President Joe Biden nominated Gigi Sohn as a commissioner to the Federal Communications Commission (FCC) on October 26, 2021, and she has not yet been confirmed.
The FCC is an independent federal agency whose mission is to regulate telecommunications in the United States as specified in Section One of the Communications Act of 1934. The Commission has five commissioners, with each appointed by the President and confirmed by the U.S. Senate.
On October 14, 2022, a consortium of nearly 250 businesses, consumer advocates, civil rights organizations, education groups, community media entities, state and local elected officials, and others sent an open letter to the Senate majority and minority leaders, as well as Senate Commerce Committee chair Maria Cantwell, Democrat of Washington State, and ranking Republican of the committee Roger Wickerof Mississippi asking the Senate to vote to confirm Sohn’s nomination.
The letter notes, “The FCC needs a full commission as it begins to deliberate on upcoming critical decisions that will have profound impacts on the economy and the American people.” Will this effort succeed? And who is Gigi Sohn?
“Who she is is irrelevant,” Sascha Meinrath, telecommunications professor at Penn State University, explains to The Progressive. “In a two-two FCC, it almost doesn’t matter what her positions are because there are a number of folks who don’t want to see a three-to-two Democratic FCC and you have Democratic leadership that doesn’t want to call the vote,” he adds. “So, you end up with this kind of purgatory that she’s been in for about a year.”
“Absolutely!” Andrew Schwartzman of Georgetown University’s Communications and Technology Law Clinic tells The Progressive. “Why they want to block or delay [the nomination] is that the FCC can only do the bare minimum,” he told The Progressive. He said that a two-two FCC can deal with a “relative handful of things that have a bi-partisan consensus” such as spectrum issues and telephone company spamming. “They can get votes on that, that’s easy,” he added. “But anything that’s important, they’re stymied. And inaction benefits incumbents.”
Gigi Sohn, for more than a quarter-century, has been a public interest lawyer, lifelong progressive, and telecom specialist. If finally appointed, she would be the third Democratic commissioner on the FCC and the first openly LGBTQ+ commissioner in FCC history.
Sohn helped found the Media Access Project (MAP) in 1972, a public interest law firm that has opposed media consolidation (e.g., Comcast’s acquisition of NBC Universal) and efforts to end net neutrality (the principle that all Internet traffic should be treated equally). The group closed its doors in 2012.
In 2001, Sohn co-founded Public Knowledge and served as its CEO until 2013. According to the group’s website, it “promotes freedom of expression, an open Internet, and access to affordable communications tools and creative works.” Like MAP, Public Knowledge opposes telecom industry consolidation and backed net neutrality.
Between 2013 and 2016, Sohn served as Special Counsel for External Affairs to former FCC Chair Tom Wheeler, essentially acting as a liaison between the FCC, Congress, and other government agencies. She was a noted critic of the commission, but her former boss Wheeler has noted, Sohn “will bring her deep knowledge of consumer and public interest perspectives to an agency that, of course, protects consumers and serves the public interest.” Among her major accomplishments was the commission’s 2015 net neutrality order that banned Internet service providers from blocking web content, slowing it down, or demanding payment for prioritizing it.
Sohn currently serves as a distinguished fellow at Georgetown Law Institute for Technology Law & Policy and is on the board of the Electronic Frontier Foundation (EFF).
So, why hasn’t Sohn been confirmed to the FCC?
America is a politically divided country and nowhere is this more evident than in the U.S. Senate and it is the Senate that must confirm Sohn.
“It’s taken so long because of a combination of Republican obstructionism, bad luck, and fierce lobbying by the telco and cable lobbyists,” argues Public Knowledge’s Harold Feld.
Senate Republicans have lined up to oppose her nomination. This is most clearly reflected in the rage expressed by Senator Lindsey Graham, Republican of South Carolina, who tweeted, “I will do everything in my power to convince colleagues on both sides of the aisle to reject this extreme nominee.” Graham added, “Gigi Sohn is a complete political idealogue who has disdain for conservatives. She would be a complete nightmare for the country when it comes to regulating the public airwaves.”
Committee Republicans have all opposed Sohn’s nomination including ranking member Wicker; Senator John Thune, Republican of South Dakota; Senator Ted Cruz, Republican of Texas; Senator Dan Sullivan, Republican of Alaska; and Senator Marsha Blackburn, Republican of Tennessee.
“There’s also been ferocious lobbying by the cable and telco folks who don’t want a third Democrat on the Commission, especially this particular one, Gigi Sohn, who is a consumer champion.”
Perhaps most surprising, former Senator Heidi Heitkamp, Democrat of North Dakota, led what the Los Angeles Times calls “a $250,000 advertising campaign designed to paint Sohn as an enemy of rural broadband, a fabricated and absurd charge.” The campaign, dubbed “One Country Project,” claimed that Sohn opposed rural broadband and misquoted her on the issue. Her actual statement was: “While policymakers have focused disproportionately on broadband deployment in rural areas of the United States, Americans who live in cities also face enormous challenges to broadband connectivity.”
Feld also notes, “There’s also been ferocious lobbying by the cable and telco folks who don’t want a third Democrat on the Commission, especially this particular one, Gigi Sohn, who is a consumer champion. This is happening in an election year, and it’s led to some Democrats in tight races wanting to delay the vote either to avoid a commitment or so they can get more fundraising checks.”
The nonprofit research organization OpenSecrets reports that in 2022 the telecom service sector has spent $58.3 million so far this year on lobbying. It notes that Comcast alone has spent $7.4 million and—as The Washington Post revealed—that it “paid former Senate majority leader Tom Daschle [Democrat of South Dakota] and his firm $30,000 to lobby on the ‘Status of FCC nominations,’ among other issues.” The Post also reported that the company “retained Larry Puccio, the former top aide to Senator Joe Manchin III, another critical Democrat to lobby on telecommunications issues, though it did not mention nominations.”
Opposition to Sohn has also been raised by key elements of the conservative establishment. These include the U.S. Chamber of Commerce as well as editorials aired on Fox News, and placed in the New York Post and The Wall Street Journal. In addition, the Fraternal Order of Police and the Directors Guild of America (DGA) have come out against her nomination
An open question remains as to what will happen next regarding Sohn’s nomination.
Public Knowledge’s Feld laid out one possible scenario. “You need all the Democrats and a time when the Vice President is actually there [in the Senate chamber],” he pointed out. He stressed that even if the vote does make it past the deadlocked Commerce Committee, the party line vote will involve ten or fifteen hours of floor debate.
“Clearly,” Feld adds, “that won’t get done before the election” on November 8.
Going further, he argues, “What happens next is the lame-duck session and Sohn is not the only one whose nomination is being held-up . . . but she is probably the most important of the candidates.” After the Senate returns, he speculates, Senate Majority Leader Chuck Schumer “will hold a marathon session of these confirmation votes. We hope and expect that Sohn will be among those who are part of this confirmation marathon and finally confirmed. But not until after the election.”
However, Penn State’s Meinrath is less optimistic. “While I personally would very much like to see Sohn confirmed, the worse outcome would be that she is not confirmed, and we have nobody in the seat.”
“What is the endplay here?” he adds. “At some point you have to call the vote or withdraw her [nomination]. Why are we a year into this and nobody is doing that? This falls squarely on Schumer’s office and the White House.”
Editor's note: On Tuesday March 7, Gigi Sohn withdrew her candidacy for the position of chair of the Federal Trade Commission. Citing an industry-and-lobbyist-led campaign against her, Sohn said in a statement: “It is a sad day for our country and our democracy when dominant industries, with assistance from unlimited dark money, get to choose their regulators. And with the help of their friends in the Senate, the powerful cable and media companies have done just that.”