Nearly two years have come and gone without a fifth commissioner at the Federal Communications Commission, the agency tasked to regulate the corporate behemoths that control how Americans gather, receive, and transmit information. Almost a year into President Biden’s first term, the White House nominated Gigi Sohn, a public-interest advocate who served as a top counselor to Obama FCC chair Tom Wheeler. Today, with significant opposition from the telecom industry, Sohn still awaits Senate confirmation in the twilight of the lame-duck Congress. If the year ends without Sohn being confirmed, the White House will have to renominate her in the next Congress, restarting what’s already been a drawn-out process with little to no precedent.
“This is setting a record for the campaigning and industry advertising around the appointment of just one commissioner,” said Reed Hundt, the former chair of the FCC during Bill Clinton’s presidency.
Sohn’s absence means that the Biden administration lacks a working majority at a critical agency, which is deadlocked on many issues between the panel’s two Democrats and two Republicans. It speaks to a broader problem that Democrats have run into during President Biden’s tenure (and frankly, all modern presidencies) to fully staff the sprawling branches of government.
A split commission impairs several core functions, including but not limited to restoring net neutrality, an issue Sohn has long championed that would prohibit the throttling of websites by internet service providers. The FCC has the power to expand internet access across the country and address the high costs for slower broadband service imposed by telecom monopolies. The agency wields broad authority even to restructure media markets to promote more diffuse ownership.
In the near term, the Biden administration has tasked the FCC with key directives essential to the implementation of both the bipartisan infrastructure bill and an executive order on promoting competition across the U.S. economy. Without a fifth commissioner, those directives are at risk of getting watered down to the benefit of telecom corporations.
The pressing need for a fully powered FCC has made the delays to Sohn’s appointment all the more confounding for her supporters in the Senate and outside government. They question why the White House hasn’t pushed for her confirmation with greater urgency.
“The Biden administration didn’t provide any public-messaging support when she faced a coordinated character assassination campaign by telecom and media giants,” said Karl Bode, a veteran telecom expert and journalist.
GOP obstruction is a major force holding up Sohn’s confirmation, as has been the case for other Biden appointees who eventually got pulled, notably nominee Saule Omarova for comptroller of the currency. Republicans paint Sohn as a radical partisan activist for criticizing Fox News and impugn her stance on a smattering of culture-war issues (based on “liked” tweets) that don’t fall within the purview of the FCC.
However, because Democrats can confirm nominees with a simple majority in the Senate, they don’t actually need to listen to Republican opposition. It took Democratic opposition to keep Sohn out of the FCC thus far, and it may keep her from being renominated in the next Congress. The question of what the Biden administration will do with Sohn, and whether it will gain control of the FCC, remains unsettled.
THE SUPPOSED “MYSTERY” of the missing fifth commissioner doesn’t look quite as vexing from the vantage point of K Street. A torrent of lobbying money from the telecom industry has flooded Washington to block Sohn’s arrival at the FCC. AT&T, Comcast, Verizon, and T-Mobile doled out over $23 million lobbying Washington this year, according to data from OpenSecrets. Disclosures indicate that a bulk of that money is directly targeting Sohn’s appointment and the key Democratic swing votes needed to get her through the Senate.
Leading the lobbying onslaught with $7.4 million, Comcast paid former Democratic majority leader Tom Daschle’s firm $30,000 to lobby on issues including “Status of FCC nominations,” according to filing disclosures. Sohn remains the only outstanding nominee.
Comcast also kept Larry Puccio, the former top aide to Sen. Joe Manchin (D-WV), on its payroll. It then tapped a former Arizona state lawmaker close to Sen. Kyrsten Sinema (I-AZ) to lobby on FCC nominations, an inconvenient descriptor that was later scrubbed from the filing, as reported by The Washington Post.
The telecom industry also found a bedfellow in former Democratic senator from North Dakota turned lobbyist Heidi Heitkamp. Her PAC One Country Project took out a $250,000 ad campaign to smear Sohn’s stance on rural internet access across six states whose senators are pivotal votes.
The industry’s attacks on Sohn’s public-interest work have been vicious enough to force her to recuse herself from ruling on several broadcasting issues, even though no ethics violations were found. Yet it’s no secret that the corporate opposition to Sohn has little to do with her actual record. It’s about gumming up the agency so that it can’t effectively regulate.
“You could have appointed Mother Teresa and if she’s the fifth vote it doesn’t matter, she’s not getting through,” said Greg Guice, the director of government affairs for Public Knowledge, an advocacy organization that Sohn co-founded.
Even lobbyists admit it.
“It’s far better for industry to have a tied commission really no matter who it is,” said an industry lobbyist who has represented several of the largest telecom firms at the center of the campaign against Sohn.
For many of Sohn’s closest allies, the arm-twisting by business interests is only part of the story. There’s a growing consensus that Senate Democrats and the White House committed early missteps in the appointment process that stalled her confirmation.
Back in the fall of 2021, Biden nominated both the current chair of the FCC, Jessica Rosenworcel, and Sohn on the same day. Then a commissioner, Rosenworcel’s term was set to expire at the end of 2021. The strategy behind coupling the two was to put pressure on Senate Democrats to confirm both nominees before the end of year or risk losing the FCC to Republican control.
The strategy broke down in the Senate Commerce Committee. After a vote advancing Rosenworcel, committee chair Sen. Maria Cantwell (D-WA) sent her through to the full Senate for a vote, but held Sohn back for a second committee hearing, as a show of goodwill to Republicans who claimed Democrats were rushing nominations. A second hearing isn’t required by Senate rules.
Rosenworcel was confirmed by the Senate last December 7. Sohn is still waiting. “Senate Democrats got played and it was a huge mistake to decouple,” said Ernesto Falcon, the senior legislative counsel for the Electronic Frontier Foundation. “There’s no reason why Jessica was voted on by herself without Gigi but for the will of the Democratic caucus and here we are a year later.”
At the time, several public-interest groups were so incensed by Cantwell’s decision that they called for her to step down as chair of the committee. Cantwell’s office could not be reached for comment.
In that second hearing, held in early 2022, Sohn underwent a bruising round of questions from Republicans. By then, industry had had time to rally its forces and plant stories on Sohn. She was eventually voted out of committee on a party-line vote that would require a second vote on the Senate floor to discharge her from the committee. But the prospects for her confirmation were hampered by the hearing, according to multiple sources.
A month later, Sen. Ben Ray Luján (D-NM), a member of the Commerce Committee, suffered a stroke, which set a full Senate vote back even further. By then, the Senate had turned its attention to the Build Back Better agenda, and many appointments were left by the wayside.
SOHN STILL HAS STRONG SUPPORT in the Senate and a good chance of getting confirmed either in the lame duck or in the next Congress. In October, a collection of almost 250 industry leaders and advocacy groups sent a letter to Senate leadership calling for Sohn’s confirmation before the end of the year.
“I continue to strongly support President Biden’s nomination of Gigi Sohn, who has decades of experience, and the Senate needs to swiftly confirm her,” said Sen. Elizabeth Warren (D-MA) in a statement to the Prospect.
The path forward to Sohn’s confirmation, however, is not immediately clear, though her backers are confident she’ll have the votes. With a week left in this congressional session, a confirmation vote is unlikely. If Sohn were renominated, she would need to go through the Commerce Committee once again, which presumably would include a hearing. But the administration has not committed to a renomination.
Unsurprisingly, Manchin is the main holdout, while Sinema voted Sohn through at the Commerce Committee. Sens. Mark Kelly (D-AZ) held a private meeting with Sohn but would not publicly support her confirmation. After the midterm results, Senate Democrats picked up an extra seat, gaining a small margin for error if Manchin bolts. Democrats also performed well enough to likely dispel any political hang-ups for swing-state senators, especially with the likes of Kelly safely re-elected to six-year terms. Kelly did not respond to a request for comment.
“They’ll fall in line once Senate leadership can actually commit,” said Guice.
Without a fifth commissioner, the FCC has in fairness still managed to make progress on several issues. Of the seven main policy goals outlined by President Biden’s competition order for the FCC, the agency has taken action to prevent landlords from accepting kickbacks from ISPs, voted to require ISPs to provide information on pricing and subscription rates, and supported open-access protocols for 5G. Net neutrality rules, which are referenced in the order, have yet to be adopted.
Yet Sohn’s confirmation couldn’t come any sooner. Later this month, the FCC will begin the process of setting rules for a provision in the bipartisan infrastructure bill on digital discrimination. At stake is whether telecom giants will be allowed to continue investing only in the customer bases of wealthy areas and neglect poor areas. To get those rules right, the FCC will need its fifth commissioner.
Luke Goldstein is a writing fellow at The American Prospect.
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