Of the more controversial nominees to come out of the Biden administration, Gigi Sohn, the President’s pick to be a commissioner at the Federal Communications Commission (FCC), might be facing the broadest opposition of all.
A second confirmation hearing further revealed deep-seated concerns about her policy positions, past statements and actions on critical issues, and unprecedented and eyebrow-raising ethical issues. The White House even managed to hurt its relationship with allied organizations due to an opaque and seemingly disingenuous nomination process.
The FCC is an independent federal agency that regulates communications by radio, television, wire, satellite, and cable. Among its fundamental mission, the agency is supposed to promote competition and innovation, and work toward a media regulatory framework to ensure “that new technologies flourish alongside diversity and localism.”
In a highly regulated sector like telecom, ownership, and market participation are especially vital for underserved communities. FCC overreach can easily make it more difficult to own a radio or TV station or reduce the investment needed to bring broadband connectivity to underserved areas, including the 991 majority Latino rural counties in the U.S., for example.
As advisor to previous FCC Chairman Tom Wheeler during President Obama’s second term, Sohn spearheaded a push for regulation that would have enabled big tech companies to effectively use content from smaller programmers, including many Hispanic and other minority-owned ventures, without paying them for their intellectual property.
These content creators fought to get their content on cable and satellite television in a competitive marketplace, negotiating contracts with service providers. But Sohn ignored their concerns and pressed ahead, stopped only because then-commissioner, now FCC Chairwoman Jessica Rosenworcel, refused to vote for the plan. Sohn’s anti-intellectual property worldview would make it more difficult for Hispanics and other minority creators to succeed in American media.
Ownership is a long-standing theme in FCC proceedings. Minorities have historically long been underrepresented in media ownership, given challenges accessing the capital needed to own and operate radio and television stations. Creative arrangements such as incubators and sharing services between stations have historically been an important way to expand ownership opportunities.
Sohn and the organization she founded, Public Knowledge, have supported stringent media regulations that prohibit or discourage these arrangements, which remove the incentive for larger companies to partner with smaller media operators from underserved communities.
Sohn doubled down in her first confirmation hearing, making the preposterous claim that “there’s almost no media ownership rules left” and that “we need to consider whether some of those ought to be restored.” Given that corporate tech behemoths compete directly with radio and TV companies that are a mere fraction of the size, it’s clear that Sohn’s approach is outdated and regressive.
Sohn’s disdain for intellectual property reached new heights when she joined the board of Locast, an operation that claimed to be a “noncommercial entity” that streamed broadcast content online, including stations like Univision and Telemundo, without compensating the networks. Last year a federal court ruled that this violated the Copyright Act and ordered Locast to shut down and pay a $32 million judgment.
Recent news, however, raises serious ethical concerns about Sohn’s role at Locast, as she managed to reduce Locast’s liability down to $700,000 just one day after being nominated, meaning she knew—and the networks knew—she might soon be a regulator with power over the very entities that sued Locast.
When asked about the $32 million settlement in her first confirmation hearing, Sohn replied, “The settlement funds come from amounts collected to fund [Locast parent company Sports Fan Coalition New York] operations after SFCNY pays its vendors.”
News of the settlement made it clear that there was no such payment, making Sohn’s claim quite misleading. In last week’s second hearing, Sohn claimed she didn’t disclose the settlement to the Senate—or even the White House.
In between confirmation hearings, Sohn wrote to the acting general counsel at the FCC that, if confirmed, she would recuse herself on a slew of media issues, a tacit admission of biases and conflicts. As a nominee, this is a truly remarkable, perhaps desperate, effort.
But far from helping to ease her confirmation path, Sohn’s highly unusual letter raised a host of related questions about why she specified “any … matter where retransmission consent or television broadcast copyright is a material issue” brought up by her work for Public Knowledge over a decade ago while leaving out other areas of her advocacy.
How did a nominee with so much baggage pass the vetting process? This is especially curious given that Latino groups allied with the White House urged the administration to nominate a Hispanic, in part to improve Hispanic representation in the Biden Administration. Individuals with personal knowledge of these conversations relayed that the White House claimed that not one of the proposed candidates could pass the vetting process, even though none of the suggested nominees were ever asked to fill out the final round of paperwork. And yet a far-left nominee with serious ethics issues made it through that process.
Some of these organizations are now critical of Sohn’s nomination, including the League of United Latin American Citizens (LULAC) whose opposition is public.
Sohn’s nomination has been further complicated due to the recent stroke suffered by Sen. Ben Ray Lujan, a member of the Senate Committee on Commerce, Science, and Transportation who was absent for last week’s hearing and his continued absence would certainly affect a vote on the Senate floor.
With so many substantial obstacles, the White House now has an opportunity to reconsider its mistake and choose a new nominee without Gigi Sohn’s conflicts, ethical concerns, and appearances of impropriety. Given the headwinds facing the Biden administration, such a move would be well-advised.
Mario H. Lopez is president of the Hispanic Leadership Fund, a public policy advocacy organization that promotes liberty, opportunity, and prosperity for all Americans.