Federal Communications Commission nominee Gigi Sohn
Photo:
Pete Marovich – Pool via CNP/Zuma Press
You almost have to admire President Biden’s ideological persistence. His Federal Communications Commission nominee
Gigi Sohn
proved too partisan for the last Senate to confirm. Yet he has renominated her even as the commission considers a dangerous rule-making that has flown under media radar.
We’ve written before about Ms. Sohn’s left-wing views and desire for political control of the airwaves. As a counselor to Obama FCC Chair
Tom Wheeler,
Ms. Sohn championed the net-neutrality regulation that classified broadband providers as common carriers under Title II of the 1934 Communications Act. Those rules were repealed by the Trump FCC to the great benefit of new investment and competition.
She’s shown unapologetic animus to conservative views, calling Fox News “dangerous to our democracy,” accusing Republicans of suppressing the vote, and describing Justice
Brett Kavanaugh
as an “angry white man.” She’s also supported progressive attacks on law enforcement, which prompted the Fraternal Order of Police to oppose her nomination.
During her Dec. 2021 confirmation hearing, she committed to acting with transparency and integrity. But then she stonewalled the Senate’s request for a copy of a legal settlement she signed with broadcasters and the defunct app Locast, whose board she sat on. Locast was sued for capturing and retransmitting broadcasters’ signals over the internet without their permission.
We were told that Ms. Sohn’s political statements made Democratic Senators
Catherine Cortez Masto,
Joe Manchin,
Kyrsten Sinema
and
Mark Kelly
uneasy. But Mr. Biden may figure Ms. Sohn has a better chance of confirmation this session after Democrats picked up an additional Senate seat and Ms. Cortez Masto and Mr. Kelly won re-election.
The Senate Commerce Committee plans to hold another confirmation hearing on Tuesday. Rather than merely cover well-trod ground, Senators might probe her views on a new FCC rule-making to narrow the “digital divide.” Since she’d give Democrats a 3-2 majority, she would have a large hand in shaping the rule.
Democrats snuck a provision into the infrastructure bill that requires the FCC to issue rules to prevent “digital discrimination of access based on income level, race, ethnicity, color, religion, or national origin” and identify “necessary steps” to eliminate this discrimination. This is a broad mandate, and the FCC could easily run off the rails.
In December the commission proposed a rule for public comment with 448 questions ranging from whether it should engage in rate regulation of broadband—i.e., treat providers as common carriers—to whether Congress gave it authority to regulate discrimination deeper in the digital world such as Big Tech.
It proposes a “disparate impact” standard for assessing discrimination. This means broadband providers could be liable if their prices and business practices—including data caps, late fees, speeds, equipment rentals and promotional rates—result in less internet access for lower-income folks or minorities even if companies don’t intentionally discriminate.
The FCC also asks whether third parties and state and local governments should be allowed to enforce its anti-discrimination rules. This could be a huge sop to trial lawyers. Public Knowledge, the outfit that Ms. Sohn co-founded and led from 2001 to 2013, has urged the FCC to interpret its regulatory mandate broadly to micromanage broadband competition and development.
Mr. Biden this year could have nominated a less partisan Democrat. That he didn’t suggests he wants a progressive activist at the FCC.
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