Senate's 2nd Sohn Hearing Likely Had Little Impact on Confirmation Dynamics

Sohn struck back during the panel against what she deems “unrelenting, unfair, and outright false criticism and scrutiny,” echoing her written testimony (see 2202090001). The nominee countered claims from Wicker and others that she misled Senate Commerce members in her responses to follow-up questions from her December confirmation hearing (see 2112010043) by not mentioning that parties in the Locast lawsuit agreed to reduce the original $32 million settlement to $700,000 of the shuttered rebroadcaster’s remaining cash and liquidation of its used servers. Sohn noted her revised recusal “is voluntary, temporary, extremely narrow and concerns business unlikely to come before the full FCC. But in no way does it open the door to every other industry seeking a recusal for every position I and Public Knowledge have ever advocated.”

“It doesn’t sound like [Sohn] moved anyone” during her Wednesday appearance, but “I think we covered a lot of important ground,” Senate Commerce ranking member Roger Wicker, R-Miss., told reporters after the hearing. The confidentiality agreement Sohn claimed to be bound by was “clearly” only meant to bar communicating to the press and her explanation of the events surrounding her revised recusal was unsatisfactory, Wicker said. He spearheaded the push for another Sohn hearing (see 2201180064).

Sohn’s critics are “trying to conflate something that isn’t there,” Senate Commerce Chair Maria Cantwell, D-Wash., told reporters after the hearing. “She did a great job” and she effectively explained she “had no control over” the Locast settlement, and it’s admirable “she voluntarily recused on this very narrow issue.” Cantwell criticized Sohn’s opponents for claiming “no person who’s ever taken a partisan decision can ever be on one of these boards.” People like FCC Chairwoman Jessica Rosenworcel and former Commissioner Mike O’Rielly “dealt with the meat of an issue, oftentimes on partisan sides” as congressional aides or in policy advocacy, Cantwell said.

“I think” Sen. Kyrsten Sinema, D-Ariz., now “supports” Sohn, Cantwell told reporters. Cantwell later told us her assessment of Sinema’s position is based on behind-the-scenes information. Sinema, thus far the only committee Democrat not to publicly back Sohn, "does not preview votes," a spokesperson emailed. Sinema didn’t participate in the Wednesday hearing. Sinema’s support would mean all 14 committee Democrats back Sohn. That would likely mean Commerce in the future will tie 14-14 on Sohn given all committee Republicans are still expected to vote against the nominee.

Cantwell believes Sohn’s confirmation “probably could be sooner” than the April or May estimate the nominee gave during the hearing. It’s “most likely” Senate Commerce will aim to reschedule panel votes on Sohn and FTC nominee Alvaro Bedoya for the week Communications Subcommittee Chairman Ben Ray Lujan, D-N.M., is able to return to Capitol Hill after his recovery from a stroke, Cantwell later told us. Commerce postponed votes last week on both nominees amid news of Lujan’s stroke, though Republicans’ threat to boycott the committee’s Feb. 2 meeting absent another Sohn hearing was also a factor (see 2202020069).

Locast, Recusals

The amount Locast would pay was “always” going to be $700,000, with parties agreeing to list the $32 million amount in the initial settlement as a way to “scare away” potential successors to the service, Sohn told Cantwell: She was “never financially on the hook for a dime.” Sen. Ted Cruz of Texas and other Republicans repeatedly questioned Sohn’s explanation. The revised agreement was essentially a “gift” from broadcasters, Cruz said. Senate Commerce members “had every reason to believe” the final settlement was $32 million based on Sohn’s written answers to their questions, said Sen. Roy Blunt, R-Mo.

The then-confidential agreement “barred me” and other parties “from mentioning the terms of the agreement in writing,” Sohn said. “This was a fact that whoever leaked the agreement to the press conveniently omitted.” Also “omitted was the fact that the enforceable term sheet setting forth the particulars of the settlement was signed” Oct. 12, “two weeks before I was nominated” for the FCC seat, she said. At that time “I had no idea whether or when I would be nominated.” She “took very seriously my duty to keep the terms of the settlement agreement confidential,” but “others did not, and exploited my inability to defend myself.”

Sohn in part recused herself from participating in docket 10-71, citing her role as PK head in 2010 when that group and 13 others petitioned the FCC in the docket to change how it handles retrans disputes (see 1007150079).

“If I had to do it all over again, I would have mentioned” that the docket 10-71 recusal had a direct “nexus” with her Locast role, Sohn told Blunt. She believes NCTA, USTelecom and others have been “opportunistic” in seizing on her omission of that connection to demand further concessions. Agreeing to recuse herself from all issues PK has previously been involved with would set a standard of “no limiting principle, and no one with any knowledge who has ever spoken about these issues would ever be qualified to be an FCC commissioner,” Sohn said. “That is perverse.”

“I don’t think I’ve gotten anything other than a lot of heartache” for making the additional recusals, Sohn told Communications ranking member John Thune, R-S.D. Thune and others pressed Sohn to explain whether she had gotten any commitments of support from lawmakers or others in exchange for making the recusals. Sohn said the recusal “was my idea” but noted she consulted with Senate Commerce staff and lawyers to ensure the recusal wasn’t too broad. The White House, conversely, was “opposed to me” making further recusals, she said. NAB “had no contact with Ms. Sohn regarding deliberations around her recusal letter,” counter to GOP claims that the group was closely involved, a spokesperson emailed.

GOP Dissatisfaction

Thune and other Republicans echoed Wicker’s dissatisfaction. “There are some questions I have about some of” Sohn’s explanations about the Locast settlement and the recusals that he wants her to address in follow-up written responses due Feb. 21, Thune said. “We’ll probably probe” the connection between Sohn’s revised recusal and NAB’s subsequent statement of satisfaction. “There are still things about it that I think are hard to explain,” he said. “Every time [Sohn] comes before us, we seem to have more questions” than explanations following her testimony, said Consumer Protection Subcommittee ranking member Marsha Blackburn, R-Tenn. “You can’t just bat” away questions about the recusals and the Locast settlement “as if they have no bearing on the issues at hand.”

Thune highlighted that Sohn told him her views on net neutrality are “evolving and continue to evolve” after he questioned whether she would back the FCC going beyond simply bringing back its rescinded 2015 rules and reclassification of broadband as a Communications Act Title II service. “She had to give an answer like that because she’s in front of a committee for a confirmation,” but her positions remain “pretty extreme,” he said.

Other Republicans returned to issues they raised during Sohn’s December confirmation hearing. Cruz, Sen. Dan Sullivan of Alaska and others raised concerns about Sohn’s past Twitter posts, including some criticizing Fox News. Sohn countered that her past views as a public interest advocate won’t affect how she would act as a commissioner. “Can we put this censorship thing to bed?” she asked Sen. Todd Young of Indiana: “It is a little bit ridiculous.”

Democrats during and after the hearing defended Sohn and believe she’s being unfairly criticized. Consumer Protection Chairman Richard Blumenthal of Connecticut praised Sohn’s “transparency and tenacity” in coming back for another confirmation hearing. Her opponents have overemphasized the recusals and Locast settlement as “part of an effort to deadlock, disarm and disable the FCC,” Blumenthal said. Sen. Tammy Baldwin of Wisconsin, the first openly LGBTQ person to become a senator, noted Sohn would be the first openly LGBTQ FCC commissioner if confirmed. “I have been a first a few times in my own career, and I know that is not easy,” Baldwin said.

Sen. Jacky Rosen of Nevada, a Democrat who declared her support for Sohn only in January (see 2201050056), told us she still fully backs the nominee. Sohn has already committed to address telecom issues “that matter to Nevada,” including committing to uphold all retrans laws if confirmed to the FCC, “and I’m going to continue to support her,” Rosen said. She said at the close of the hearing she hopes Sohn’s testimony has resolved questions about the nominee’s ethics “once and for all.”