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Rosen 'Pause' on Sohn at Hearing Raises New Uncertainty on Confirmation Prospects

FCC nominee Gigi Sohn and most Senate Commerce Committee Democratic supporters strongly defended her record and decried what several called an extensive “smear campaign” against her during a Tuesday confirmation hearing, but comments from panel Democrat Jacky Rosen of Nevada about law enforcement groups’ vehement opposition to her candidacy threw her prospects into renewed doubt. All participating Commerce Republicans voiced strong opposition to Sohn Tuesday, as expected (see 2302130001), citing the same concerns as at the nominee’s previous two confirmation hearings and more recent matters that conservative media outlets raised since President Joe Biden renominated her in January. Republicans repeatedly tried to directly correlate her role as an Electronic Frontier Foundation board member and the group’s past actions, but avoided raising reports on EFF’s sex worker policy positions that her supporters claim were instances of veiled homophobia (see 2301310062).

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Concerns from the Fraternal Order of Police and other law enforcement groups “do give me pause,” Rosen told Sohn. Mentions by Senate Commerce ranking member Ted Cruz of Texas and other Republicans about Sohn’s past comments about conservative media companies and her involvement with shuttered sports rebroadcaster Locast, as a board member for its operator Sports Fans Coalition, conversely failed to sway any Democrats. Law enforcement groups have cited Sohn’s past interactions with anti-police social media posts and her role as an EFF board member (see 2201040071) due to that group’s backing of end-to-end encryption and “user-only-access” to mobile devices.

Senate Commerce Chair Maria Cantwell, D-Wash., told reporters she wasn’t sure if Rosen heard a dialogue Cantwell had with Sohn early in the hearing in which the nominee refuted many of the claims law enforcement groups have made. FOP and other groups’ claims “seem to be not the right characterization” of Sohn’s views, Cantwell said. “She supports making sure” law enforcement groups “have access” to data from mobile devices, among other things, but “she just wants there to be an actual warrant” allowing that. Sohn said she’s “baffled” by what she views as “overwrought” law enforcement opposition to her confirmation. She believes her social media commentary about law enforcement has been “banal” and emphasized she doesn’t support defunding the police.

Rosen refused to tell reporters later whether the law enforcement groups’ concerns mean she’s now going to reevaluate her position on Sohn. “I’m still just evaluating what everyone is bringing up” about the nominee, she said. Rosen shifted to backing Sohn last year after the nominee promised to meet with Nevada broadcasters about concerns the industry raised about her IP stances and Locast ties (see 2201050056). Senate Commerce ultimately tied 14-14 on Sohn in March (see 2203030070), which began a stall that lasted the remainder of the year.

Undecided Democrats

Rosen isn’t the only Senate Democrat whose position on Sohn remains in doubt within the 51-member caucus. Fellow Nevada Democratic Sen. Catherine Cortez Masto told us Monday law enforcement groups’ objections mean she remains undecided. She said there’s nothing “I’m aware of” that Sohn could say about the issues those groups raise that would make her shift to actively supporting the nominee. Sen. Mark Kelly of Arizona, another Democrat steadfastly undecided on Sohn, told us Sohn remains “one” of Biden’s nominees “that I continue to look at and have concerns about.”

Senate Commerce member Jon Tester of Montana told us he’s not an automatic yes vote on Sohn despite joining other panel Democrats in supporting her last year. “I was tied up attending a balloon conference” while Sohn’s confirmation hearing was happening, “so I’m going to read the transcript and make a decision then,” Tester said.

Sen. Kyrsten Sinema, I-Ariz., asked Sohn during the Tuesday hearing about her views on law enforcement and her commitment to temporarily recuse herself from some FCC proceedings involving retransmission consent and broadcast copyright matters (see 2202020069) but didn’t indicate whether she’s again undecided on the nominee. Sinema, when she was still a registered Democrat last year, backed Sohn after being the remaining holdout before Commerce’s tied vote on the nominee. Rosen, Sinema and Tester face potentially competitive re-election fights in 2024.

Cantwell is “not sure yet” when Senate Commerce will bring Sohn up for a vote. She wants to “see what peoples’ interpretation of the hearing was” before she’ll be sure whether there will be enough votes in the 14-13 majority Democratic panel to advance Sohn. “She did great” during the hearing, Cantwell told reporters. “My colleagues who were critiquing her … on her associations and things that organizations did. There was very little true policy discussion about her views.”

'Proxy Fight'

Recent “personal attacks” against Sohn “are distractions from the fact that” the nominee “is immensely qualified for this position” and would be “highly effective” as an FCC commissioner if confirmed, Cantwell said during the hearing. She at first thought opposition to Sohn was “a proxy fight for net neutrality,” but now believes “the vitriol of these attacks” stems from expectations that the nominee if confirmed will “fight for affordable broadband anywhere … and somehow if affordable broadband gets deployed anywhere, then somehow affordable broadband might get deployed everywhere.” She thinks “there’s probably billions of dollars are at stake here and that is why the vitriol is coming at” Sohn. “I hope that we can see through that,” Cantwell said.

It does not appear that any of my Republican colleagues” have changed their positions on Sohn, but Democrats have been able to clarify “false attacks” against the nominee, Senate Communications Subcommittee Chairman Ben Ray Lujan, D-N.M., told us. “I appreciate the record is being made straight,” and he’s hopeful Senate Commerce will be able to vote on Sohn soon. It’s “been 755 days” since the FCC shifted to a 2-2 partisan split and “I know we want to” return to a full-functioning commission, Lujan said during the hearing. “We’re seeing this stalled for way too long,” particularly since it stymied the FCC from acting on matters like fines Chairwoman Jessica Rosenworcel proposed in September against the major wireless carriers for allegedly failing to safeguard data on their customers' real-time locations (see 2212190055).

The FCC seat Sohn would occupy “remains vacant because the companies that are legally subject to oversight by the FCC don’t want a watchdog,” Lujan said. “These companies have spent an enormous amount of money and influence to keep this position vacant. The more that I read, the more time that goes by, it seems more and more clear to me.” Other Democrats also defended Sohn Tuesday, including Sens. Tammy Baldwin of Wisconsin and Ed Markey of Massachusetts.

Sohn “isn’t the right nominee for this job, and her repeated displays of extremism, poor ethics, bad judgment, and disdain for Congress reveal that she’s unfit to be trusted with such vast power,” Cruz said. “Both during this process and in her previous positions, she has shown herself to be an extreme partisan who lacks the impartiality and candor necessary to serve in a leadership position at a powerful independent regulatory agency,” he said. Three freshman Commerce GOP members -- Ted Budd of North Carolina, Eric Schmitt of Missouri and J.D. Vance of Ohio -- declared their opposition to the nominee.

Cruz cited Sohn's contributions to Democratic senators' re-election campaigns since her first nomination, which included ones to Cortez Masto and three others the American Accountability Foundation cites as reason for the four Democrats to recuse themselves from voting on the nominee (see 2302080043). "It's poor judgement to cut checks to senators who are voting on your nomination while it's pending," Cruz said. "No other nominee that we could find has ever done" that. Those were "relatively small donations," so "I don't" think it's inappropriate, Sohn said. "I'm a citizen who just wanted to participate in the Democratic process."

Senate Communications ranking member John Thune of South Dakota was among several Republicans who cited the FCC Office of Inspector General’s 2016 determination that Sohn, then a senior counselor to then-commission Chairman Tom Wheeler, was responsible for disclosing some of the information media outlets published about commissioners’ private Lifeline compromise with Wheeler’s authorization (see 1610060067). The OIG said Sohn wasn’t the only source of information included in reports from Broadcasting and Cable and Politico. OIG couldn’t conclude that leaked information didn’t also come from outside the FCC and said the information was moving beyond its nonpublic status when Wheeler authorized Sohn to disclose the information to Politico.

Sohn’s role in disclosing some of the Lifeline deal information “speaks to the fact that if confirmed, you’re not going to bring the spirit of bipartisanship that present and past commissioners have demonstrated,” Thune said. Disclosure of the information “blew up a bipartisan deal” that was still germinating at the time the media reports published. Sohn countered that although she did contact Politico to confirm the Lifeline deal, she didn’t reveal specific information on the compromise budget cap. Wheeler’s authorization to call Politico meant the disclosure was “no longer a leak,” Sohn said.