Sohn Recusals May Have Limited Political, FCC Effects

Democratic FCC nominee Gigi Sohn’s proposal Thursday to temporarily recuse herself from some retransmission consent and broadcast copyright proceedings if confirmed (see 2201270073) is unlikely to satisfy her most vocal opponents but may be enough to solidify support from the Senate Democratic caucus, communications lobbyists and others told us. The Senate would be able to confirm Sohn if all 50 Democratic caucus members vote for her because of Vice President Kamala Harris’ tie-breaker role. The additional recusals aren’t likely to significantly affect Sohn’s role as a commissioner since neither retrans nor broadcast copyright items were matters the commission was expected to take up under Chairwoman Jessica Rosenworcel.

NAB is one of the few Sohn critics to voice satisfaction with the additional recusals. The “agreement resolves the concerns NAB raised regarding her nomination,” said President Curtis LeGeyt in a statement. “NAB appreciates Ms. Sohn's willingness to seriously consider our issues regarding retransmission consent and broadcast copyright, and to address those concerns in her recusal. We look forward to the Senate moving forward with Ms. Sohn’s confirmation.” The group sought concessions from Sohn in November over concerns about her role as a board member for Locast operator Sports Fans Coalition (see 2111290060). Sohn declined comment.

Senate Commerce Committee Roger Wicker, R-Miss., is one of many unsatisfied with the recusals. “Questions about” Sohn’s “potential conflicts of interest have been dismissed as without merit by” the Biden administration and her “friends in the telecommunications advocacy community,” Wicker said in a statement. “Now comes this unprecedented recusal. The FCC is too important to have a commissioner who cannot serve in a significant capacity.”

“I am disappointed that” Commerce Chair Maria Cantwell, D-Wash., “has not responded to my request for another hearing on this important nomination” (see 2201180064), Wicker said. “Senators should be given the opportunity to question the contours and scope of the recusal, how it would impact the operations of the commission” if Sohn is confirmed, “and whether the recusal was developed in coordination with any third parties.”

Senate Commerce “has received the letter,” a spokesperson emailed.

Confirmation Prospects

Wicker’s statement likely means no other GOP senators will be swayed by the additional recusals, as expected (see 2112010043), lobbyists said. The concession appears to be more targeted at solidifying Democrats, particularly the perennial swing votes of Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, the lobbyists said. Sinema’s vote will be crucial to ensuring a 14-14 Senate Commerce tie vote on Sohn when the panel considers the nominee Wednesday, if all Republicans oppose her. Manchin and Sinema didn’t comment.

The recusal “may quell some senators’ concerns, but I don’t believe it gets Gigi out of the woods,” said Digital Progress Institute President Joel Thayer: Republican senators “were just as concerned with her stances on net neutrality, rate regulation on ISPs and other content-based broadcasting issues that may fall outside the scope of her recusal.”

“The big thing here was eliminating any justification for Wicker's effort to have another hearing, not that it had any justification in the first place,” said Public Knowledge Senior Vice President Harold Feld. “Wicker pegged his call for a second hearing to” focus on Locast’s lawsuit settlement, so “this makes anything having to do with” that issue “irrelevant. I don't think it will win any Republican votes, but it eliminates a procedural talking point.”

Americans for Tax Reform plans to tell Senate Commerce before the Wednesday vote that Sohn’s recusals are insufficient and should disqualify, said ATR Digital Liberty Executive Director Katie McAuliffe: “A recusal is a voluntary agreement, so it’s not set in stone.” The recusals themselves aren’t broad enough because Sohn should be precluded from dealing with any proceeding involving “copyright writ large” instead of just broadcast IP matters, McAuliffe said: “That leaves open a huge window” for Sohn to be involved in “other copyright discussions, and we already know her proclivities towards copyright.”

The new agreement makes it necessary that Senate Commerce hold another hearing on Sohn, McAuliffe said. She and 18 other executives from conservative groups wrote Cantwell and Wicker Wednesday urging a hearing based on the leaked details of Locast’s confidential lawsuit settlement (see 2201260056). The recusals and Locast settlement details are “pretty serious” pieces of information “to come to light after” Sohn’s Dec. 1 confirmation hearing. “None of the senators had any details” on either matter when they were asking questions or seeking follow-up answers from Sohn, McAuliffe said.

The recusal is an “unprecedented admission of conflicts that raises a host of questions,” said Shane Tews, American Enterprise Institute visiting fellow. For Senate Democrats “eager to establish a 3-2 majority, seeing that she may be recused from such a wide range of important issues should make those senators think twice about if she’s the best choice with so many important issues before the commission and with broadband buildout being a priority for the whole country."

FCC Plans?

The net effect of the recusal promise is likely to be small but significant, officials said. They noted the arrangement likely guarantees the FCC won’t tangle with retrans for the next several years, which likely favors broadcasters. The agency didn’t comment.

Former Chairman Ajit Pai told us retrans wasn’t a big media issue during his tenure, which could have been a function of the agency having limited authority in enforcing the good-faith standard or reflect a relatively low intensity of retrans disputes. Although the FCC didn’t have direct authority over a dispute during that time, it did monitor them, he said.

It’s rare for commissioners to have ethics agreement recusals and for the FCC to have to vote on retrans items, said Cooley’s Robert McDowell, who as a commissioner had to recuse himself from considering the AT&T/BellSouth transaction (see 0612190102). The ethics agreement behind his recusal was particularly broad, preventing him not being involved in a proceeding where CompTel, his former employer, was a party.

“It is not clear that these issues will come up at all,” said New Street’s Blair Levin, former chief of staff to FCC Chairman Reed Hundt: Retrans and broadcast copyright “are not the issues that most people think of as core to the current FCC agenda.” The “recusal is, in a sense, an insurance policy for them that may not matter, but that is often the case with insurance,” Levin said.

The FCC has historically avoided taking action on retrans policy, and that isn’t expected to change under Rosenworcel, numerous broadcast attorneys said. The agency has acted on enforcement proceedings on the good-faith negotiation rules, but those matters are largely handled at the staff level, the attorneys said. Retrans issues are often raised in the context of acquisitions or ownership rules, but Sohn carved out broadcast ownership and transactions from the arrangement. Broadcast copyright issues are an even more infrequent occurrence at the FCC, industry stakeholders said.

An FCC bid to again take up its proceeding about defining bad-faith negotiating could trigger a Sohn recusal, McDowell said. A proceeding on MVPD carriage of independent programmers and streaming (see 2112100027), announced by Rosenworcel after her confirmation, could also be affected by Sohn’s recusals, attorneys said.