3 Republicans Eye Holds on Sohn After Confirmation Hearing

Senate Commerce advanced Rosenworcel on a voice vote, and tied 14-14, along party lines, on FTC nominee Alvaro Bedoya. The tie vote means Senate Majority Leader Chuck Schumer, D-N.Y., will need a floor vote to discharge Commerce from further consideration of Bedoya and bring his name to the floor.

Four Senate Commerce Republicans are recorded as opposing Rosenworcel. Sens. Ron Johnson of Wisconsin, Cynthia Lummis of Wyoming and Rick Scott of Florida asked for the designation during the meeting. Communications Subcommittee ranking member John Thune, R-S.D., is also recorded as opposing Rosenworcel, a spokesperson confirmed. He didn’t participate in the meeting so that he could attend a funeral service for his father-in-law, the spokesperson said.

Senate Commerce Chair Maria Cantwell, D-Wash., told reporters she was encouraged that a majority of panel Republicans joined all Democrats in approving Rosenworcel, which could buoy hopes to confirm her by unanimous consent. “I would hope that we would” be able to confirm Rosenworcel “shortly,” before she has to leave the commission at the beginning of January under federal statute, Cantwell said. But “right now there’s trouble moving anybody on the floor” amid a backlog of President Joe Biden’s federal nominees, wrangling over a Senate substitute version of the House-passed FY 2022 National Defense Authorization Act (HR-4350) and other matters.

“I’ll be talking to” Cantwell “about ways to work together” to bring Rosenworcel up for a full Senate vote, said Senate Commerce ranking member Roger Wicker, R-Miss., in an interview. Sen. Marsha Blackburn, R-Tenn., told us she switched to supporting Rosenworcel after previously being undecided because “I feel that my conversations with Jessica” and her previous appearances before lawmakers show “she can fill” the role of FCC chair.

Sen. Dan Sullivan, R-Alaska, told us he backs moving Rosenworcel as quickly as possible. He noted he pressed Sohn during the Wednesday hearing about whether she has had any conversations with the Biden administration about replacing Rosenworcel as permanent chair post confirmation in the same way the White House elevated current FTC Chair Lina Khan over acting head Rebecca Slaughter immediately after the Senate approved her in June (see 2106150068). Sohn said no such conversations took place.

“There’s a lot of rumors” that Biden is thinking of naming Sohn as chair if the Senate confirms her, Sullivan told us after the hearing. “I don’t think [Sohn] was lying to me, but that doesn’t necessarily end the story.” Biden’s decision to promote Khan so soon after Senate confirmation “surprised a lot of us,” Sullivan said. ‘It is a bait and switch that the administration shouldn’t do” again at the FCC. The White House didn’t comment.

Lobbyists told us rumors of a surprise Sohn promotion have been circulating since Biden nominated her in October, but they don’t believe Rosenworcel would have agreed to be renominated without firm administration assurances she would remain permanent chair. Rosenworcel said in her responses to Republican senators’ written questions she “made no commitments to the White House to secure this nomination, nor were any commitments made to me.”

Twitter Fracas

Sullivan told us he’s actively contemplating a hold on Sohn if she advances out of Senate Commerce, citing her tweets criticizing Fox News and Sinclair. He has similarly threatened to place a hold on Bedoya over a retweet describing supporters of former President Donald Trump as white supremacists (see 2111170059). Sullivan cited a 2020 Sohn tweet saying Fox News “has had the most negative impact on our democracy” and calling it “state-sponsored propaganda” that warranted Hill scrutiny amid lawmakers’ concerns about Facebook. He claimed Sohn had “purged” her Twitter account of other posts. Sohn denied taking down any posts.

Sohn’s tweets “make Bedoya look like he’s extremely qualified” by comparison, Sullivan said. “It’s one thing like [Bedoya] did to put out tweets that besmirch half the country. But it’s quite another to be tweeting on issues under which” a nominee would have “direct regulatory authority,” as Sohn did. “This is about regulating free speech, and she’s already proved where she” stands, he said. “I think some Democrats are troubled by this” too, though none raised the issue during the hearing. Sullivan said during the discussion he believes Sohn’s past comments “completely” disqualify her from being a commissioner. He pressed her to commit to recusing herself from any FCC business involving conservative media outlets but later told us he wouldn’t vote for her even if she did that.

Sen. Ted Cruz, R-Texas, also left open the possibility of a hold on Sohn over her views on conservative media outlets. “I think her nomination is troubling, and we will decide on the appropriate steps to work to protect free speech,” he told us after raising the issue during the hearing. Her views are particularly concerning in “the context that we see from the Biden administration and Democrats today in Congress about being willing to use government power to silence those with whom they disagree.” It’s “one thing to have those views as an advocate, but to have those views as a government regulator with the immense authority that the FCC has” is “very troubling,” Cruz told reporters.

Sohn “has a deep and abiding animosity to Fox News, but more broadly” that outlet “is a very prominent outlet for right-of-center views” and Sohn “disagrees with those,” Cruz said. “She’s entitled” to her opinion “but what is dangerous is” Biden “wants to use government power to muzzle” conservative media. It “would make a lot of sense” for Sohn to commit to recusing herself from FCC matters involving those outlets, but “she has a long record of being very vocal in a way that would be hard to have comfort that she would be treating voices on the right fairly and impartially,” Cruz said.

Sen. Roy Blunt, R-Mo., told us he needed to “listen to the full hearing” and awaits Sohn’s responses to follow-up questions after he also brought up her views on Fox News. “I do think it’s difficult to separate your opinions from the job you’re doing,” he said.

Sohn repeatedly acknowledged her tweets on Fox News and other matters were frequently “a little sharper” and “maybe I should have dulled it a little bit,” but she made her comments “as a public interest advocate,” including in her past role as Public Knowledge CEO. “They were made in the context -- and I think context is very important -- context of hearings” and “media reports,” Sohn said. “My opinions as a public interest advocate will have no bearing on how I behave as a policymaker if I’m confirmed.” She’s “been in government before” as a top aide to then-FCC Chairman Tom Wheeler “and the values that are important to being a policymaker,” including “responsiveness, transparency” and integrity are “what you’ll get from me if I’m confirmed.”

Path Forward

Cantwell thinks Sohn “did a great job” during the hearing despite Republicans’ partial focus on her past tweets. “There were a few people today” who “clearly aren’t going to support her,” but “we’ll just have to see” how her confirmation process goes in the weeks ahead, Cantwell told reporters. She also plans to “follow up” with Democratic members to gauge their support for Sohn.

“What should maybe be concerning to a broad audience across the country, contrary to what my Republican colleagues may have been asking” is that “there are conservative outlets that are also supporting” Sohn’s confirmation, Communications Chairman Ben Ray Lujan, D-N.M., told us. “I don’t know if my colleagues are trying to pick and choose which” conservative outlets “they support or don’t support.” What “matters to me is having a strong” FCC with a full complement of five commissioners, Lujan said. Sohn also touted her conservative supporters, including One America News Network President Charles Herring (see 2111100078) and Newsmax CEO Christopher Ruddy.

Senate IP Subcommittee ranking member Thom Tillis, R-N.C., told reporters he’s thinking of placing a hold on Sohn if Biden doesn’t agree to his Tuesday request to “withdraw” her nomination. “I’ll do everything I can to stop her” confirmation, Tillis said Wednesday. He wants the White House to withdraw Sohn because of “her history as an anti-copyright activist,” including her involvement with shuttered sports rebroadcaster Locast as a board member for operator Sports Fans Coalition (see 2111290060). Sohn “is a radical open-content activist with no respect for intellectual property rights,” Tillis said in a letter to Biden. He cited her role as a top Wheeler aide in pressing for a controversial but never enacted set-top box order (see 1703170017).

Sohn defended her Locast role in response to questions from Blunt, Blackburn and Sen. Jacky Rosen, D-Nev. Sohn said she thought the shuttered service was "a good thing" for local broadcasters and viewers, including those in orphan counties. She has "no hard feelings" about the lawsuit that resulted in Locast's end and said she doesn't "believe it" impact her interactions with the companies involved.

Wicker was doubtful any Republican holds would be an additional hindrance to Sohn’s confirmation prospects since “she’s unlikely to get” any GOP votes. “A hold applies only when someone is trying to be confirmed” by unanimous consent, which is highly unlikely to be an option available to Sohn, he said. A lack of GOP support will mean she will have to go through a regular cloture vote.

Sen. Gary Peters of Michigan, who lobbyists had previously viewed as among centrist Democrats who might consider opposing Sohn, confirmed to us after the hearing he backs the nominee based on her Wednesday performance. Rosen and fellow Democrat Sen. Kyrsten Sinema of Arizona, a frequent swing vote, raised questions that continue to mark them as not outright supporting Sohn.

Net Neutrality

Sinema, Wicker and Sen. Ed Markey, D-Mass., were among the lawmakers who pressed Sohn about her net neutrality views, including the debate over whether the FCC should bring back its rescinded 2015 rules and reclassification of broadband as a Communications Act Title II service or go even further. She pushed back when Wicker questioned claims about the ill effects of the rules’ repeal and other “light-touch” regulatory actions under former FCC Chairman Ajit Pai. “Title II and net neutrality had no impact on investment,” Sohn said. “I agree with you generally that light touch is better, but what I’m concerned about now” is “that we have no touch” at all.

Sohn agrees with Rosenworcel that the FCC already “has authority” to move forward on net neutrality, but the commission would still need to go through a new notice-and-comment process and open a new record on the issue now rather than simply relying on the information it got ahead of issuing the 2015 order. “I would much prefer if Congress settled the matter,” she told Sinema. “I’ve been an advocate for net neutrality for 20 years, and I’m as tired of the ping pong game as anybody.” Until “Congress acts, I think it’s critical that consumers be protected and competition be” promoted. “We cannot leave an essential service such as broadband without oversight,” Sohn said.

Sohn and Davidson cited the respective roles the FCC and NTIA will play in disbursing $65 billion in broadband money from the Infrastructure Investment and Jobs Act as a top priority. Sohn said she wants to join the FCC because the infrastructure law makes this a “critical” time in which there’s bipartisan will to provide universal access to broadband and improve its affordability. She would like Rosenworcel to “task me” with working to improve its broadband connectivity maps if confirmed.

The FCC’s maps “for many years have been very inaccurate,” but the commission’s work to implement the Broadband Deployment Accuracy and Technological Availability Act is going to result in much more granular and accurate information, Sohn said. The maps “have been a problem for years,” Davidson said. “We absolutely need” to fix them “to proceed in the right way” with disbursing the infrastructure money.

Cantwell at the beginning of the hearing told Davidson it’s “going to be hard for me to want to move forward” on his confirmation “if we don’t get confirmation from both you and” Commerce Secretary Gina Raimondo “that you understand” that improving broadband affordability is more of an issue than funding new deployments. “70% of the problem is on affordability,” in contrast to lawmakers’ emphasis on deployments to hard-to-serve areas, she said. Cantwell during infrastructure talks earlier this year pressed for more affordability money than the $14 billion allocated to the FCC in the infrastructure law for that purpose (see 2108100062).

“I’m trying to get” Commerce and the Biden administration “to make a commitment about affordability,” Cantwell told reporters. “We just want the administration to come and explain to us what the challenges are going to be” with addressing affordability versus rules in the infrastructure law that require the broadband money to be prioritized for unserved areas. “I’m pretty sure the administration can try to address our concerns,” she said. “This is a lot of money that’s going to flow here pretty soon.”