactured concern and controversy,” said Matt Wood, Vice President and General Counsel at Free Press. “You can see the contours of it being manufactured when the complaints from some of her opponents that first was ‘Look at all this money to this entity with which she was associated. They all owe all this money to broadcasters, and so therefore, broadcasters can hold that over our head.’ And then it came out that it was a confidential settlement, which is why it wasn’t as widely known at first. It actually had been settled for a lot less than that, for like pennies on the dollar.”
Wicker’s arguments against Sohn leaned heavily on this Locast settlement, saying that she would have a bias or conflict of interest in ruling against broadcast firms. But when the specifics of the settlement were made publicly available—and the money was shockingly little—Wicker changed his tune. Wood said the critics have now shifted to saying that because the settlement was so low, it’s “proof that there was undue influence” by broadcasters over Locast and, by proxy, Sohn.
“If there’s a lot of money that’s a problem and if it’s not very much money, that’s also a problem, right?” said Wood. “Heads I win tails, you lose kind of advocacy.”
Sohn also came under fire for tweets of hers that were critical of Fox News.
“For all my concerns about #Facebook, I believe that Fox News has had the most negative impact on our democracy,” Sohn wrote in a tweet in 2020. “It’s state-sponsored propaganda, with few if any opposing viewpoints. Where’s the hearing about that?”
The Wall Street Journal Editorial Board opposed her nomination, saying in a November article that the tweet “hinted at deploying the agency’s regulatory power to censor conservative media and revive a version of its mooted fairness doctrine.”
“The FCC, let alone a single commissioner at the FCC has no power to dictate carriage of cable channels or what those cable channels say,” Wood said. “So expressing concerns about the politics of our country doesn’t mean that as another commissioner she would have any [ability] to do anything.”
Despite staunch Republican opposition, some cable leaders support her nomination. Newsmax and One America News Network (OAN), two conservative news networks, announced their support for Sohn in November 2021, before her first Senate hearing.
“I’m fully aware of Gigi’s personal views,” said OAN President Charles Herring in a now-deleted post on its website. ”Yet I‘m even more knowledgeable on her strong belief and advocacy for diversity in the programming lineup, especially in news, regardless of conflicts with her personal views.”
His father, CEO Robert Herring, disagreed.
“She shouldn’t be anywhere near the FCC as far as I am concerned,” he said on an OAN segment in December. The elder Herring said he had reached out to Fox News to apologize for his son’s endorsement.
Sohn has not only been the subject of attacks from conservatives and cable companies, but faced smear campaigns from people on her own side.
Former senator Heidi Heitkamp, who now fronts One Country Project—a PAC aimed at electing rural Democrats—voiced her opposition to Sohn in April and announced a six-figure ad campaign to convince rural Americans that Sohn is the “wrong choice for the FCC and rural America.”
Heitkamp explained her position in a Medium post in March.
“Priorities matter, and Sohn has consistently tried to downplay the importance of policies focused on rural broadband and shift attention toward her preferred constituencies in urban areas,” she wrote. “Senate Democrats should decide that enough is enough and ask President Biden to choose a new nominee for the FCC—one that can advance their agenda without these extremist tactics. Sohn is a mixed message at best and will obliterate any Democrats hope they will get credit for broadband wins.”
The opposition by Heitkamp was seen as astroturfing by critics, who believe that Heitkamp is being paid by AT&T and Comcast, telecom companies that helped fund her Senate campaigns.
“You look at Gigi’s record, she has been supportive of bringing reliable, affordable high-speed broadband to every corner of this country,” said Shane Larson, Senior Director for Government Affairs and Policy for the Communication Workers of America. “It’s just shameful. Obviously, Heidi Heitkamp has bills to pay. And so she has sold out to these corporate interests and is just a corporate shill now at this point, trying to create some controversy for clearly the corporations that are helping her pay her bills now.”
Broadband companies have been anti-Sohn from behind the scenes, but some have been more vocal in their disapproval. In February, telecom trade groups sent letters to the Senate Commerce Committee voicing their displeasure with Sohn. The letters came from USTelecom, a group with members such as AT&T, Verizon, and Comcast. Given the telecoms industry’s relentless challenges to net neutrality laws across the country—like the years-long battle in California—it’s no surprise why they’re fighting to spike Sohn’s nomination.
Comcast spent $3.3 million on lobbying efforts just this year, and contributed over $11 million to candidates in 2020, according to OpenSecrets. AT&T spent $3.1 million on lobbying and over $14 million on candidates in 2020. With just two telecom companies accounting for over $25 million in donations in 2020, it’s no wonder why senators are willing to fall in line against Sohn.
The Senate Commerce Committee vote was originally scheduled for February, but was delayed after Sen. Ben Ray Luján (D-N.M.) suffered a stroke in late January, delaying her nomination until the split committee had enough Democrats available to push her through 14-14. Even bringing her to the Senate floor will be a process, similar to the one faced by Biden’s FTC pick Alvaro Bedoya, who was just recently confirmed.
And it’s especially disconcerting because the person who nominated her hasn’t launched a full-throated defense.
Biden has been seen as a tepid and silent supporter of net neutrality, and his lack of urgency on the issue could wind up aiding the Republican agenda. On the campaign trail in 2020, Biden lagged behind many other Democratic candidates in vocalizing his support for net neutrality being reinstated. While many candidates supported net neutrality at some point in their careers, Biden remained quiet. His campaign claimed he was “outraged” when net neutrality rulings were repealed in 2018 after being pressed by the Daily Dot, but his only tweet on the matter followed an announcement by then-President Barack Obama calling for Title II regulation.
Biden’s first fundraiser when he announced his candidacy was with an executive for Comcast.
Biden’s FCC might be able to bring back net neutrality, but that doesn’t mean it will stay. Sen. Ed Markey (D-Mass.)—one of the biggest congressional net neutrality supporters and author of the Save The Internet Act, which would make net neutrality law—signaled last year that he would wait for the FCC to bring back net neutrality before attempting to codify it into law.
“As soon as there are three Democratic Commissioners in place, the FCC must act without delay to reclassify broadband as a Title II service and reassert its authority over broadband,” Markey said in a statement at the time. “I also plan to soon introduce legislation to do the same by statute.”
This leaves Democrats little time before the 2022 midterms in November to do three very important things: get Sohn on the FCC, reinstate net neutrality (a process that could take up to a year), and introduce and pass net neutrality legislation through both chambers of Congress.
Even if the FCC brings back the Obama-era net neutrality regulations, there are ways a Republican-controlled legislature in 2023 can pull it back. The Congressional Review Act gives Congress 60 days to vote on regulations passed by government agencies, and Congress can overturn new rules with a majority vote. It was most recently used in 2018 when Democrats tried to stop the Republican-controlled FCC from overturning net neutrality rules but ultimately failed. Even if Sohn was confirmed before the midterms, any net neutrality rulings in 2023 could be subject to a Republican-controlled legislature, which would have the ability to reverse them.
And Markey’s bill, if Republicans take either the House or Senate, would be dead.
Sohn’s path to confirmation has been abnormally long and tumultuous, said Shane Larson.
“I can’t recall anything rising to this level of making them a target and generating fake controversy,” he said.
It’s even more glaring when you consider the opposite tack Republicans took just two years ago. Nathan Simington, a controversial candidate with direct ties to Trump, was fast-tracked by Republicans in late 2020, with just a three-month gap between his nomination and confirmation. Republicans used their majority to bulldoze a final member onto the FCC just before a new Congress would start sessions, ensuring they could have a bulwark against any progressive agenda if they were able to hold up a Biden-appointed candidate.
It stands in sharp contrast to Sohn. And the days to prove those Republicans’ efforts weren’t successful are swiftly dwindling.