[Senate Hearing 117-902]
[From the U.S. Government Publishing Office]
S. Hrg. 117-902
NOMINATION OF GIGI B. SOHN,
NOMINEE TO BE COMMISSIONER,
FEDERAL COMMUNICATIONS COMMISSION
=======================================================================
HEARING
before the
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED SEVENTEENTH CONGRESS
SECOND SESSION
__________
FEBRUARY 9, 2022
__________
Printed for the use of the Committee on Commerce, Science, and
Transportation
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available online: http://www.govinfo.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
57-138 PDF WASHINGTON : 2024
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
ONE HUNDRED SEVENTEENTH CONGRESS
SECOND SESSION
MARIA CANTWELL, Washington, Chair
AMY KLOBUCHAR, Minnesota ROGER WICKER, Mississippi, Ranking
RICHARD BLUMENTHAL, Connecticut JOHN THUNE, South Dakota
BRIAN SCHATZ, Hawaii ROY BLUNT, Missouri
EDWARD MARKEY, Massachusetts TED CRUZ, Texas
GARY PETERS, Michigan DEB FISCHER, Nebraska
TAMMY BALDWIN, Wisconsin JERRY MORAN, Kansas
TAMMY DUCKWORTH, Illinois DAN SULLIVAN, Alaska
JON TESTER, Montana MARSHA BLACKBURN, Tennessee
KYRSTEN SINEMA, Arizona TODD YOUNG, Indiana
JACKY ROSEN, Nevada MIKE LEE, Utah
BEN RAY LUJAN, New Mexico RON JOHNSON, Wisconsin
JOHN HICKENLOOPER, Colorado SHELLEY MOORE CAPITO, West Virginia
RAPHAEL WARNOCK, Georgia RICK SCOTT, Florida
CYNTHIA LUMMIS, Wyoming
Lila Helms, Staff Director
Melissa Porter, Deputy Staff Director
George Greenwell, Policy Coordinator and Security Manager
John Keast, Republican Staff Director
Crystal Tully, Republican Deputy Staff Director
Steven Wall, General Counsel
C O N T E N T S
----------
Page
Hearing held on February 9, 2022................................. 1
Statement of Senator Cantwell.................................... 1
Statement of Senator Wicker...................................... 3
Statement of Senator Blumenthal.................................. 33
Statement of Senator Blunt....................................... 34
Statement of Senator Markey...................................... 36
Statement of Senator Thune....................................... 37
Statement of Senator Baldwin..................................... 39
Statement of Senator Fischer..................................... 41
Statement of Senator Blackburn................................... 42
Statement of Senator Peters...................................... 44
Statement of Senator Moran....................................... 46
Statement of Senator Rosen....................................... 48
Statement of Senator Scott....................................... 50
Statement of Senator Sullivan.................................... 52
Statement of Senator Young....................................... 57
Statement of Senator Cruz........................................ 58
Statement of Senator Lee......................................... 62
Witnesses
Gigi B. Sohn, Nominee to be Commissioner, Federal Communications
Commission..................................................... 5
Prepared statement........................................... 7
Biographical information......................................... 8
Appendix
Gigi B. Sohn opposition letters.................................. 65
Gigi B. Sohn support letters..................................... 67
Response to written questions submitted to Gigi B. Sohn by:
Hon. Maria Cantwell.......................................... 121
Hon. Kyrsten Sinema.......................................... 125
Hon. Raphael Warnock......................................... 126
Hon. Roger Wicker............................................ 126
Hon. John Thune.............................................. 132
Hon. Roy Blunt............................................... 135
Hon. Ted Cruz................................................ 136
Hon. Deb Fischer............................................. 142
Hon. Jerry Moran............................................. 143
Hon. Dan Sullivan............................................ 145
Hon. Marsha Blackburn........................................ 147
Hon. Todd Young.............................................. 148
Hon. Mike Lee................................................ 150
Hon. Ron Johnson............................................. 151
Hon. Shelley Moore Capito.................................... 152
Hon. Rick Scott.............................................. 153
Hon. Cynthia Lummis.......................................... 153
NOMINATION OF GIGI B. SOHN,
NOMINEE TO BE COMMISSIONER,
FEDERAL COMMUNICATIONS COMMISSION
----------
WEDNESDAY, FEBRUARY 9, 2022
U.S. Senate,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m., in
room SR-253, Russell Senate Office Building, Hon. Maria
Cantwell, Chair of the Committee, presiding.
Present: Senators Cantwell [presiding], Klobuchar,
Blumenthal, Schatz, Markey, Peters, Baldwin, Duckworth, Tester,
Rosen, Hickenlooper, Warnock, Wicker, Thune, Blunt, Cruz,
Fischer, Moran, Sullivan, Lee, Young, Scott, and Blackburn.
OPENING STATEMENT OF HON. MARIA CANTWELL,
U.S. SENATOR FROM WASHINGTON
The Chair. Good morning. The U.S. Senate Committee on
Commerce, Science, and Transportation will come to order. We
are here today to consider the nomination of Gigi Sohn to be
Commissioner of the Federal Communications Commission.
Ms. Sohn, thank you for appearing again before the
Committee and for your continued commitment to serve. Many
members will remember that Ms. Sohn has already appeared before
the Committee, and she has graciously come back to answer
questions and communicate with members. I think it shows the
kind of transparent and open process that she would have as
Commissioner of the FCC.
It is a step that most people probably wouldn't do, but I
think it speaks highly of her and the way that she believes in
conducting herself. So thank you, Ms. Sohn, very much for that.
I want to also thank members for again trying to address these
issues. The Federal Communications Commission is a very
important organization, and we all know that there are
important issues there that affect the daily lives of many
people.
For example, the Commission is trying to be more aggressive
about unwanted robocalls and text messaging, and the laws that
companies should be complying with to report data breaches
earlier so consumers know in real time about the threat of
their personal information. The pandemic has demonstrated how
essential broadband is in the 21st century economy and the
importance of the FCC's COVID-19 telehealth program, Emergency
Broadband Connectivity, and the fund to keep people connected
to their doctors.
The FCC is critical to making sure that funding in the
COVID relief law gets to schools and libraries and children,
and Ranking Member Wicker and I have also been focused on
getting our broadband mapping updated. So we really have no
time to waste, no time to waste in an information age of
getting an FCC Commissioner to help us on these issues of high
quality Internet services to rural communities, to getting
access to millions of Americans, to updating our broadband
maps, and the legislation that was passed in the bipartisan
infrastructure bill.
With Ms. Sohn, we couldn't have a more qualified person. 30
years of experience working on telecommunications policy,
including Senior Adviser to Chairman Wheeler at the FCC. She is
a prominent voice in the telecommunications arena, leading the
charge on accessible and affordable broadband, consumer
protection, and competition. She has demonstrated a track
record of convening a broad range of stakeholders from both
sides of the aisle to achieve these goals.
As a founder and leader of a nonprofit organization, she
has shepherded a new era of advocacy of telecommunications
policy in the information age and has been in the middle of
every major debate that has transpired in the shaping of the
regulatory framework on these important policy issues. So Ms.
Sohn's nomination, I also believe is historic being the first
openly gay Commissioner on the FCC. Another milestone in the
diversity that is so important, I think, and inclusion in
talking about issues.
Ms. Sohn's nomination has been lauded by many individual
groups on both sides of the aisle. She is supported by more
than 200 organizations and people across the political
spectrum, including advocates for the Deaf Library Association,
civil rights, community media, workers' rights, consumer
advocacy companies, and trade associations.
Her appeal is also bipartisan, including members of
conservative media organizations and legislators from--in
various states across the United States. I know I have heard
from people in my State legislature, so I am not surprised of
other members here have also heard from them as well. Ms. Sohn
would be the first to tell you she does have opinions, and you
have strong beliefs and have been fighting for them over the
decades.
Many people who seek these jobs also have strong opinions,
and I have been one who has had to vote for many people where I
might have disagreed with their opinions or some statements
that they made while serving in a different capacity.
Ms. Sohn will lend her decades long expertise to important
issues and guidance that the FCC needs to tackle in these
issues. I am sure the process of her--we have been very
accommodating on the working with our colleagues on the other
side of the aisle.
Our colleagues asked for more time before Ms. Sohn's
original hearing. We granted that. Members asked for this
hearing. And I would just say to individuals, I know that many
of you either did not meet with Ms. Sohn or maybe in the QFRs
had questions and so that is why we are here today to answer
those questions.
And so I appreciate again her willingness. And on an
additional note, our outpouring of love at the last hearing to
Senator Lujan--I got a text from him yesterday, and he said he
very much looks forward to rejoining us and sends his love back
to the Committee. So with that, I will turn it over to the
Ranking Member.
STATEMENT OF HON. ROGER WICKER,
U.S. SENATOR FROM MISSISSIPPI
Senator Wicker. Thank you, Senator Cantwell. And it is nice
to have a good report from our friend Ben Ray Lujan, and we
certainly wish him well and look forward to seeing him soon.
And thank you for holding this extremely important hearing to
consider further the nomination of Ms. Gigi Sohn to be a
Commissioner of the Federal Communications Commission.
I want to express my appreciation to Senator Cantwell for
working with me and for agreeing to my request for this
additional hearing. Let me begin by stressing that although I
disagree with Ms. Sohn on a number of policy matters, such as
rate regulation, I do not intend to discuss those disagreements
today. Perhaps others will, but I do not. I will also note that
this hearing is not about obstructing a nominee.
Many members on this side of the dais have voted to report
many, many nominees out of this committee favorably nominated
by President Biden, including a nominee for the FCC. It gives
me no pleasure to say that my reason for being here today is to
discuss outstanding questions about Ms. Sohn's fitness and
ability to serve as a Commissioner, particularly in light of
developments that occurred after our hearing of December 1st of
2021.
Some of the matters that require further examination
include Ms. Sohn's service on the Board of Sports Fans
Coalition New York, Inc., as well as the settlement agreement
that this entity and its directors reached with several
broadcasters regarding its illegal Locast service.
Additionally, a number of questions surround Ms. Sohn's
recently released voluntary recusal letter which would bar her
from participating in the FCC's retransmission consent and
television copyright matters for at least three and possibly
four years.
I expect my colleagues will have additional matters they
would like to discuss with Ms. Sohn in today's hearing. The
settlement agreement between Sports Fans Coalition New York,
Inc. and broadcasters is troubling for many reasons.
Broadcasters had accused Sports Fans Coalition New York, Inc.
of infringing on their copyrights in the operation of the
Locast service. Yet the parties settled this dispute with the
coalition agreeing to pay just $700,000 out of the $32 million
in statutory damages they reportedly owed.
I recognize that settlement agreements are common in
litigation. But a settlement for a fraction of the statutory
damages stands out. Ms. Sohn has not been forthcoming on this
settlement. I have in my hand--questions for the record. When I
asked her about the source of the $32 million settlement, she
did not acknowledge that it had been reduced to $700,000. This
rate raises questions as to what else she is not revealing
about this litigation.
What also makes this settlement troubling is that Ms. Sohn
and most of the other parties signed the agreement 1 day after
President Biden announced his intent to nominate her to the
FCC. This timing raises questions. Did the parties know that in
settling a claim for 2 percent of the amount of statutory
damages, they were settling with a future FCC Commissioner?
Did the White House know of the forthcoming settlement when
deciding the timing of Ms. Sohn's nomination announcement? Did
any of these factors influence the decision to settle and the
amount of the settlement? What are the ethical issues of
parties accepting a 98 percent reduction, plaintiffs accepting
a 98 percent reduction in financial damages for being
potentially subject to regulation by Ms. Sohn?
This committee needs clarity on the settlement. We need to
know whether it is fully satisfied and whether the directors of
Sports Fans Coalition New York, Inc., including Ms. Sohn,
remain liable for any part of it. We need to know Ms. Sohn's
role in negotiating the settlement and whether her nomination
affected it in any way. Further, our December 2021 nominations
hearing from Ms. Sohn showed that members on both sides of the
aisle have had concerns about her ability to remain impartial
on matters related to broadcasters and their content.
Two weeks ago, Ms. Sohn sent a letter to the FCC
voluntarily recusing herself from any proceeding concerning
retransmission consent or television broadcast copyright.
However, in a puzzling move, she based his refusal on a single
filing at the Commission, while she was President of the
advocacy group Public Knowledge.
If Ms. Sohn feels she cannot be viewed as impartial on
matters related to this particular filing and docket, should
the same rationale extend to many other subject matters, that
Public Knowledge submitted filings on--during her tenure? A
number of industry associations have expressed a concern that
she suffers similar conflicts or at least the appearance of
conflicts to the one she identified in her recusal letter.
Based on Ms. Sohn's own stated reasoning, it seems to me
there may be additional matters from which she would need to
recuse herself if she follows this rationale. In addition to
the substantive questions pertaining to this recusal, I am also
concerned about the circumstances that led to the drafting and
the release of the recusal letter. The timing and scope of the
recusal raise several questions that I hope we get answers to
today.
In particular, who was involved with the formulation of the
recusal agreement? Was the support of any individual or entity
predicated on the signing of such an agreement? Was this
recusal a quid pro quo, as others have asserted? What prompted
Ms. Sohn to recuse herself voluntarily and why now? Given the
importance of the FCC's--FCC Commissioner's position and the
need for all Commissioners to participate fully in the agency's
work, I am doubtful that Ms. Sohn's recusal resolves the
outstanding concerns many members still have.
A fair assessment would lead one to conclude the public
deserves a regulator they can trust to be impartial in all
matters, as well as one who can actually do the job for which
she was nominated. Ms. Sohn is a brilliant attorney, and I have
noted before that all who know her would agree she is
knowledgeable and a determined advocate.
But with these rising complications besetting her potential
service as an FCC Commissioner, I question whether she is the
best choice to fill this vacancy. There are indeed many other
qualified candidates who would not have to recuse themselves
and answer questions about legal settlements. I want to thank
Ms. Sohn for appearing before the Committee, and I can thank
the Chair.
And I await her testimony on these vital issues. Thank you,
Madam Chair.
The Chair. Ms. Sohn, welcome. Thank you again for coming
back and very much appreciate your openness and your
willingness to discuss these issues. Again, I think it shows
your level of transparency in making sure that issues can be
done on a bipartisan basis. Thank you.
STATEMENT OF GIGI B. SOHN, NOMINEE TO BE
COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION
Ms. Sohn. Good morning, Chairwoman Cantwell, Ranking Member
Wicker, and members of the Committee. Before I start, I want to
send wishes for a full and fast recovery to Senator Lujan. It
has been an honor getting to know him during this process, and
I look forward to seeing him on this dais again.
I would like to reintroduce myself before I address two
matters that have been raised in recent weeks. I have been a
public interest lawyer for over 30 years, working toward one
goal, ensuring that all Americans have access to affordable,
open, and robust communications networks, be they broadcasting,
cable, or broadband. During that time, I have lined up on the
same side and other times in opposition to every regulated
industry.
I am an advocate for the public. That is what I do. If I am
confirmed, I would be the first public interest advocate to sit
on the FCC. Yet, unlike the numerous nominees for FCC seats
that have worked for Commission regulatees, represented them as
clients, or served on their Boards, I have been subject to
unrelenting, unfair, and outright false criticism and scrutiny.
This is despite the fact that I have had over 250
organizations and policy experts, and 350,000 citizens voice
their support, including in letters to this committee and in
Op-eds. Many are Republicans and people you would never think
in a million years would support me. In fact, the Parents
Television Council just supported me this morning. For a fifth
FCC Commissioner seat, not the Chair who controls the agenda,
that is probably a record.
At the same time, I realize this isn't all about me. It is
about some wanting to stop the FCC from doing its important
work ensuring that everyone in America has robust broadband
regardless of who they are, what their income is, or where they
live, as mandated by the bipartisan infrastructure law. It is
about stopping the FCC from ensuring that the media is diverse
and serves the needs of local communities. It is about stopping
the FCC from ensuring that our networks are resilient when the
next disaster hits so that the public stays connected and safe.
And it is about stopping the work Congress, including all
of you and your predecessors, have charged this important
agency with doing. A deadlocked agency helps nobody save for a
few huge corporations. But most importantly, it hurts the
American people who need the FCC to make hard decisions. Now, I
will address some of the questions that have been raised around
the confidential Locast settlement agreement and my voluntary
and temporary recusal from some matters involving
retransmission consent and TV broadcast copyright.
First, the Locast settlement. As press reports have made
clear, I have no financial liability stemming from the lawsuit.
Indeed, I never did from the day I joined the Sports Fans
Coalition Board. This wasn't a settlement agreement that I
negotiated. SFCNY negotiated, and with the full and eager
consent of the network, plaintiffs set the amount to be paid at
$700,000-plus SFCNY agreeing to turn over Locast to use
equipment to them.
Why didn't I mention this number in my response to Senator
Wicker's question for the record? Because the confidential
settlement agreement barred me, as well as the network
plaintiffs and SFCNY from mentioning the terms of the agreement
in writing.
This was a fact that whoever leaked the agreement to the
press conveniently omitted. Also omitted was the fact that the
enforceable terms sheet setting forth the particulars of the
settlement was signed on October 12, two weeks before I was
nominated for this position. That term sheet is expressly
referred to in the settlement agreement.
On October 12, when the settlement between the networks and
SFCNY was signed by the representatives, I had no idea whether
or not I was going to be nominated or when--or if I was going
to be nominated at all, and the parties didn't know either. I
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.
Now, freed from the public disclosure of this information,
despite a court order confirming all the terms of the
settlement agreement, including the duty not to discuss them
with the press, I am here to answer the baseless rumors that
have swirled around this issue. Second, I will address my
voluntary recusal, which I undertook because of concerns raised
at the December 1 hearing in QFRs by members of this committee
about my involvement with Locast.
The recusal is narrowly tailored and tied to my personal
participation in a 12 year old petition for rulemaking the
organization and representative filed seeking changes to the
retransmission consent regime, a docket that remains open.
There is precedent for such a voluntary recusal.
In 1998, then Chairman Kennard recused himself from the
Fairness Doctrine related docket when he discovered that he had
signed a pleading in that docket as an NAB intern. So this is
not unprecedented. I know that industry is saying that, but
that is not true. As experts have noticed, my 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, in public knowledge,
have ever advocated. Such a result would be perverse and would
prohibit anyone, probably prohibit anyone, not just public
interest advocates and academics who has taken any public
position on telecommunications and media policy, from serving
on the FCC.
A Federal district court judge recently rejected a similar
wide-ranging request in a case involving an effort to accuse a
senior Government official. He said, ``it is natural that the
President would select a candidate based on her past
experiences and views, including on topics that are likely to
come before the Commission during her tenure and how that
Administrator will implement the Administration's priorities.
Courts must tread carefully when reviewing cases in this
area lest we eviscerate the proper evolution of policymaking
were we to disqualify every Administrator who has opinions on
the correct course of his agency's future action.'' I have and
will continue to answer each and every one of your questions
with complete honesty and to the best of my knowledge. Thank
you.
[The prepared statement and biographical information of Ms.
Sohn follow:]
Prepared Statement of Gigi B. Sohn, Nominee to be Commissioner,
Federal Communications Commission
Good morning, Chairwoman Cantwell, Ranking Member Wicker, and
members of the Committee.
Before I start, I want to send wishes for a full and fast recovery
to Senator Lujan. It's been an honor getting to know him during this
process and I look forward to seeing him on this dais again.
I'd like to re-introduce myself before I address two matters that
have been raised in recent weeks.
I've been a public interest lawyer for over 30 years, working
towards one goal--ensuring that all Americans have access to
affordable, open, and robust communications networks, be they
broadcasting, cable or broadband. During that time, I have lined up on
the same side, and other times in opposition, to every regulated
industry. I'm an advocate for the public--it's what I do. If I'm
confirmed I would be the first public interest advocate to sit on the
FCC.
Yet unlike the numerous nominees for FCC seats that have worked for
Commission regulatees, represented them as clients, or served on their
boards, I have been subject to unrelenting, unfair, and outright false
criticism and scrutiny. This is despite the fact that I've had over 250
organizations and policy experts and 350,000 citizens voice their
support, including in letters to this Committee and in op-eds. Many are
Republicans and people you'd never think in a million years would
support me. For a fifth FCC Commissioner seat, not the Chair who
controls the agenda, that's probably a record.
At the same time, I realize that this isn't all about me. It's
about some wanting to stop the FCC from doing its important work
ensuring that everyone in America has robust broadband regardless of
who they are, what their income is or where they live, as mandated by
the Bipartisan Infrastructure Law. It's about stopping the FCC from
ensuring that the media is diverse and serves the needs of local
communities. It's about stopping the FCC from ensuring that our
networks are resilient when the next disaster hits so that the public
stays connected and safe. And it's about stopping the work Congress,
including all of you and your predecessors, have charged this important
agency with doing. A deadlocked agency helps almost nobody, save for a
few huge corporations. But most importantly, it hurts the American
people who need the FCC to make hard decisions.
Now I'll address some of the questions that have been raised around
the confidential Locast settlement agreement and my voluntary and
temporary recusal from some matters involving retransmission consent
and TV broadcast copyright.
First, the Locast settlement. As press reports have made clear, I
have no financial liability stemming from the lawsuit and indeed, I
never did from the day I joined the Sports Fans Coalition, NY (SFCNY)
Board. This wasn't a settlement agreement that I negotiated--SFCNY
negotiated it, and with the full and eager consent of the network
plaintiffs, set the amount to be paid as $700,000 plus SFCNY agreeing
to turn over Locast's used equipment to them. Why didn't I mention this
number in my response to Senator Wicker's questions for the record?
Because the confidential settlement agreement barred me--as well as the
network plaintiffs and SFCNY--from mentioning the terms of the
agreement in writing. 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 on October 12, two
weeks before I was nominated for this position. That term sheet is
expressly referred to in the settlement agreement. On October 12, when
the settlement between the networks and SFCNY was signed by their
representatives, I had no idea whether or when I would be nominated.
I 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. Now freed by the public disclosure of this
information, despite a court order, confirming all of the terms of the
settlement including the duty not to discuss them in the press, I'm
here to answer the baseless rumors that have swirled around this issue.
Second, I'll address my voluntary recusal, which I undertook
because of concerns raised at the December 1 hearing and QFRs by
members of this Committee about my involvement with Locast. The recusal
is narrowly tailored and tied to my personal participation in a 12-
year-old Petition for Rulemaking the organization I represented filed
seeking changes to the retransmission consent regime, a docket that
remains open. There is precedent for such a voluntary recusal--in 1998,
then-Chairman Kennard recused himself from a fairness doctrine-related
docket when he discovered he had signed a pleading in that docket as an
NAB intern. See Radio Television News Directors Ass'n v. Federal
Communications Commission, 185 F.3d 872, 878 (DC Cir. 1999).
As experts have noted, my 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.
Such a result would be perverse, and probably would prohibit
anyone--not just public interest advocates and academics--who has taken
any public position on telecommunications and media policy from serving
on the FCC.
A Federal district court judge recently rejected a similar wide-
ranging request in a case involving an effort to recuse a senior
government official. He said:
It is natural that the President will select a candidate based
on her past experiences and views, including on topics that are
likely to come before the Commission during her tenure, and how
that administrator will implement the Administration's
priorities. Courts must tread carefully when reviewing cases in
this area lest we ``eviscerate the proper evolution of
policymaking were we to disqualify every administrator who has
opinions on the correct course of his agency's future action.''
Federal Trade Commission v. Facebook, Memorandum Opinion in Civil
Action No. 20-3590 at 43 (January 11, 2022).
I have and will continue to answer each and every one of your
questions with complete honesty, and to the best of my knowledge. Thank
you.
______
a. biographical information
1. Name (Include any former names or nicknames used): Gigi Beth
Sohn.
2. Position to which nominated: Commissioner, Federal
Communications Commission.
3. Date of Nomination: October 26, 2021.
4. Address (List current place of residence and office addresses):
Residence: Information not released to the public.
Office: Information not provided.
5. Date and Place of Birth: August 2, 1961; Rockville Centre, New
York.
6. Provide the name, position, and place of employment for your
spouse (if married) and the names and ages of your children (including
stepchildren and children by a previous marriage).
Spouse: Lara Ann Ballard, Privacy and Intelligence Oversight
Officer, Office of Investigations and Analysis, U.S. Department
of Homeland Security
7. List all college and graduate degrees. Provide year and school
attended.
College: Boston University, September 1979-May 1983. Graduated
with a B.S. in Broadcasting and Film, Summa Cum Laude
Law School: University of Pennsylvania Carey School of Law,
September 1983-May 1986. Graduated with a Juris Doctor.
8. List all post-undergraduate employment, and highlight all
management-level jobs held and any non-managerial jobs that relate to
the position for which you are nominated.
Secondary Mortgage Company, Boston Massachusetts
Clerk, Summer 1983
Boston Colonial Theater, Boston Massachusetts
Bartender, Summer 1983
Quincy Market Engraving Station, Boston Massachusetts
Retail Clerk/Engraver, Summer 1983
DC Court of Appeals, Washington, DC
Law Clerk, Summer 1984
Zuckert, Scoutt & Rasenberger, Washington, DC
Summer Associate, Summer 1985 Associate, September 1986-August
1988
Tomar, Parks, Seliger, Simonoff & Adourian, Haddonfield, New
Jersey (now defunct)
Law Clerk, School Year 1985
University of Pennsylvania Law School Civil Practice Clinic,
Philadelphia, PA
Law Clerk, Summer 1986
Media Access Project, Washington, DC (Management-level)*
Executive Director, September 1996 to March 1999
Deputy Director, November 1990 to August 1996
Staff Attorney, September 1988 to October 1990
Benjamin N. Cardozo School of Law, Yeshiva University, New
York, NY*
Adjunct Professor, January 2001 to May 2001
Ford Foundation, New York, NY*
Project Specialist, August 2000 to January 2001
Consultant, May 1999 to July 2000
Public Knowledge, Washington, DC (Management-level)*
Co-Founder, President & Chief Executive Officer, August 2001 to
October 2013
Georgetown University, Washington, DC*
Adjunct Professor, Fall 2002
Federal Communications Commission, Washington, DC (Management-
level)*
Counselor to the Chairman, March 2015 to December 2016
Special Counsel for External Affairs, November 2013 to February
2015
Self-Employed, Washington, DC (see Fellowships below)*
January 2017 to present
Institute for Technology Law & Policy at Georgetown Law,
Washington, DC* (Management-level)
Distinguished Fellow, April 2017 to present
Benton Institute for Broadband and Society, Chicago, IL*
Senior Fellow and Public Advocate, October 2017 to present
Open Society Foundations, New York, NY*
Leadership in Government Fellow, January 2017-January 2018
Mozilla Foundation, San Francisco, CA*
Fellow, February 2017-November 2018
*Indicates a job that relates to the position for which I am
nominated.
9. Attach a copy of your resume. Attached (Attachment A).
10. List any advisory, consultative, honorary, or other part-time
service or positions with Federal, State, or local governments, other
than those listed above, within the last ten years.
University of Colorado School of Law, Silicon Flatirons Center
for Law, Technology & Entrepreneurship
Senior Adjunct Fellow, March 2008 to October 2013
Center for Copyright Information
Member, Advisory Board, September 2011 to October 2013
Open Markets Institute
Member, Advisory Board, March 2020 to present
Engelberg Center on Law & Innovation Policy, NYU Law School
Member, Advisory Board, November 2019 to present
11. List all positions held as an officer, director, trustee,
partner, proprietor, agent, representative, or consultant of any
corporation, company, firm, partnership, or other business, enterprise,
educational, or other institution within the last ten years.
Sports Fans Coalition NY, Inc.
Board Member, March 2020 to present
Electronic Frontier Foundation (EFF)
Board Member, December 2018 to present
Broadband Internet Technical Advisory Group (BITAG)
Co-Chair, December 2011 to October 2013
Member, Board of Directors, December 2010 to October 2013
Telecommunications Policy Research Conference (TPRC)
Member, Board of Directors, November 2006 to December 2012
Board Treasurer, January 2010-December 2012
12. Please list each membership you have had during the past ten
years or currently hold with any civic, social, charitable,
educational, political, professional, fraternal, benevolent or
religiously affiliated organization, private club, or other membership
organization. (For this question, you do not have to list your
religious affiliation or membership in a religious house of worship or
institution.). Include dates of membership and any positions you have
held with any organization. Please note whether any such club or
organization restricts membership on the basis of sex, race, color,
religion, national origin, age, or disability.
Palisades Swim and Tennis Club, Cabin John, MD: 2014 to present
Dues paying member
Confidence During Kaos (CDK) Krav Maga, Chevy Chase, MD: 2017-July
2021
Dues paying member
Circle Yoga, Washington, DC: 2011-June 2021
Dues paying members
Democratic Party, Washington, DC: 2011 to present
Members by party affiliation
DC Bar, Washington, DC: 2011 to present
Dues paying member
Member, DC Bar Board of Governors: 1997-2000
Federal Communications Bar Association, Washington, DC: 2011 to
present
Dues paying member
Served on nominations Committee
Served as a featured speaker and mentor at many FCBA events
Ben Murch Home and School Association, Washington, DC: 2011-2016
Dues paying member
Alice Deal Community Association, Washington, DC: 2016-2019
Dues paying member
National Museum of African-American History and Culture,
Washington, DC: 2016 to present
Charter member/Director's Circle Member
Friends of the National Zoo, Washington, DC: 2011-2020
Dues paying member
Politics & Prose, Washington, DC: est. 2012 to present
Dues paying member
Electronic Frontier Foundation, San Francisco, CA: 2017 to present
Board Member
Dues paying member
National Museum of the American Indian, Washington, DC: est. 2014-
2018
Dues paying members
WAMU: 88.5 FM, Washington, DC: 2011 to present
Dues paying sustaining member
WWOZ New Orleans 90.7, New Orleans, LA: 2016 to present
Dues paying sustaining members
Consumer Reports, Yonkers, NY: 2017 to present
Dues paying member
National LGBTQ Task Force, Washington, DC: est. 2013-2018
Dues paying member
13. Have you ever been a candidate for and/or held a public office
(elected, non-elected, or appointed)? If so, indicate whether any
campaign has any outstanding debt, the amount, and whether you are
personally liable for that debt.
I have never been a candidate for nor held a public office.
14. List all memberships and offices held with and services
rendered to, whether compensated or not, any political party or
election committee within the past ten years. If you have held a paid
position or served in a formal or official advisory position (whether
compensated or not) in a political campaign within the past ten years,
identify the particulars of the campaign, including the candidate, year
of the campaign, and your title and responsibilities.
I am a member of the Democratic party but have never held any
position, paid or otherwise, in the party.
I served as a policy volunteer for the Biden-Harris Campaign from
July 2020-November 2020 and as a policy volunteer for the Obama-Biden
Campaign from May 2008-November 2008.
15. Itemize all political contributions to any individual, campaign
organization, political party, political action committee, or similar
entity of $500 or more for the past ten years.
Biden for President (2020): $2985.69
Biden Victory Fund (2020): $1885.69
Warren for President (2020): $1418.30
Booker Senate Victory/Cory Booker for Senate (2017): $500
Hillary for America (2016): $1055.56
Hillary Victory Fund (2016): $805.56
The Markey Committee (2013-2019): $1600
Tammy Baldwin For Senate (2012-2018): $1000
Obama For America (2012): $2750
Obama Victory Fund (2012): $1750
16. List all scholarships, fellowships, honorary degrees, honorary
society memberships, military medals, and any other special recognition
for outstanding service or achievements.
Fellowships
Distinguished Fellow, Georgetown Law Institute for Technology
Law & Policy
Distinguished Fellow, April 2017 to present
Senior Fellow and Public Advocate, Benton Institute for
Broadband & Society
Senior Fellow and Public Advocate, October 2017 to present
Mozilla Fellow
Fellow, February 2017-November 2018
Open Society Foundations Leadership in Government Fellow
Leadership in Government Fellow, January 2017-January 2018
University of Colorado School of Law, Silicon Flatirons Center
for Law, Technology & Entrepreneurship
Senior Adjunct Fellow, March 2008 to October 2013
University of Southern California--Annenberg Center
Non-resident Fellow, October 2006 to January 2008
University of Melbourne Faculty of Law, Graduate Studies
Program, Melbourne, VIC
Senior Fellow, June 2000
Honors
Washingtonian ``Washington's Most Influential People'' (March
2021)
National Journal ``NJ 50: 50 people changing the game in
Washington'' (November 2019)
Office of Communication of the United Church of Christ, Everett
C. Parker Award (October 2018)
Coalition for Local Internet Choice ``National Champion for
Local Internet Choice'' Award (October 2016)
One Community ``Broadband Hero'' Award (September 2014)
Non-Profit Times ``Power & Influence Top 50.'' (August 2011)
Electronic Frontier Foundation Pioneer Award (May 2006)
Gay and Lesbian Attorneys of Washington (GAYLAW) Distinguished
Community Service Award (December 1997)
American Lawyer Magazine's ``The Public Sector 45: Forty-five
Young Lawyers Outside the Private Sector Whose Vision and
Commitment are Changing Lives'' (January/February 1997)
National Law Journal's ``40 Young Attorneys Who Are Making
Their Mark'' (November 1995)
17. Please list each book, article, column, Internet blog posting,
or other publication you have authored, individually or with others.
Include a link to each publication when possible. Also list any
speeches that you have given on topics relevant to the position for
which you have been nominated. Do not attach copies of these
publications unless otherwise instructed.
List of publications and speeches attached (Attachment B).
18. List all digital platforms (including social media and other
digital content sites) on which you currently or have formerly operated
an account, regardless of whether or not the account was held in your
name or an alias. Include the name of an ``alias'' or ``handle'' you
have used on each of the named platforms. Indicate whether the account
is active, deleted, or dormant. Include a link to each account if
possible.
My website, which includes most of the news stories in which I'm
quoted, as well as most of my speeches, testimony and press statements
from 2017 to present: http://gigisohn.com/
All the episodes of my ``Tech on the Rocks'' podcast are here.
My current Twitter handle is @gigibsohn. When I worked at the FCC
from 2013-2016, my Twitter handle was: @gigibsohnFCC. The FCC account
has been dormant/inactive since the day I left the agency.
My Facebook page can be found at https://www.facebook.com/
gigi.b.sohn
My LinkedIn page can be found at https://www.linkedin.com/in/
gigisohn/
19. Please identify each instance in which you have testified
orally or in writing before Congress in a governmental or non-
governmental capacity and specify the date and subject matter of each
testimony.
List of testimony attached (Attachment C).
20. Given the current mission, major programs, and major
operational objectives of the department/agency to which you have been
nominated, what in your background or employment experience do you
believe affirmatively qualifies you for appointment to the position for
which you have been nominated, and why do you wish to serve in that
position?
I have spent nearly my entire career as an advocate for universal
and affordable access to open and democratic communications networks,
be they broadcast, cable, telephone or broadband. That is the exact
statutory mission of the FCC--to ensure that everyone in the U.S. has
access to and can use the networks that are central to an informed
democracy, a strong economy and an open society. That goal is more
important today than it has ever been, as access to broadband is
essential to full participation in our society and our economy and our
education and health care systems.
In addition to my substantive knowledge, I co-founded and built the
non-profit organization Public Knowledge, and successfully managed it
for 12 years. I left the organization in strong financial and
managerial health, and it recently celebrated its 20th anniversary.
During my tenure as Counselor to former Chairman Wheeler, I became
intimately familiar with the inner workings of the FCC. I worked with
nearly every Bureau and Office, including the other Commissioners'
offices, the Managing Director's office and other technical and
administrative offices.
Finally, over the past 30+ years, I have built a network of
colleagues, friends and advisors from across industries and sectors,
including philanthropy, academia, the public interest community and
federal, state and local policymakers. This network will be critical to
addressing what I believe is the FCC's biggest challenge--ensuring that
every household in the U.S. has affordable and robust broadband
Internet access.
21. What do you believe are your responsibilities, if confirmed, to
ensure that the department/agency has proper management and accounting
controls, and what experience do you have in managing a large
organization?
As a member of the FCC, I believe that I would have a duty to
ensure that the agency has proper management and accounting controls. I
was the President and CEO of the non-profit Public Knowledge for 12
years, and while it was not a large organization, it had its own
challenges regarding management and accounting, albeit on a smaller
scale. I was a CEO that hired a strong executive team, but took
ultimate responsibility for the finances and management of the
organization.
22. What do you believe to be the top three challenges facing the
department/agency, and why?
The FCC's top challenge is ensuring that every household in
the U.S. has affordable and robust broadband Internet access.
The COVID-19 pandemic made abundantly clear that tens of
millions of people in the U.S. lack affordable and robust
broadband Internet, and that such connectivity is essential to
ensure full participation in our society, our economy, our
education and health care systems and our civic life. The FCC
has many tools at its disposal to connect the unconnected, but
they must be deployed wisely and effectively. Moreover,
achieving the goal of universal and affordable broadband
Internet access will take an ``all-hands-on-deck'' approach,
with the Federal government, states, rural and urban
communities, the philanthropic sector, and industry working
together to build and execute a blueprint for universal
broadband. The FCC must be a leader in building and executing
this blueprint.
Another major challenge for the FCC is ensuring that our
communications networks are resilient and secure. There have
been too many instances over the past 5 years of networks
failing, often for long periods of time, as a result of major
natural disasters, which are becoming increasingly common. The
FCC must hold network operators to high standards of resiliency
to ensure that people can stay connected when it is a matter of
life and death. In addition, the FCC must ensure that our
networks are safe from malevolent actors here and abroad. News
of cyberattacks seem to arise almost daily, and the most
prominent of these, the Colonial Pipeline and Solar Winds
hacks, relied on commercial Internet providers to do their
harm. The interconnected broadband networks that underpin our
digital economy are among our most vulnerable attack conduits.
Thus, the FCC must ensure that cybersecurity is an essential
duty for network providers. This means developing an oversight
regime that requires network providers to determine best
practices, subject to regulatory oversight.
A third major challenge for the FCC is developing spectrum
policy with its Federal government colleagues that will balance
making significant amounts of spectrum for 5G mobile broadband
service (and making that spectrum available to a wide variety
of users) with also making significant amounts of spectrum
available for innovative unlicensed uses. Sound spectrum policy
is only possible with close coordination between the FCC and
other government agencies, including state and local
governments, which are critical to lowering barriers to
deployment of 5G and wireline broadband infrastructure.
b. potential conflicts of interest
1. Describe all financial arrangements, deferred compensation
agreements, and other continuing dealings with business associates,
clients, or customers. Please include information related to retirement
accounts.
In connection with the nomination process, I have consulted with
the U.S. Office of Government Ethics and the Federal Communication
Commission's Designated Agency Ethics Official to identify potential
conflicts of interest. If confirmed, any potential conflicts of
interest will be resolved in accordance with the terms of the ethics
agreement that I have entered into with the Commission's Designated
Agency Ethics Official. I am not aware of any other potential conflicts
of interest.
2. Do you have any commitments or agreements, formal or informal,
to maintain employment, affiliation, or practice with any business,
association or other organization during your appointment? If so,
please explain. No.
3. Indicate any investments, obligations, liabilities, or other
relationships which could involve potential conflicts of interest in
the position to which you have been nominated. Explain how you will
resolve each potential conflict of interest.
In connection with the nomination process, I have consulted with
the U.S. Office of Government Ethics and the Federal Communication
Commission's Designated Agency Ethics Official to identify potential
conflicts of interest. If confirmed, any potential conflicts of
interest will be resolved in accordance with the terms of the ethics
agreement that I have entered into with the Commission's Designated
Agency Ethics Official. I am not aware of any other potential conflicts
of interest.
4. Describe any business relationship, dealing, or financial
transaction which you have had during the last ten years, whether for
yourself, on behalf of a client, or acting as an agent, that could in
any way constitute or result in a possible conflict of interest in the
position to which you have been nominated. Explain how you will resolve
each potential conflict of interest.
In connection with the nomination process, I have consulted with
the U.S. Office of Government Ethics and the Federal Communication
Commission's Designated Agency Ethics Official to identify potential
conflicts of interest. If confirmed, any potential conflicts of
interest will be resolved in accordance with the terms of the ethics
agreement that I have entered into with the Commission's Designated
Agency Ethics Official. I am not aware of any other potential conflicts
of interest.
5. Identify any other potential conflicts of interest, and explain
how you will resolve each potential conflict of interest.
In connection with the nomination process, I have consulted with
the U.S. Office of Government Ethics and the Federal Communication
Commission's Designated Agency Ethics Official to identify potential
conflicts of interest. If confirmed, any potential conflicts of
interest will be resolved in accordance with the terms of the ethics
agreement that I have entered into with the Commission's Designated
Agency Ethics Official. I am not aware of any other potential conflicts
of interest.
6. Describe any activity during the past ten years, including the
names of clients represented, in which you have been engaged for the
purpose of directly or indirectly influencing the passage, defeat, or
modification of any legislation or affecting the administration and
execution of law or public policy.
During the past ten years, both in my capacity as President and CEO
of Public Knowledge, in my current and previous Fellowship positions
and in my personal capacity I have influenced the passage, defeat and
modification of legislation and affected the administration and
execution of law and public policy. This includes proposed and adopted
laws and policies affecting communications, competition and technology
law and policy. I have been asked for advice and guidance by Hill and
agency staff, have been asked to testify numerous times, have written,
spoken and appeared in media about such proposed laws and policies.
I have not represented any clients in these matters.
c. legal matters
1. Have you ever been disciplined or cited for a breach of ethics,
professional misconduct, or retaliation by, or been the subject of a
complaint to, any court, administrative agency, the Office of Special
Counsel, professional association, disciplinary committee, or other
professional group? If yes:
a. Provide the name of agency, association, committee, or group;
b. Provide the date the citation, disciplinary action, complaint, or
personnel action was issued or initiated;
c. Describe the citation, disciplinary action, complaint, or
personnel action;
d. Provide the results of the citation, disciplinary action,
complaint, or personnel action.
No.
2. Have you ever been investigated, arrested, charged, or held by
any Federal, State, or other law enforcement authority of any Federal,
State, county, or municipal entity, other than for a minor traffic
offense? If so, please explain. No.
3. Have you or any business or nonprofit of which you are or were
an officer ever been involved as a party in an administrative agency
proceeding, criminal proceeding, or civil litigation? If so, please
explain.
Yes. In 2014 a former employee of Public Knowledge who was
terminated for poor performance, refusal to abide by the terms of a
Performance Improvement Plan, and insubordination, filed an age
discrimination complaint against the organization with the DC Office of
Human Rights. The Office dismissed the complaint as without merit.
In addition, Sports Fans Coalition NY, Inc. (SFCNY), a non-profit
corporation which I serve as a board member, had a service (Locast)
that operated under a statutory copyright exemption for non-profits (17
USC 111(a)(5)). In 2019 an action was brought against SFCNY by four
broadcast networks in the District Court for the Southern District of
New York. On August 31, 2021, the District Court determined that the
exemption did not apply and Locast ceased providing service. The matter
has been settled.
4. Have you ever been convicted (including pleas of guilty or nolo
contendere) of any criminal violation other than a minor traffic
offense? If so, please explain. No.
5. Have you ever been accused, formally or informally, of sexual
harassment or discrimination on the basis of sex, race, religion, or
any other basis? If so, please explain.
I have never been so accused in my personal capacity. However, in
2014 a former employee of Public Knowledge who was terminated for poor
performance, refusal to abide by the terms of a Performance Improvement
Plan, and insubordination, filed an age discrimination complaint
against the organization with the DC Office of Human Rights. The Office
dismissed the complaint as without merit.
6. Please advise the Committee of any additional information,
favorable or unfavorable, which you feel should be disclosed in
connection with your nomination. None.
d. relationship with committee
1. Will you ensure that your department/agency complies with
deadlines for information set by congressional committees, and that
your department/agency endeavors to timely comply with requests for
information from individual Members of Congress, including requests
from members in the minority? Yes.
2. Will you ensure that your department/agency does whatever it can
to protect congressional witnesses and whistle blowers from reprisal
for their testimony and disclosures? Yes.
3. Will you cooperate in providing the Committee with requested
witnesses, including technical experts and career employees, with
firsthand knowledge of matters of interest to the Committee? Yes.
4. Are you willing to appear and testify before any duly
constituted committee of the Congress on such occasions as you may be
reasonably requested to do so? Yes.
______
ATTACHMENT A
GIGI B. SOHN
EXPERIENCE
Institute for Technology Law & Policy at Georgetown Law, Washington, DC
Distinguished Fellow, April 2017 to present
Engage in public education, outreach, coalition building and
advocacy to preserve policies that have made broadband Internet
access more ubiquitous, competitive, affordable, open and
protective of user privacy.
Provide strategic and policy advice to public interest
advocates, industry policymakers and philanthropies.
Frequent public speaker and guest on radio, television and
podcasts on communications, media and technology law and
policy.
Host of ``Tech on the Rocks'' podcast, which focuses on
communications, media and technology policy and its impact on
Americans.
Benton Institute for Broadband and Society, Chicago, IL
Senior Fellow and Public Advocate, October 2017 to present
Open Society Foundations, New York, NY
Leadership in Government Fellow, January 2017-January 2018
Mozilla Foundation, San Francisco, CA
Fellow, February 2017-November 2018
Federal Communications Commission, Washington, DC
Counselor to the Chairman, March 2015 to December 2016
Special Counsel for External Affairs, November 2013 to February 2015
Chief liaison to public interest, academic and industry
stakeholders for Federal agency that regulates communications
networks.
Advised Chainnan Tom Wheeler on a wide variety of
communications policy issues, including net neutrality,
municipal broadband, universal service programs, tribal
broadband, privacy and consumer protection.
Keynote speaker at 20+ conferences and events annually
representing the Chairman.
Conducted outreach to press and public through various
means, including social media.
Public Knowledge, Washington, DC
President & Chief Executive Officer, August 2001 to October 2013
Co-Founder and Chief Executive Officer of public interest
organization focusing on the consumer and civic dimensions of
the Internet, digital technologies and intellectual property.
Testified before Congressional Commerce and Judiciary
Committees.
Managed and supervised 20-25 employees, up to 6 law clerks
and 3 program consultants.
Frequent guest on national and local radio and television
and a speaker at dozens of conferences and seminars annually.
University of Colorado School of Law, Silicon Flatirons Center for Law,
Technology & Entrepreneurship
Senior Adjunct Fellow, March 2008 to October 2013
University of Southern California--Annenberg Center
Non-resident Fellow, October 2006 to January 2008
Georgetown University, Washington, DC
Adjunct Professor, Fall 2002
Ford Foundation, New York, NY
Project Specialist, August 2000 to January 2001
Consultant, May 1999 to July 2000
Developed strategic vision for new funding program in media
policy and technology.
Developed and negotiated grants totaling $6,000,000 in FY99-
01.
Benjamin N. Cardozo School of Law, Yeshiva University, New York, NY
Adjunct Professor, January 2001 to May 2001
University of Melbourne Faculty of Law, Graduate Studies Program,
Melbourne, VIC
Senior Fellow, June 2000
Media Access Project, Washington, DC
Executive Director, September 1996 to March 2000
Deputy Director, November 1990 to August 1996
Staff Attorney, September 1988 to October 1990
Served as chief executive of public interest communications
law firm.
Litigated mass media, new technology and First Amendment
issues before the Federal Communications Commission, Federal
Courts and the United States Supreme Court.
PROFESSIONAL APPOINTMENTS AND ACTIVITIES (partial listing)
Biden-Harris Campaign
Policy Volunteer, July 2020 to November 2020
Sports Fans Coalition NY, Inc.
Board Member, March 2020 to present
Open Markets Institute
Advisory Board Member, January 2020 to present
Electronic Frontier Foundation (EFF)
Board Member, December 2018 to present
Broadband Internet Technical Advisory Group (BITAG)
Co-Chair, December 2011 to October 2013
Member, Board of Directors, December 2010 to October 2013
Center for Copyright Information
Member, Advisory Board, September 2011 to October 2013
Obama-Biden Campaign
Policy Volunteer, May 2008-November 2008
Advisory Committee on the Public Interest Obligations of Digital
Television Broadcasters, Washington, DC (``Gore Commission'')
Member, October 1997 to December 1998
District of Columbia Bar Board of Governors, Washington, DC
Member, June 1997 to June 2000
District of Columbia Bar Task Force on Sexual Orientation and the Legal
Workplace
Member, February 1996-March 1999
Gay and Lesbian Attorneys of Washington (GAYLAW)
President, October 1994-September 1997
EDUCATION
University of Pennsylvania, Law School, Philadelphia, PA
Juris Doctor, May 1986
Boston University, College of Communication, Boston, MA
Bachelor of Science in Broadcasting and Film, May 1983; Summa Cum Laude
PUBLICATIONS (partial listing)
I have had articles published in, among others, the Washington
Post, CNN.com, Buzzfeed, NBC News Think, The Wall Street Journal,
Variety, Legal Times, The Verge, Mashable and The Hill. I have also
been an online columnist for the New York Times, Washington Post and
Wired.
I have had book chapters published in Regulators Revenge, The
Future of Telecommunications Deregulation, (Cato Institute 1998); The
Future of Media, (Seven Stories Press 2005) and Media, Technology and
Society: the Challenge of Digital Evolution (University of Michigan
Press, 2009). I have had six law review articles published.
HONORS AND AWARDS (partial listing)
Washingtonian ``Washington's Most Influential People'' (March 2021)
National Journal ``NJ 50: 50 people changing the game in Washington''
(November 2019)
Office of Communication of the United Church of Christ, Everett C.
Parker Award (October 2018)
Coalition for Local Internet Choice ``National Champion for Local
Internet Choice'' Award (October 2016)
One Community ``Broadband Hero'' Award (September 2014)
Non-Profit Times ``Power & Influence Top 50.'' (August 2011) Electronic
Frontier Foundation Pioneer Award (May 2006)
______
ATTACHMENT B
Gigi Sohn Publications & Speeches
Blog Posts & Opinion Articles
Benton Digital Beat: Mapping, Impact & Adoption: A Research Agenda For
Effective Broadband Policy (Remarks before the Association of Public
and Land-Grant Universities, January 28, 2021)
TechDirt Policy Greenhouse: The Trump FCC Has Failed to Protect Low-
Income Americans During a Health Crisis (December 4, 2020)
ProMarket: The Trump FCC Can't and Shouldn't Be the Internet Speech
Police (November 5, 2020)
Day One Project: Restoring the Federal Communications Commission's
Authority to Oversee the Broadband Market (October 2020)
Wired: Trump's FCC is Using Junk Data to Downplay Broadband Woes
(September 29, 2020)
CNN Business: How to Make Broadband Affordable and Accessible for
Everyone (September 9, 2020)
TechDirt Policy Greenhouse: The Most Important Privacy Case You've
Never Heard Of (June 30, 2020)
Wired: During the Pandemic, the FCC Must Provide Internet for All
(April 28, 2020)
Benton Digital Beat: Remembering Henry Geller (April 13, 2020)
The Verge: The FCC should let itself do more to keep Americans
connected during the pandemic (March 26, 2020)
Benton Digital Beat: In Support of Maryland Net Neutrality Act
(Testimony to Economic Matters Committee, Maryland House of Delegates,
February 26, 2020)
Benton Digital Beat: Digital Equity and Broadband Adoption (Testimony
before the U.S. House of Representatives, Committee on Energy &
Commerce, Subcommittee on Communications & Technology, January 29,
2020)
Benton Digital Beat: The State of Broadband 2020 (January 28, 2020)
Benton Digital Beat: The Not So Good, Very Bad and Really Weird Merger
of T-Mobile and Sprint (Remarks to NTCA Rural Broadband Association
Fall Legal Seminar, November 20, 2019)
Benton Digital Beat: Moving Backwards: consolidation, deregulation &
lack of accountability in the U.S. media and broadband industries
(September 23, 2019)
Benton Digital Beat: Nothing is Normal About the T-Mobile-Sprint Merger
Review (June 18, 2019)
Wired: Why a T-Mobile Sprint Merger Would Be Bad for the Public (May
22, 2019)
Benton Digital Beat: Protect Privacy in Maine (Testimony Before the
Energy, Utilities and Technology Committee, Maine LD 946, an Act to
Protect the Privacy of Online Customer Personal Information, April 24,
2019)
Benton Digital Beat: Social Justice or Inequality: The Heart of the Net
Neutrality Debate (Remarks before University of Pittsburgh Law School
Symposium on Net Neutrality, March 1, 2019)
Benton Digital Beat: Flexibility, Humility, Connectivity: Three
Ingredients for a Successful Career (Remarks before the Penn Law
Women's Association Annual Dinner, February 6, 2019)
ProMarket: One Year After the Net Neutrality Repeal: the FCC Has
Abdicated Its Role Protecting Consumers and Competition (December 14,
2018)
Medium: One Year Later, Net Neutrality is Needed More than Ever
(December 14, 2018)
Benton Digital Beat: Cities (and States) are Doing it for Themselves
(Remarks before New England Connect) (November 8, 2018)
Benton Digital Beat: Bending the Arc Towards Media and Social Justice
(Remarks upon receiving the Everett C. Parker Award) (October 11, 2018)
NBC News Think: Brett Kavanaugh's net neutrality views could have a
broad impact if he joins the Supreme Court (September 4, 2018)
NBC News Think: Losing Net Neutrality Made it Harder for Santa Clara to
Fight its Wild Fires (August 24, 2018)
ProMarket: Would Sen. Warner's Ambitious Plan to Regulate Social Media
Giants ``Ruin'' the Internet--Or Save it? (August 13, 2018)
Benton Digital Beat: The U.S. Needs a New Policy Framework for an Open
Internet Ecosystem (July 28, 2018)
Benton Digital Beat: Competition Policy for an Open Internet Ecosystem
(July 25, 2018)
Benton Digital Beat: Regulatory Oversight and Privacy Policy for an
Open Internet Ecosystem (July 24, 2018)
Medium: Progress in a Hostile Political Environment: Raising Awareness
and Recruiting Foot Soldiers in the Battle for an Open Internet (June
15, 2018)
Medium: The Time to get the Net Neutrality Rules Back is Now (May 15,
2018)
Buzzfeed News: Two Companies Won, American Democracy Lost (June 14,
2018)
Wired: Promises Mean Little for Consumers in T-Mobile-Sprint Deal (May
18, 2018)
Wired: Ajit Pai's Plan Will Take Away Broadband from Poor People (with
Amina Fazlullah) (February 21, 2018)
New York Daily News: Online innovation at risk following FCC's repeal
of net neutrality rules (December 14, 2017)
Mashable: The FCC's proposal to kill net neutrality is worse than you
think (November 22, 2017)
The Verge: The FCC is having a terrible month, and consumers will pay
the price (November 15, 2017)
Medium: Fighting for Fast, Fair and Open Networks (October 11, 2017)
The Verge: It's time for Congress to fire the FCC chairman (September
27, 2017)
American Constitution Society ACS Blog: The Assault on the Open
Internet (June 24, 2017--no longer available online)
Mashable: How to write an impactful net neutrality comment (which you
should definitely do) (June 17, 2017)
The Verge: Breaking down the FCC's proposal to destroy net neutrality
(May 24, 2017)
Mashable: What to expect when you're expecting the net neutrality
debate to begin (May 15, 2017)
Axios: Repealing net neutrality hurts innovators, consumers (April 27,
2017)
Mashable: Consumers and innovators will lose if we kill net neutrality
(April 17, 2017)
The Verge: The FCC's plan to kill net neutrality will also kill
Internet privacy (April 11, 2017)
The Verge: You have just hours to stop Congress from giving away your
web browsing history (March 28, 2017)
The Hill: FCC, FTC are playing a shell game with online privacy (March
18, 2017)
Axios: Real net neutrality is rooted in Title II (March 2, 2017)
Benton Digital Beat Blog: First Lifeline, Now Broadband Program for
Schools and Libraries in the FCC's Crosshairs (Feb. 22, 2017)
Benton Digital Beat Blog: Defending the Indefensible: Chairman Pai's
Lifeline Reversal Will Widen the Digital Divide (February 9, 2017)
Wall Street Journal: Should Congress Overturn the Net Neutrality Rules?
(March 17, 2013)
New York Times Room for Debate: Who Gets Priority on the Web? Consumer
Choices on the Internet (February 21, 2013)
Billboard: Universal EMI Deal Would Harm Music Fans and Musicians (with
Jodie Griffin) (July 16, 2012)
My Huffington Post blog posts from 2011-2013 can be found here.
My Public Knowledge Blog Posts from 2006-2013 can be found here.
CNET: Don't Blow it Congress (March 14, 2006)
Washington Post: Fairness, Not Silence (January 31, 1994)
Electronic Media: Fairness Doctrine Debate with Rush Limbaugh (est.
early 1990s)
I had articles published in Variety and the Legal Times in the
1990s, but I can't remember the topics and can't find them online.
Journal Articles & Book Chapters
I have had book chapters published in Regulators Revenge, The
Future of Telecommunications Deregulation, (Cato Institute 1998); The
Future of Media, (Seven Stories Press 2005) and Media, Technology and
Society: Theories of Media Evolution (University of Michigan Press,
2009).
I have had six law review articles and notes published:
Social Justice or Inequality: The Heart of the Net
Neutrality Debate, 80 University of Pittsburgh Law Review 779
(2019)
A Policy Framework for an Open Internet Ecosystem, 2 Geo.
Law Tech. Rev. 335 (2018)
Reflecting on 20 years Under the Telecommunications Act of
1996, 68 Federal Communications Law Journal 58 (2017)
The Gore Commission Ten Years Later: Reimagining the Public
Interest Standard in an Era of Spectrum Abundance, 17 CommLaw
Conspectus 657 (2009)
Don't Mess With Success: Government Technology Mandates and
the Marketplace for Online Content, 5 Journal on
Telecommunications and High Technology Law, 73 (2006)
Broadcast Licensees and Localism: At Home in the
Communications Revolution, 47 Federal Communications Law
Journal, 384 (1994)(with Andrew Jay Schwartzman)
Speeches
[I'm fairly positive that I gave speeches prior to 2008, but I
don't have copies, can't recall them, and can't find them online]
Mapping, Impact and Adoption: A Research Agenda for Effective Rural
Broadband Policy (Remarks to the Association of Public Land Grant
Universities, January 28, 2021)
The Not So Good, Very Bad and Really Weird Merger of T-Mobile and
Sprint (Speech NTCA: The Rural Broadband Association Fall Legal
Seminar, November 20, 2019)
Moving Backwards: Consolidation, Deregulation & Lack of Accountability
in the U.S. Media & Broadband Industries (Remarks to Centro De
Investigacion y Docencia Economicas, A.C. Competencia en
Telecommunications y Radiofusion: Disrupcion Technoglica y Neutralidad
de Redes, September 23, 2019)
Social Justice or Inequality: The Heart of the Net Neutrality Debate
(Remarks to the University of Pittsburgh Law Review Symposium: The Net
Without Neutrality, Economic, Regulatory and Informational Impacts,
March 1, 2019)
Flexibility, Humility, Connectivity: Three Ingredients for a Successful
Career (Remarks to the Penn Law Women's Association Dinner, February
19, 2019)
Remarks before Connected New England 11 (November 8, 2018)
Bending the Arc Towards Media & Social Justice (Remarks to the Office
of Communication of the United Church of Christ Everett C. Parker
Lecture, October 11, 2018)
The FCC: Can't Live With it, Don't Want to Live Without it (Remarks to
the Great Lakes Connect Conference, September 26, 2018)
Remarks on the Future of Local Internet Choice (October 18, 2016)
Connecting Anchor Institutions: A Broadband Action Plan (Remarks to
2016 SHLB Annual Conference, July 13, 2016)
Remarks at Net Inclusion, the National Digital Inclusion Summit (May
16, 2016)
Remarks to New America Foundation (March 23, 2016)
Remarks to Emerging Issues Policy Forum, Digital Pathway Summit
(January 14, 2016)
Remarks to ECTA Regulatory Conference (November 17, 2015)
Remarks to Partnership for Progress on the Digital Divide Conference
(October 22, 2015)
Consumer Protection in the Broadband Era: The Role of the FCC (Remarks
to the 4th annual Professor Anthony J. Santoro Business Law Lecture
Series, September 25, 2015)
What the Future Holds for Local Governments (Remarks to NATOA Annual
Conference, September 9, 2015)
Remarks to the Fiber to the Home: Fiber on Fire Conference (June 30,
2015)
Remarks to Westminster, MD Fiber Launch Party (June 26, 2015)
Remarks to Third Annual New York State Broadband Summit (June 11, 2015)
Halftime at the Wheeler FCC (Remarks to Media Institute Communications
Forum, June 4, 2015)
Remarks to Moving Towards a Gigabit State (May 4, 2015)
The Art of the Possible (Remarks to the One Community Annual Meeting,
September 10, 2014)
FCC: Out to Lunch (Remarks to the Personal Democracy Forum, June 13,
2013)
The Broadband Ecosystem: Living with the Cloud (Remarks to the 17th
Annual Oregon Connections Telecommunications Conference, October 18,
2012)
Remarks to Communication Power: Net Neutrality and the Public Commons
(April 28, 2010)
Keynote Speech at Free Culture X (February 13, 2010)
Remarks to Copyright Monopoly: Playing the Innovation Game (May 28-30,
2008)
IT Perspectives Inside the Beltway (Remarks to EDUCAUSE/Cornell
Institute for Computer Policy & Law, July 2007)
______
ATTACHMENT C
Gigi Sohn Testimony Before U.S. Congress, State Legislatures &
Administrative Bodies
Maryland House of Delegates, Economic Matters Committee: In Support of
House Bill 957, Maryland Net Neutrality Act of 2020 (Feb. 26, 2020)
House Energy and Commerce Committee, Communications and Technology
Subcommittee: ``Empowering and Connecting Communities through Digital
Equity and Internet Adoption'' (January 29, 2020)
Maine State Legislature, Joint Energy, Utilities and Technology
Committee, hearing on L.D. 946, An Act to Protect Privacy of Online
Customer Personal Information (April 24, 2019)
Federal Trade Commission Hearing on Competition and Consumer Protection
in the 21st Century (March 20, 2019) (no prepared remarks)
House Judiciary Committee, Antitrust Subcommittee: The State of
Competition in the Wireless Market: Examining the Impact of the
Proposed Merger of T-Mobile and Sprint on Consumers, Workers, and the
Internet: (March 12, 2019)
Connecticut General Assembly, Energy & Technology Committee: Hearing on
Senate Bill No. 2, An Act Concerning Internet Service Providers and Net
Neutrality Principles (March 8, 2018)
US Senate Committee on Indian Affairs: Oversight Hearing on the GAO
Report on ``Telecommunications: Additional Coordination and Performance
Measurement Needed for High-Speed Internet Access Programs on Tribal
Lands'' (April 27, 2016)
U.S. Senate Committee on Commerce, Science and Transportation,
Subcommittee on Communications, Technology and the Internet. State of
Wireline Competition (July 25, 2013)
House Energy and Commerce Committee, Subcommittee on Communications &
Technology: The Future of Video (June 27, 2012)
U.S. Senate Committee on the Judiciary, Subcommittee on Antitrust,
Competition Policy and Consumer Rights: The Universal Music Group/EMI
Merger and the Future of Online Music (June 21, 2012)
U.S. Senate Committee on the Judiciary, Subcommittee on Antitrust,
Competition Policy and Consumer Rights: The AT&T/T-Mobile Merger: Is
Humpty Dumpty Being Put Back Together Again? (May 11, 2011)
House Judiciary Committee, Subcommittee on Intellectual Property,
Competition and the Internet: Ensuring Competition on the Internet: Net
Neutrality an Antitrust (February 15, 2011)
U.S. Senate Committee on Commerce, Science and Transportation:
Broadband Providers and Consumer Privacy (September 25, 2008)
FTC Hearing on Broadband Connectivity and Competition (2007) (no
prepared remarks or transcripts available)
U.S. Senate Committee on the Judiciary, Subcommittee on Antitrust,
Competition Policy and Consumer Rights: The XM-Sirius Merger: Monopoly
or Competition from New Technologies? (March 20, 2007)
House Energy and Commerce Committee, Subcommittee on Telecommunications
and the Internet: The Audio and Video Flags: Can Content Protection and
Technological Innovation Coexist? (June 27, 2006)
U.S. Senate Committee on the Judiciary: The Analog Hole: Can Congress
Protect Copyright and Promote Innovation? (June 21, 2006)
House Judiciary Committee, Subcommittee on the Courts, Intellectual
Property, and the Internet: Content Protection in the Digital Age: The
Broadcast Flag, High Definition Radio, and the Analog Hole (November 3,
2005)
House Judiciary Committee, Subcommittee on the Courts, Intellectual
Property, and the Internet: Piracy of Intellectual Property on P2P
Networks (September 26, 2002) (attached)
I am fairly confident that I testified before U.S. Congressional
committees between September 26, 2002 and November 2005, but I can't
find any testimony. I would guess that I testified at least twice
during that time period, either before one of the Judiciary or Commerce
Committees. I also testified at least once when I worked at Media
Access Project in the 1990s, but I can't recall the subject matter and
it doesn't exist online.
______
Statement of Gigi B. Sohn, President, Public Knowledge
``Piracy of Intellectual Property on Peer-to-Peer Networks'' House
Judiciary Committee
Subcommittee on Courts, the Internet and Intellectual Property
Washington, DC
September 26, 2002
Chairman Coble, Congressman Berman and other members of the
Subcommittee, my name is Gigi B. Sohn. I am the President of Public
Knowledge, a new nonprofit public interest organization that seeks to
ensure that citizens have access to a robust public domain, an open
Internet and flexible digital technology.
I want to thank the Subcommittee for holding this important hearing
on the great promise of peer-to-peer (P2P) networks and some of the
perils associated with their use. I am honored that you have chosen my
organization to represent the citizen/consumer perspective at this
hearing.\1\
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\1\ Public Knowledge is working in partnership with the Center for
Democracy and Technology and Consumers Union on P2P and related digital
copyright issues.
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My hope is that this hearing will further advance the dialogue that
Public Knowledge and other public interest organizations have already
begun with the various interested industries and with policymakers.
That dialogue is intended to find solutions that provide the content
industry with a ``reasonably secure'' digital environment for its
content while ensuring that citizens retain their rights under
copyright law and continue to have access to an open Internet and the
kind of flexible technology that they have come to expect and enjoy.
P2P Technology is Changing the Face of Computing--For the Better
In just two years, P2P has become a computing phenomenon. Millions
of Internet users are communicating with each other through P2P file
sharing software programs that allow a group of computer users to share
text, audio and video files stored on each other's computers. While the
P2P applications we know today are just a few years old, the technology
underlying P2P is at the heart of the Internet. The Internet was
designed to be a distributed system of linked computers in which users
could freely share content and data stored on each other's computers.
Few disagree that P2P networks are already changing the way
businesses, educators, artists and ordinary citizens use their
computers. In businesses, for example, they offer an alternative to
centralized server-based sharing of documents and projects.\2\ The vast
majority of these changes are positive. By linking together individual
computers and distributing their power, P2P technology is superior to
the centralized server approach because it:
---------------------------------------------------------------------------
\2\ A recent Gartner Research Note (Technology T-16-2550, September
16, 2002) predicts that ``[b]y 2005, 10 percent of business
interactions will occur via P2P-enabled technologies (0.7
probability).''
---------------------------------------------------------------------------
is more robust and resilient
is more cost effective
is faster and more reliable
harnesses bandwidth and storage resources that would
otherwise go unused
enables real-time collaborative work
Already, both public and private P2P networks are helping small and
large businesses (including content companies), universities, artists
and others work collaboratively and more efficiently. Here are some
examples:
The University of North Carolina at Chapel Hill. Robert
Kirkpatrick, Distinguished Associate Professor of English and
Director of the London Summer Honors Program at the University
of North Carolina at Chapel Hill, used Groove Network's P2P
tools to manage a class in the composition of poetry. Among
other things, Kirkpatrick used P2P technology to encourage
collaborative editing and comment on students' work, adjust the
syllabus, archive course materials, and create a list of links
to resources of poetic forms and vast archives of complete
works of poems and critical writing. The class also uses the
Groove tools for a class forum and an announcement board to
share information on musical, dramatic and other events on
campus. Kirkpatrick said that P2P technology ``makes it
possible to extend that most expensive form of education--one-
on-one tutorial--into a cohesive class experience. . . . It
comes very close to being, for me, the ideal academic tool.''
\3\
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\3\ www.groovenet/solutions/testimonials/education/unc.html
CenterSpan. CenterSpan is a distributed content delivery
network licensed to distribute copyrighted digital content from
major media companies. Earlier this year, CenterSpan announced
an agreement with Sony Music Entertainment whereby CenterSpan's
secure P2P network provides music from Sony Music artists to a
wide variety of online service providers seeking to offer their
subscribers streaming and downloadable music.\4\
---------------------------------------------------------------------------
\4\ Statement of Frank G. Hausmann, Chairman and CEO Centerspan
Communications Corporation before the House Judiciary Committee
Subcommittee on Courts, the Internet and Intellectual Property, June 5,
2002.
J!VE Media. J!VE Media is the creator of a suite of digital
video packaging, digital rights management and media delivery
services which enable content providers to distribute protected
digital video content via publicly accessible P2P networks,
including the Gnutella Network (which includes users of
LimeWire and Morpheus) and the Fastrack Network (which includes
users of KaZaA and Grokster). J!VE uses P2P distribution
technology because it allows content owners to rely almost
entirely on users to provide the most costly computing
resources involved in digital distribution: data storage and
bandwidth. J!VE distributes only authorized content, and its
customers include: (1) the Priority Records division of the EMI
Recorded Music Group; 92) Koch International, the world's third
largest independent music label; and 3) The Comedy Network,
Canada's 24 hour comedy cable channel.\5\
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\5\ Declaration of Sean Mayers in Support of MusicCity.Com Inc.'s
and MusicCity Networks, Inc.'s Motion for Partial Summary Judgment in
MGM Studios v. Grokster, www.eff.org/IP/P2P/MGM_v_Grokster/
20020122_mayers_decl.html
Project Gutenberg. Project Gutenberg seeks to convert to
ebook form, and widely distribute over the Internet, over 4500
works from the King James Bible to Shakespeare to the CIA World
Fact Book. These works are either in the public domain or
authorized by copyright owners for distribution. One of the
chief hurdles facing Project Gutenberg and public domain
projects like it has been the expense of hosting and
distributing the resulting files. Today, these expenses are
being reduced, and valuable public domain works are reaching
more people, because these texts are being distributed over P2P
networks.\6\
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\6\ Declaration of Gregory Newby in Support of MusicCity.Com Inc.'s
and MusicCity Networks, Inc.'s Motion for Partial Summary Judgment in
MGM Studios v. Grokster, www.eff.org/IP/P2P/MGM_v_Grokster/
20020122_newby_decl.pdf.
Furthur Network. The Furthur Network is a non-commercial,
open source, P2P network of legal live music. Music lovers
download and share music from each other. Musicians that allow
the non-commercial taping and trading of their live
performances are allowed on this publicly accessible P2P
network. This would include bands like the Grateful Dead, the
Allman Brothers Band and the Dave Matthews Band. TDK, the
consumer electronics and recordable media company has recently
recognized the importance of this segment of the music industry
by sponsoring the third annual Jammy Awards, which honors
musicians who focus their art on live music. In the words of
Bruce Youmans, TDK's Vice President of Marketing, ``There are
literally hundreds of sources, including directly from some of
the artists performing at the Jammys, for legally acquiring
today's best music without infringing on artists' copyrights.''
\7\
---------------------------------------------------------------------------
\7\ www.furthurnet.com
All indications are that P2P technology will stimulate our economy
if it is allowed to flourish. As with any successful new technology,
innovators will seek to capitalize by developing new applications for
P2P.\8\ Moreover, since every computer on a P2P network becomes, in
effect, a file server for every other computer, it is likely that
businesses and individuals will demand faster and more powerful PC's.
Equally as important, many experts predict that increased use of P2P
networks will drive up the demand for broadband.\9\ It is not difficult
to see why--using the increased bandwidth capabilities of a P2P
network, a homeowner using only a DSL line could send files at a speed
and capacity that is eight times faster than a T-1 line!
---------------------------------------------------------------------------
\8\ One exciting P2P application that is in its nascent stages is
``P2P signing'' for the deaf and hard of hearing. Through this
application, an interpreter in one location can use high-speed
communications and low-cost video cameras to provide interpreting
services to consumers at other locations across the country. Frank G.
Bowe, Broadband and Americans with Disabilities at 2 (2002), www
newmillenniumresearch.org/broadband.html.
\9\ Amy Kover, Napster: The Hot Idea of the Year, Fortune Magazine,
June 26, 2000. See also, Understanding Broadband Demand, A Review of
Critical Issues, Office of Technology Policy, U.S. Department of
Commerce at 16 (September 23, 2002), www.ta.doc.gov/reports/TechPolicy/
Broadband_020921.pdf
---------------------------------------------------------------------------
Like Other Technologies, P2P Can Be Abused
Despite the recognition of Congressman Berman and other legislators
of the enormous promise of P2P networks,\10\ the focus of this hearing
is on their abuses--that is, the illegal sharing of copyrighted
material over these networks. Let me be clear--Public Knowledge does
not condone the illegal sharing of files on any network--be it P2P or
otherwise. We believe in the constitutional and historical purpose of
copyright protection, that is, to encourage the creation of new
artistic works for the ultimate benefit of the public. That purpose is
not well served by individuals who engage in large scale illegal file
trading. As discussed below, we think that the content industry has
several avenues available to it to curb these abuses that will also
preserve the technology and the rights and expectations of consumers
and computer users.
---------------------------------------------------------------------------
\10\ Speech by the Honorable Howard L. Berman to the Computer and
Communications Industry Association Regarding Solutions to Peer to Peer
Piracy (June 25, 2002), www house.gov/berman/p2p062502.html (``P2P
networks represent as much of an opportunity as a threat to copyright
creators. P2P represents an efficient method of information transfer,
has the potential to greatly reduce the costs associated with server-
based distribution systems, and can support a variety of legitimate
business models.'')
---------------------------------------------------------------------------
That being said, my fear is that the emphasis on the abuses of P2P
networks may well give rise to actions that could ultimately destroy
the promise of this technology. As discussed below, proposed laws like
H.R. 5211 could lead to actions by copyright owners that could
literally bring these and other networks to a sudden and unfortunate
halt. Even where the copyright owner's motives are the most benign,
actions authorized by this bill could seriously tax these valuable
networks by making them less efficient, more unstable, and subject to
greater private control. That is not good for consumers, the tech
industry or the content industry, which believes, as I do, that it will
figure out how to harness P2P technology and profit. Thus, it is not
just the illegal activity that might be slowed by the kinds of self
help techniques authorized by this bill, but also every legitimate
current and yet-to-be-developed business dependent upon the promise of
P2P technology.
P2P networks, like other technologies (e.g., cars, telephones) can
be used for good, or they can be abused. But we don't outlaw these
technologies or limit their legitimate use because of the possibility
(and yes, even the probability) that someone will use them to do harm.
Public Knowledge supports targeted mechanisms to limit abuses of these
networks. But we cannot support laws or technological measures that
harm legitimate uses of the technology in the effort to curtail
illegitimate ones.
The Content Industry Has Tools at Its Disposal Which, If Used Together,
Can Limit the Impact of Illegal File Trading Over P2P Networks.
Over the past several months, my staff and I have had a number of
productive conversations with various sectors of the content industry.
While we have not agreed on everything, I have appreciated their
willingness to be candid and engage in a continuing dialogue. One thing
the various sectors of the industry have been willing to admit is that
infringement cannot be stopped completely. This is true with regards to
physical infringement as well as virtual infringement.
Thus, the critical question becomes: how can the effect of illegal
file trading over the Internet be limited without eroding the
legitimate consumer/computer user rights and expectations? I propose a
combination of three tools:
Enforcement of Existing Laws
Both the Copyright Act and the Digital Millennium Copyright Act
provide for remedies for certain unlawful uses of copyrighted
material.\11\ There is little evidence and indeed, the content
industries do not claim, that when the law is enforced it is
ineffective. In fact, when the content industries choose to enforce
their rights under these laws, like in the Napster, Audiogalaxy and
Madster (aka ``Aimster'') cases, they have succeeded.
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\11\ 17 U.S.C. Sec. Sec. 501-507; 17 U.S.C. Sec. Sec. 1201-1204; 18
U.S.C. Sec. Sec. 2318-2319A.
---------------------------------------------------------------------------
Despite its claims that billions of songs have been illegally
downloaded, we are not aware of a single case in which the recording
industry has taken legal action against an individual downloader. The
problem is that the recording industry apparently does not want to
enforce the rights it claims when it comes to illegal P2P file trading
because it looks bad to sue its own customers. Therefore, the industry
has decided instead to shift that burden onto other corporations, and
in particular, ISPs. As many of you know, the RIAA is seeking to force
Verizon to hand over the names of its customers based solely on the
RIAA's allegations that those customers are engaging in infringing
activity. Verizon, backed by civil liberties and other public interest
organizations such as my own, has argued, among other things, that
forcing ISPs simply to give copyright owners the names of their
customers without a judicial determination that they may be engaged in
any illegal conduct would violate the constitutionally mandated privacy
and anonymity rights of their customers, and put ISPs in the untenable
position of having to respond to the numerous identification requests
that would inevitably result.
Were Verizon and other ISPs to comply with such requests, the RIAA
would be empowered to collect sufficient information with which to
conduct investigations of potential defendants and engage in
surveillance over a period of days or even years, choosing to sue the
defendants presenting the worst facts and having profiles least likely
to garner public or judicial sympathy. As is often said, bad facts make
bad law. The RIAA plan appears to have no other purpose than to find
the worst facts before seeking an interpretation of its legal rights.
Verizon's refusal to succumb to the RIAA's request does not leave
the industry without a remedy. It can bring a ``John Doe'' lawsuit
against anonymous infringers and serve Verizon with a third-party
subpoena pursuant to Fed. R. Civ. P. 45. Once the industry has
satisfied a judge that its allegations of infringement have evidentiary
support, Verizon (and other ISPs) will be required to make available
those names. With ``robot'' technology that allows the industry to
pinpoint the most egregious uploaders with some (but by all means not
perfect, see discussion below) accuracy, the industry's complaint that
it would have to bring numerous expensive lawsuits rings hollow. Unless
the industry wants to sue every person with a handful of infringing
files on its hard drive, it has the economic and technological means to
locate the kind of large scale alleged infringer that it would want to
bring to court.
An industry-initiated law suit against a large scale infringer
could also have the benefit of serving as a deterrent to other bad
actors. As we have seen in other contexts, specifically targeted
lawsuits and other legal action can have a deterrent effect, and also
educate the public as to what is legal. But if the industry refuses to
bring targeted cases, we will only be left with unfounded complaints
that the copyright law provides a ``right without a remedy.'' The
remedies exist, but copyright owners must take up the challenge of
invoking them.
Non-Invasive Self-Help
Public Knowledge does not oppose the use of reasonable non-invasive
self-help techniques by the content industry. By non-invasive, we mean
techniques that do not entail a third party attacking a file located on
a computer hard drive (or denial-of-service attacks on individual users
or on providers). Examples of non-invasive self-help include spoofing,
flooding, decoy, spoiler files and redirection. Many of these
techniques involve the intentional distribution of phony or corrupted
files that an individual seeking to make an unlawful reproduction will
then download. Others will send downloaders to legitimate sites. What
distinguishes these techniques is that they are activated by an
individual's affirmative effort to obtain an unlicensed copy of a file.
On the other hand, Public Knowledge cannot support self-help
techniques that permit the copyright owner to block access to an
individual's computer hard drive for the purpose of making an allegedly
illegal file unusable or incapable of being downloaded.
In the most popular of these techniques, commonly known as
Interdiction, a computer program repeatedly requests the same file from
a particular P2P network user. As a result, no one else can get to that
file, or to any other file on that user's computer even if the other
files to which access is sought are perfectly legal and downloading
them is perfectly lawful.
There are several problems with self-help techniques of this kind.
The first, of course, is that the program, or robot, could be mistaken
in its determination that a file is one that warrants protection. While
we have received assurances from the RIAA that the ``bots'' that its
member companies use are extraordinarily accurate, evidence submitted
in its pending litigation with Verizon demonstrates otherwise. For
example, UUNet, an ISP, was sent a notice by Warner Brothers, owner of
the copyright to the motion picture ``Harry Potter and the Sorcerer's
Stone.'' The notice asked UUNet to disable access to a user,
identifying as the single infringing file a 1K file named ``harry
potter book report.rtf.'' The size and type of the file make it clear
that the file was nothing more than a child's school book report on a
Harry Potter book. The record includes other examples of similar
inaccuracies.\12\
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\12\ Motion for Leave to File and Brief Amicus Curiae of United
States Internet Service Provider Association in Support of Respondent
filed in Recording Industry Association of America v. Verizon Internet
Services, Case No. 1:02MS003323 at 6-12.
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Moreover, it is important to remember that the members of the RIAA
will not be the only copyright owners capable of using these
techniques, particularly if H.R. 5211 becomes law. The fact that
Interdiction not only makes unavailable the allegedly infringing file,
but also makes the rest of the user's files unavailable only
exacerbates this problem.
A second concern is that Interdiction and similar self-help
techniques punish individuals for ``making available'' copyrighted
content, regardless of whether that content was legally obtained or
not. Such punishment would extend copyright protection beyond what the
law currently allows. Unlike in the European Union, U.S. copyright law
does not give a copyright owner a separate right to ``make available''
his work. Efforts to include such a right here have been heretofore
rejected.
Finally, we are concerned with the worst case scenario--that
repeated requests or similar actions could prevent a user from
accessing the Internet for any other purpose, resulting in a so-called
``denial of service.'' Regardless of whether an individual has an
infringing file, denial of service caused by self-help will burden ISPs
and other network users, both indirectly and directly. This is
particularly true where such attacks can be done secretly, such that a
user's first call will be to its own ISP to complain about a
malfunction. Even on a network where a loss of service for one may not
directly affect other users, every denial of service claim requires ISP
time and resources to figure out its cause, causing it to spend less
time on other, more serious service problems, which might be caused by
cyberterrorism, other security breaches or legitimate technological
breakdowns. This has an indirect effect on all the other customers on
an ISPs network and also burdens the entire network. Moreover, with
some ISP networks (particularly the shared architecture of cable modem
service), the service quality of innocent ISP customers could be
directly affected if invasive self-help leads to a denial of service
for another customer--in other words, innocent ISP customers are harmed
by the acts of one suspected infringer.
Legitimizing and harboring invasive self-help has startling
implications. Again, whether the large content companies use techniques
that are more accurate and often unrecognized by the computer user is
nice, but is largely beside the point. If expressly permitted or
protected, self-help of various shapes and sizes will be available to
all copyright owners, some of whom may believe that it is perfectly
within their rights to launch denial of service attacks. Some of these
attacks may affect actual infringers, while some almost certainly will
affect innocent parties, who will have no idea why they (or others)
cannot access their files or why their Internet service is not working.
These attacks will likely provoke retaliatory attacks by some users,
and the acquisition of defensive software by others. Soon, the Internet
will look like the Wild West, with self help bots and bot blockers
replacing guns as the weapon of choice.
The collective impact of all these self help efforts, particularly
if they are sanctioned by law, might be to reduce or eliminate the
effectiveness of the Internet as a communications medium in a number of
ways, from consuming bandwidth to forcing ISPs into imposing crippling
terms-of-service agreements. The final victim of this Internet free-
for-all, of course, would be rollout of broadband, for which P2P is the
``killer app.''
Promoting Competition to Build a New Business Model
Last June, at the request of USA Today, I spent several hours
discussing digital media issues with a number of top executives from
the content and consumer electronics industries. What struck me was
that the New York representatives of the content industries all agreed
on one thing: that they had to create new business models that take
advantage of the low cost, ubiquity and speed of the Internet. In
answering the question of whether the recording industry had responded
to the Internet needs of its customers, John Rose, Executive Vice
President of the EMI Group stated:
There's no question that this industry, like every other
industry that went through this, didn't deal with it in as
forward-thinking a manner as it could have. The real question
is: here's where we are, what do we do about it? There's no way
you're going to constrain the Internet, . . . The question is,
can you come up with economic models to empower guys like Alan
[McGlade of MusicNet, an industry-backed online music
service]?\13\
---------------------------------------------------------------------------
\13\ ``Digital Technology, Reshaping industries, lifestyles,'' USA
Today, June 25, 2002 at 4E.
These content industry executives believe, as I do, that if they
can provide easy access to a wide range of high quality content at a
fair price, most consumers looking for content over the Internet will
choose their services.\14\ In other words, they believe that they can,
in fact, ``compete with free.'' \15\ Rob Reid of Listen.com, an online
subscription music service that licenses music from the recording
industry, said as much in a recent Department of Commerce Forum:
---------------------------------------------------------------------------
\14\ The Office of Technology Policy at the U.S. Department of
Commerce apparently agrees, Understanding Broadband Demand, A Review of
Critical Issues, Office of Technology Policy, U.S. Department of
Commerce at 17 (September 23, 2002), www.ta.doc.gov/reports/TechPolicy/
Broadband_020921.pdf (``There is considerable belief that creative,
legal, for-profit sites can out-compete ``free'' alternatives. Industry
will need to develop technologies that can protect digital content,
ensure that legal services have the resources . . . to out-compete
illegal exchanges, educate consumers about the need to respect
intellectual property on the Internet, cooperate across sectors and
deliver content in ways and on platforms that consumers want. . . .'')
\15\ Bon Jovi and its record company, Vivendi Universal SA's
Universal Music Group, is competing with free by giving fans who buy
their CDs ``Bon Jovi Exclusives,'' including preference in buying
concert tickets, the possibility of climbing on stage and other band-
related perks. Jennifer Ordonez and Charles Goldsmith ``Bon Jovi Uses
`Bounce' To Battle Music Pirates,'' Wall Street Journal, September 16,
2002, online.wsj.com/article_print0,,SB103211681937801835,00
.html.
The way I compete [with free] is I have to create a service
that's better than free, which is hard to do. I mean, that's
hard to do. I mean, that's a tough proposition, but the good
news is people do opt for things that are better than free all
the time. If they didn't, you know, we'd be eating at soup
kitchens every night, and not going to restaurants. And just
looking around this table, I see a bottle of Poland Springs . .
. that tells us that designer water is a multi-billion dollar
industry, and that comes out of the faucet for free. So better
than free does exist.. . .\16\
---------------------------------------------------------------------------
\16\ Statement of Rob Reid, Founder and Chairman of Listen.com,
Understanding Broadband Demand: Digital Rights Management Workshop,
July 17, 2002, U.S. Department of Commerce, Technology Administration
www.ta.doc.gov/reports/TechPolicy/DRM-020717.htm
---------------------------------------------------------------------------
Despite the fact that industry efforts to bring content online have
been going on for years, a successful business model has not emerged.
One of the reasons this is so is that creating such a model is not a
simple task--it takes time, resources and sometimes plain dumb
luck.\17\ But I believe that there are two other reasons a business
solution has been slow in coming: (1) the same industry minds have been
attacking the same problem for all that time, and (2) the industry has
refused to permit others to try and figure out how best to deliver
content over the Internet.
---------------------------------------------------------------------------
\17\ A recent New York Times article details the challenges faced
by online music services (including those backed by the recording
industry) in getting permission to sell certain songs over the
Internet. Amy Harmon, ``Copyright Hurdles Confront Selling of Music on
the Internet,'' NY Times, September 23, 2002 at C1.
---------------------------------------------------------------------------
If the content industries are sincere in their desire to create new
business models (and I believe that they are), then they should give
others the opportunity to help them to do so. Not for free--for
example, the recording companies could license their music to various
online retailers and ask the licensee for the same statutory rate that
the publisher gets ($0.08) for each song the licensee sold online.
Retailers who choose to offer them to the public must all pay the same
``wholesale'' price but can then compete vigorously with each other to
find the business proposition most appealing to consumers. This is a
win-win situation. The copyright owner gets paid, and a competition
ensues to build an online music service that provides a high quality,
large catalogue at a reasonable price. In fact, several successful
business models could emerge that are entirely different than anything
being contemplated today and appeal to different types of consumers,
just as retail stores do for pre-packaged goods. There will be
failures, no doubt--but until innovators and entrepreneurs are given a
chance to fail, the chances that success will be achieved are greatly
diminished, and the public benefit from broad and competitive
dissemination will surely be lost.\18\
---------------------------------------------------------------------------
\18\ This week's announcement by the Warner Music Group that it
would begin selling digital singles starting at 99cents through
retailers like Bestbuy.com and MTV.com is a good start. Amy Harmon,
``Warner to Sell Digital Signals Online,'' NY Times, September 24, 2002
at C9.
---------------------------------------------------------------------------
H.R. 5211 is a Well-Intentioned but Flawed Bill
Public Knowledge appreciates the good intentions of Reps. Berman,
Coble, Smith and Wexler in sponsoring H.R. 5211. We believe that they
are sincere in their desire to encourage P2P technology and to stem the
flow of illegal file sharing.
Unfortunately, these good intentions cannot save this flawed bill.
Part of the problem is that because P2P technology underlies the entire
Internet, it is difficult to draft legislation that addresses specific
P2P networks such as Morpheus and KaZaA without also including the
entire Internet and World Wide Web in its scope. Also, as discussed
above, it is difficult to imagine certain ``self-help'' techniques that
could interfere with specific P2P networks that would not also put the
efficient functioning of the larger Internet at risk, impose enormous
new tech support burdens on ISPs and impair customer satisfaction with
broadband. Finally, as discussed above, while we may accept that some
of the techniques now in use by the content industries are somewhat
benign, this bill allows for self-help by all copyright owners--some of
whom may not have the same concerns about upsetting their customers as
do large content companies.
Among the provisions in this bill that are the most troublesome
from a consumer perspective are:
The bill gives copyright owners extraordinary powers to
engage in self-help. H.R. 5211 grants copyright owners and
their agents the right to break any law, state or federal,
civil or criminal, in furtherance of ``disabling, interfering
with, blocking, diverting or otherwise impairing'' the
availability of his or her copyrighted works on a public P2P
network. This extraordinary power is limited by five vague
conditions: (1) the copyright owner may not ``alter, delete, or
otherwise impair the integrity of any computer file or data
residing on the computer of a file trader'' (Subsection (a));
(2) the owner must not impair the availability of files on a
targeted computer other than the works the copyright owner
owners except as ``reasonably necessary'' (Subsection
(b)(1)(a)); (3) the copyright owner may not cause ``economic
loss'' to any person other than the targeted file trader
(Subsection (b)(1)(B)); (4) the copyright owner may not cause
``economic loss of more than $50'' to the targeted file trader
(Subsection (b)(1)(C)); and (5) the copyright owner must notify
the Attorney General seven days before engaging in self-help
(Subsection (c)).
These conditions leave the door wide open for abuse by the
copyright owner and harm to computer users. For example, the
limitations on altering and deleting files in subsection (a)
conceivably would not prevent a copyright owner from cutting a
user's DSL line or even his phone line, or knocking his
satellite dish off his roof. The ``as reasonably necessary''
language of subsection (b)(1)(a) is undefined and invites a
raft of excuses for why an individual's non-infringing files
were impaired by self-help. The subsections prohibiting
``economic loss'' do not cover any non-economic loss that a
target file trader or innocent victim may incur. And Subsection
(c)'s notice provision is toothless: there is nothing in the
bill that gives the Attorney General guidelines by which to
judge self-help techniques or the power to reject them. All
that is required by that subsection is notice.
The bill shifts the burden of using self-help mechanisms
onto the consumer. Currently, the content industries are very
careful about the type of self-help techniques they use. This
is not only for public relations reasons--the misguided use of
these techniques that harms an innocent party could also result
in serious legal liability for a copyright owner. By providing
a safe harbor for a whole range of non-invasive and invasive
self-help techniques, H.R. 5211 removes the incentives and
sanctions that currently impel content owners and others to be
careful in their self-help. While the damage limitation for
bringing a legal action for misguided self-help is only $250,
copyright owners know that most victims will never sue because
it is not worthwhile to do so; the damage rarely will be large
enough to justify the time and cost of litigation.\19\
---------------------------------------------------------------------------
\19\ This is exacerbated by the fact that under the bill, a victim
must first ask the Attorney General to decide whether her complaint is
a valid one.
Equally as troubling is the fact that the bill creates no
obligation for the copyright owner to notify a victim that her
Internet access has been impaired. If they are subject to
misguided self help, the vast majority of computer users will
have no idea why their computer has broken down or why they can
no longer access certain files. Without a notice requirement,
even a tech-savvy victim who figures out what has occurred and
decides to bring a lawsuit will not likely know whom to sue.
Only if the victim can figure out exactly who impaired her
system (among millions of copyright owners) can she then ask
---------------------------------------------------------------------------
for the reasons for that action. Subsection (c)(2)(A).
The bill erects enormous procedural obstacles for a victim
of self-help to overcome before she can seek the remedies
provided. H.R. 5211 creates a new cause of action for an
affected file trader when a copyright owner ``knowingly and
intentionally impairs . . . [a] particular computer file . . .
and has no reasonable basis to believe that such [file]
constitutes an infringement of copyright,'' and also causes
over $250 dollars in damages to the file trader. But where H.R.
5211 giveth, it also taketh away. Even though the copyright
owner is engaging in egregious and willful activity, the bill
erects procedural hurdles to innocent citizens seeking to
obtain restitution for wrongful self-help. The innocent file
trader cannot get to the courtroom without first getting
permission from the Attorney General (Subsection (d)). Whether
the victim will ever get to court is left to the sole
discretion of the Attorney General, who has four months to make
that determination. This creates a supreme irony: the bill
erects huge legal barriers for citizens seeking remedies for
misguided self-help, while it dismantles them for content
companies seeking remedies for infringement. This is not only
anti-consumer, it is also likely unconstitutional. It delegates
to the Executive Branch the discretion to block civil litigants
from access to Federal courts, and delegates to private parties
the power to do what no government can; namely, to
surreptitiously impose a prior restraint upon communications
that are presumptively protected by the First Amendment without
any judicial determination that the speech being suppressed is
unlawful.
The bill expands protection for copyrighted works beyond
that required by the Copyright Act. Subsection (a) of the bill
provides a safe harbor for self-help actions that impair the
``unauthorized'' distribution, display, performance or
reproduction of a copyrighted work on a publicly accessible P2P
network. But not all ``unauthorized'' uses of copyrighted works
are illegal under the Copyright Act. In addition, as discussed
above, by permitting self-help against individuals who merely
make works available (rather than just those who illegally
download available works), the bill gives copyright owners an
additional ``right to make available to the public.'' This
right is now only recognized by European intellectual property
laws, and has heretofore been rejected in the U.S.
H.R. 5211 is well intended to stem the flow of illegal file
trading, but it goes way beyond what is necessary to permit the content
industries to engage in the type of non-invasive self-help described
above. While Public Knowledge might consider supporting a narrowly-
crafted proposal that clarifies that non-invasive self help is
permissible, H.R. 5211 is not that bill.
Conclusion
In conclusion, I want to thank Chairman Coble, Congressman Berman
and the other members of the Subcommittee for holding this hearing to
discuss P2P networks. As the sole representative of consumer and
citizens rights at this hearing, I would respectfully ask that you keep
the record open for thirty days to permit other public interest
organizations to submit testimony and comments.
Public Knowledge urges the Subcommittee to act cautiously before
seeking to alter the nature of a technology that improves the already
significant abilities and flexibility of computers and the Internet,
benefits artists, educators and businesses, and may very well be the
``magic bullet'' that drives broadband adoption. Illegal file trading
on P2P networks can be limited through a combination of rigorous
enforcement of the law, non-invasive self help techniques and promotion
of competition to build new business models for online music. H.R.
5211, however, goes far beyond what is necessary or reasonable to limit
illegal file trading, and if passed, could lead to actions by copyright
owners that could threaten the core capabilities of the Internet.
Thank you.
The Chair. Thank you, Ms. Sohn. And again, thanks for being
here. I do think that the timing of the recusal after the
hearing made it something that we should talk about and
certainly support, again, you being here and your willingness
to do that.
Let's just dive into some of the specifics. You were on the
Board of this company, correct, but you didn't negotiate the
settlement?
Ms. Sohn. No, I did not. It was a nonprofit corporation,
and I did not--I did not negotiate the settlement. It was
negotiated by Sports Fan Coalition New York. I was never a
party to the litigation. And from the very day I joined that
Board because there was something called the case narrowing
agreement, which I am happy to talk about, I was never
financially on the hook for a dime.
The Chair. OK. And as far as the timing of how and when
they negotiated, you also had no knowledge about that. And was
that driven by a court process where the court had outlined
this was now in a negotiated settlement and so the court had
said we want a timing of this negotiated settlement by a
certain date?
Ms. Sohn. Right. So the court entered an injunction on
September 15, and we had 30 days to decide whether to appeal or
to settle. And obviously, I was involved as a Board member in
the decision to settle as opposed to appeal. And I will be
honest with you----
The Chair. By that, you mean they consulted the Board and
you had to sign off?
Ms. Sohn. Right. They said, look, you know, we are up
against the four biggest networks, we are a tiny little
nonprofit, we don't have that much money, let's just throw in
the towel. We lost this, let's throw in the towel. And then we
had 30 days from September 15 to either decide to appeal or
settle.
The Chair. So you had no control over that. It had
nothing--your nomination of--well, let's just be clear. Someone
had suggested that you might be, and they asked you if you
wanted to be vetted, and you agreed because why not? Why not be
on the FCC, right? But that had happened months before----
Ms. Sohn. Months before.
The Chair.--so you had no idea what was happening on either
end on. You didn't have control over the settlement, and you
didn't have control over your nomination. The court was driving
the settlement process. Let's get to this number amount because
as you said, you didn't mislead the Committee on anything. You
basically answered the question about the settlement, and you
were constricted by what you could say. You were not supposed
to talk about the details of the settlement.
Since then, as you said, the information has been leaked.
But the point is that the court basically said, we are probably
not going--we are not going to find for Locast, and you guys
should reach a settlement. The settlement agreement then
basically put this stipulation in there basically as a way to
say to people, don't ever think about these ideas because we
think that they cost us a lot.
So that is their way of expressing their future incentive.
But when it came down to settling, they readily agreed to
settle on what they thought was the real impact. So that is the
difference between the numbers. Is that correct?
Ms. Sohn. That is correct. So the judge never ordered $32
million in damages, OK. And let me clarify one other thing, if
I may, Senator. Locast was found not to have qualified for an
exemption of copyright law. No liability was found by the
judge. It was not found to have infringed anything. It was just
found to not have qualified for a statutorily imposed exemption
by Congress for nonprofits.
So I think that is important. $32 million is what the
networks could have sought in statutory damage. The judge did
not ever say that Locast was liable for $32 million. But in the
stipulation, again, in order to scare away the next Locast, the
parties agreed to put in a clause that says statutory damages
was $32 million. Now what is really interesting about that is
that the settlement agreement was already agreed to and signed
by the time that stipulation was submitted to the court. So
there was never a question about what the $32 million was the
actual amount. The actual amount to be paid was always
$700,000.
The Chair. And again, you had nothing to do with that?
Ms. Sohn. Nothing to do with that. No.
The Chair. And as far as your recusal, that recusal was
about an open document issue. So in basically you are saying, I
want to be transparent, I want to make sure there is no issues.
I was on the Board of this company, and this company, and this
agreement in this settlement is related to an open docket that
you had filed a letter on long ago in a previous capacity. So
you wanted to make it clear to people that that open docket
issue is something you are not going to go back and sit on the
FCC and deal with. And so that is what your recusal states. Is
that correct?
Ms. Sohn. That is correct. I counted no fewer than eight
members of this committee expressing concern either in QFRs or
the hearing about Locast. So obviously, it concerned me that
there was so much concern. So I wanted to address that concern
by looking at the nexus of what I may have worked on before and
this litigation. And I found this petition for rulemaking that
I personally signed 12 years ago and for which there was
precedent, and I think that is really important. Chairman
Kennard did the exact same thing.
Now, he was already sitting on the Commission, but I don't
think that is--that is a distinction without a difference. It
is a voluntary, narrow and temporary recusal. And it will have,
in my opinion, and I am happy to answer questions about this
very, very little impact on my ability to be a Commissioner of
the FCC.
The Chair. Thank you. Senator Wicker.
Senator Wicker. Thank you, Madam Chair. And thank you, Ms.
Sohn for being here. Question three for the record that I
submitted, where did the money come from for the payment of the
$32 million settlement in connection with the Locast case?
Response, ``the settlement funds come from the amounts
collected to fund SFCNY's operations after it pays its
vendors.'' Do you at least acknowledge that your answer was
evasive?
Ms. Sohn. No, sir. Senator, respectfully, I disagree. I
could not. I was bound not to discuss the details of the
settlement agreement. I took that--I took that confidentiality
agreement very seriously, so I don't agree. I am sorry. I think
I answered it truthfully and to the best of my ability and to
the best of what I was allowed to tell you because I was
subject to this confidentiality agreement.
Senator Wicker. You answered it truthfully, but left the
impression that $32 million was paid, rather than only 2
percent of that amount.
Ms. Sohn. Respectfully, Senator, I could not talk about the
$700,000. I was barred from doing that in writing. I know you
have a copy of the settlement agreement. You can see right
there that I am barred from putting the terms of the settlement
agreement in writing. So I answered it as directly and honestly
as I could without violating my duty to keep the settlement
agreement confidential.
It is very unfortunate that it was leaked to the press and
leaked very selectively. I actually have screenshots of some of
the selective pages of the confident--of the settlement
agreement that were leaked to the press, and that has, I think,
allowed for a lot of misinformation to bubble up.
Senator Wicker. Let me ask you then--you and I obviously
disagree on that matter. Let me--let's move on to the recusal
letter. Whose idea was that?
Ms. Sohn. Well, it was my idea, but I did consult with--I
have a bunch of outside advisers who are smarter than I am. I
wanted to make sure that the scope of the recusal was not too
broad.
Senator Wicker. Did any Members of Congress suggest to you
that that might be helpful?
Ms. Sohn. Sir, if you don't mind, I did speak with
committee staff about it. I asked them whether they thought it
was a smart idea. I thought--I asked them whether, you know, it
might allay some of the concerns. So I did speak to committee
staff about it, yes. And you know, I think the general thought
was, yes, it wouldn't be a bad idea.
Senator Wicker. Was this suggested to you by the
Administration?
Ms. Sohn. No.
Senator Wicker. Coming down from the President?
Ms. Sohn. Quite the opposite, sir. They were very, very
much opposed to me recusing at all.
Senator Wicker. Now your rationale for recusal, on the
retransmission issue was based on past filing from your
organization, known as Public Knowledge. Is that correct? And
it was a proceeding before the FCC. The question that is out
there is, why stop there if you are going to use this
rationale? You have filed comments on other issues before the
FCC, including Universal Service Fund Rate Regulation.
Based on this rationale, why did you limit it to simply
that one filing, and will your--and is it true that your
recusal is voluntary, that there is no enforcement mechanism,
and that you could change your mind at any point and withdraw
the recusal?
Ms. Sohn. I will answer the second part first. Yes, you are
absolutely right. It is voluntary and I could--I would not do
that without seeking counsel from the ethics officials at the
FCC, as I will, you know, as I will do for many issues. But
yes, I could withdraw it, and that is exactly what Chairman
Kennard did. He, you know, he consulted with ethics counsel. He
had voluntary recuse. He consulted with ethics counsel.
And they said, well, you know what, it was 20 years ago
when you were an NAB intern, you don't have to recuse anymore.
So I could. I am not likely to. Similarly, I don't actually see
any of these issues coming before the full Commission, which we
can talk about. But yes, I could. And could you repeat the
first part of your question?
Senator Wicker. Well, you--this is one of just many filings
that you filed on behalf of Public Knowledge, and I mentioned
Rate Regulation Universal Service Fund as two of those.
Ms. Sohn. So let me talk about that. This recusal is really
what I would call a purple cow, OK. It is at the nexus of the
Locast litigation and a filing I made 12 years ago, OK. There
is no other such nexus that you can find.
I was trying to address the concerns of this committee
around the Locast litigation and whether I would be biased, and
I connected that to a petition for rulemaking that I personally
signed 12 years ago that addresses some of the same issues
raised in the litigation.
So, no, I think to recuse from everything that public
knowledge ever filed is without limits and basically prohibit
any public advocate--again, and not necessarily somebody in the
nonprofit sector. It could be somebody who worked for a
corporation or somebody who worked at a law firm.
It would prohibit them from being an FCC Commissioner as
well. So what you would have is an FCC full of people with no
knowledge about the issues, about media communications policy,
and I don't think, Senator, anybody really wants that.
The Chair. Senator Blumenthal.
STATEMENT OF HON. RICHARD BLUMENTHAL,
U.S. SENATOR FROM CONNECTICUT
Senator Blumenthal. Thanks, Madam Chair. Thank you for
being here today and for answering these questions so
forthrightly and candidly, and I want to join Chairman Cantwell
in thanking you for your transparency, but also your tenacity.
Transparency and tenacity are two very important qualities in a
public interest lawyer, which you have been throughout your
career.
And I just want to say to you, you should be proud of that
career. You should be proud of being here today, answering
these questions, and facing down these illusory innuendos and
allegations and dispelling any doubt about your qualifications
to be a member of the FCC. And you are absolutely right, the
reason you are here is bigger than you. It is part of an effort
to deadlock, disarm, and disable the FCC.
And for folks who may not know what FCC is, the Federal
Communications Commission, and may have no idea why it matters
that we have full membership on the FCC, we need to recognize
that it is stymied and stalled in enforcing the law. We pass a
myriad of laws here in the U.S. Congress. They are dead letter
if they are not enforced. And what we see here today really is
a double standard.
This committee had no qualms about approving in 2017, an
Associate General Counsel at Verizon. It was elated to approve
a Former President of the Trade Association, the CTIA. It
raised no questions about conflict of interest with respect to
them. And yes, you are always free, there is no enforcement
mechanism on a letter of recusal. But so far as I understand
it, you have no intention as you sit here to withdraw that
letter, correct?
Ms. Sohn. Correct. Correct.
Senator Blumenthal. So let me just come to the heart of the
matter. Right now, if you are a consumer, you are getting
robotexts and robocalls with fraudulent disinformation, often
obscene and disturbing messages. There is a proposal now
pending before the FCC to stop them. That proposal goes nowhere
until you are confirmed, correct?
Ms. Sohn. That is correct.
Senator Blumenthal. And will you commit to approve a
consumer protection law against those robocalls and robotexts,
if you are confirmed?
Ms. Sohn. Absolutely.
Senator Blumenthal. Right now before the Commission there
is a proposal that would give more access to people who live in
apartment buildings--one-third of America lives in apartment
buildings. Often there are revenue sharing agreements with the
broadband providers to reduce or entirely eliminate
competition, which would give them more access at lower costs.
Lower prices for broadband with more choices. That proposal
to prevent that kind of stymieing of competition is pending
before the FCC. It goes nowhere unless you are confirmed,
correct?
Ms. Sohn. I would agree 100 percent. That is one that I
don't think the Chair, as good as she is at getting 4-0
decisions, would be able to get a 4-0 decision on that. That
one is going to be deadlocked.
Senator Blumenthal. So let me ask you, will you commit to
approve better access for broadband to people who live in
apartment buildings?
Ms. Sohn. Well, I have to review the record, but that
obviously is my inclination.
Senator Blumenthal. I want to thank you for, again, your
willingness to serve. The Federal Communications Commission has
jurisdiction over issues of consumer protection that are vital
to the future of America. We are concerned about inflation and
rising costs. The FCC can do something about it, and I hope
that my colleagues will be satisfied.
There is ample reason, abundant reason to be satisfied with
the answers you have given so far to the Chairman's excellent
questions, and I hope we will move forward to approve your
nomination. Thank you for answering my question.
Ms. Sohn. Thank you.
The Chair. Senator Thune, are you ready? Sorry. Or would
you like to defer? Senator Blunt.
STATEMENT OF HON. ROY BLUNT,
U.S. SENATOR FROM MISSOURI
Senator Blunt. Thank you, Chairman. Ms. Sohn, last time you
were here, I asked you specifically why--how your actions as a
public interest advocate shouldn't bear on your ability to
appear as a neutral regulator? Your response was, the quote was
context is very important, the tweets were made in my role as a
public interest advocate, part of my job.
And then you say in terms of your recusal that it is not
part of--you are not recusing yourself because of the Locast,
because of your public advocacy. I am a little confused about
how you draw the line there. Why did you decide that the
recusal would be for this one topic if it was part of your work
as a public interest advocate as opposed to part of your
service on the Locast Board?
Ms. Sohn. That is a good question, Senator. And to be
honest with you, if I had to do it all over again, I probably
would have mentioned something about Locast in that letter
because clearly that is what I was addressing was the nexus
between the Locast litigation and this 12 year old petition for
rulemaking.
The reason I referred to the petition for rulemaking was
because it was precedent--it was precedent. It was Chairman
Kennard's precedent, so I limited it to that. But thinking
about it now, I wish I said something about the Locast. But
clearly, I mean, there is no reason given what transpired at
the hearing and what was raised at the QFRs for me to just,
sort of, out of the blue voluntarily recuse because of a 12-
year-old petition.
It was clearly related to the Locast, my service on the
Locast Board. And just as a reminder, I did not have to recuse
because of my service on the Locast Board. So I just wanted
to--like I said, I probably should have made it broader. I
didn't. But clearly, that is what I was addressing. I think
everybody knew that. I wish I had been more specific.
Senator Blunt. Based on your testimony, I think Senator
Wicker and Senator Cantwell have both received letters from
U.S. telecom, which would be AT&T and Verizon and others and
cable group NCTA have written letters expressing that based on
the rationale for your recusal offer, that you should be
recused from all those issues.
Is it your view that those letters were written--I didn't
get your exact quote, but I did get my friend Senator
Blumenthal's quote to ``deadlock, disarm and disable the FCC''?
Is that why there is opposition to your participating in these
issues?
Ms. Sohn. I think there are certain very large companies
who would like to see the FCC continue to be deadlocked. They
have been opposing--it is no secret they have been opposing my
nomination since the very beginning, and they saw an
opportunity because I did not mention Locast in that letter.
Again, even though it is clearly obvious to anybody who has
been following the saga of my confirmation or my hopeful
confirmation, my nomination, that that is what it was tied to.
So they were just, they were being opportunistic, and I
understand that, but again, their rationale if you take it to
its logical extreme, there is no limiting principle and nobody
with any knowledge who has ever spoken about these issues would
ever be qualified to be an FCC Commissioner. And that is
perverse, Senator Blunt. I really think it is perverse, and I
am not sure that anybody on this dais, regardless of your
party, would like that.
Senator Blunt. Well, you know, it is clear that you are
extremely talented and knowledgeable and experienced in telecom
law. What is not so clear to me is why you couldn't be more
forthcoming in that first hearing? And your comments today
about the agreement that none of this would be disclosed, seems
to me that what you did say was misleading at best, and maybe
not intentionally so, but there wasn't much information in the
answer you gave, but there was information in the question that
you didn't walk away from.
So we had every reason to believe that that settlement was
$32 million as opposed to whatever the settlement was. And then
I think I read somewhere that the actual exchange of money was
much less than the settlement amount. Do you regret your
answers the first time you were here to that question?
Ms. Sohn. Senator, if I had told--if I had talked about the
$700,000 in that QFR, I would have been violating the
confidentiality of the settlement agreement. That I would have
regretted. I answered that I may--I answered the questions in
the QFRs to the best of my ability and within the confines of
the settlement agreement. Let me mention one other thing, if I
may. I offered to you and to Senator Wicker to get copies of
the settlement agreement from the parties.
I was not--since I was not a party to the lawsuit, I could
not give you that settlement agreement. Senator Wicker waited,
staff waited overall almost a month to get a copy of that
settlement agreement, and we could have had this conversation
and I did meet with you, Senator Blunt, and I appreciated that,
but a lot of folks did not meet with me unfortunately.
We could have talked about it and gone through it because I
would have been able actually to talk about it with you one on
one, I just couldn't put it down in writing, OK. So I
answered----
The Chair. We have to go on----
Ms. Sohn. Sorry about that.
Senator Blunt. Thank you, Ms. Sohn. Thank you, Chairman.
The Chair. Senator Markey.
STATEMENT OF HON. EDWARD MARKEY,
U.S. SENATOR FROM MASSACHUSETTS
Senator Markey. Thank you, Madam Chair. I have been on the
Telecommunications committee House and Senate for 46 years. No
one has ever done this before, but I have met Commissioners
from so many different telecommunications industry backgrounds.
That raising an issue about Ms. Sohn's background working for
her whole career to protect consumers, from my perspective, you
know, raises an issue, and that is the issue of whether or not
you know, she is in any way compromised in her ability to serve
on the Commission.
Well, I think it is just the opposite, to be honest with
you. The experience and knowledge Ms. Sohn developed while
working to advance pragmatic telecommunications policies that
improve people's lives makes her eminently qualified. Senator
Blumenthal has already gone through so many of those issues,
net neutrality, children's protections, robocalls, you go down
the whole line.
So from my perspective, if former Federal Communications
Commission Chairman Ajit Pai, who had previously worked at
Verizon, that is one example, but I could go through--I can go
through a couple of dozen former Commissioners who came from
industries that were going to be regulated. If he was qualified
to be on the FCC, then Ms. Sohn is certainly qualified to be on
the FCC, having spent more than 30 years working from the
public interest side of telecommunications policy. And I would
note that Chairman Pai did not recuse himself from any
telecommunications issues, even though he had worked for
Verizon before he arrived at the Commission.
So I just don't want there to be a double standard here
today, OK. If we are going to have a standard, we have to have
a standard. And I think that Ms. Sohn has done a great work
with her career. She has over 200 organizations and individuals
who have called for her to be confirmed. I have never seen
anything like that before in 45 years. She has been an
incredible breakthrough candidate because of her LGBTQ
background.
And it is a critical time in communications history,
especially when we look at issues like Title II and the
question of whether or not it is a vital, essential utility or
not, and so many other issues that have to be dealt with. So I
have supreme confidence in Ms. Sohn. I think she has given very
convincing explanations for her earlier testimony and for her
reasons for not in fact disclosing everything because of the
confidentiality agreement that was part of that agreement.
So I would like, Ms. Sohn, just to give you additional time
right now out of my time just to explain more fully, if you
would like, the reasons why you believe that you should be
confirmed at this time?
Ms. Sohn. Thank you, Senator Markey. So I appreciate
actually the expressions from both sides of the aisle that you
recognize that I am qualified. I don't know if I am brilliant.
Although Charles Gasparino did say that on Fox News, I thought
that was pretty cool, on the Tucker Carlson show. Who would
have thought? I appreciate that. But what I want to make 100
percent clear here is that I have proceeded--I have answered
your questions with 100 percent honesty to the best of my
ability that I could do given the constraints I had under the
settlement agreement.
And it is right there. I don't--I have the settlement
agreement with me. I could pick it out, but it is pretty easy
to see that I was barred from talking or writing about the
particulars of the settlement agreement. And I also wanted to
make another point that settlement agreements are agreements
from parties of both sides.
And let's talk about who was on the sides of the settlement
agreement. You had the four major networks, OK, overflowing
with very fancy lawyers and lots of money. And on the other
side, you had this tiny nonprofit that only had $700,000 in the
bank that was trying to get poor people and people in rural
areas access to TV broadcasting free over the air broadcasting.
And I joined that Board, yes, after the litigation started
because I thought that was a really cool mission.
But even though the organization tried to operate under an
exemption of copyright, not a loophole, an exemption to
copyright that Congress put into the law, a court found that it
didn't qualify. So there was no, you know, no judge said that
there was a copyright violation, that it was piracy. It said,
look, you just don't qualify. Go, the two of you parties,
figure it out. So the parties, so Locast decided, Sports Fan
Coalition New York decided to settle as opposed to appeal.
And I will say again, and you can ask the networks, they
were very, very, very happy to do so because they wanted Locast
shut down. We shut down Locast. We have actually paid all the
money. We are now waiting for the networks to file a
satisfaction of judgment, which I was told 3 weeks ago that
they were going to do, but they still haven't done it, which I
find kind of interesting.
The Chair. Ms. Sohn--Senator Thune is next.
STATEMENT OF HON. JOHN THUNE,
U.S. SENATOR FROM SOUTH DAKOTA
Senator Thune. Thank you, Madam Chair. Ms. Sohn, you were,
as you noted, one of three Board members of Locast and you
signed the settlement agreement. Did the organization have the
authority to settle the case without your signature, knowledge,
and consent?
Ms. Sohn. No. Well, they did agree to the terms sheet. I
did not sign that, OK. But obviously I was on the Board. Now I
could have been--if I had said, well, I think we should appeal.
And the other two Board members said, no, no, no, we got to
settle, then--but obviously, I was consulted as to whether
Locast or excuse me, Sports Fan Coalition New York should
settle or appeal. So technically, yes, they could have moved
forward without my vote.
Senator Thune. Were you ever involved in discussions with
the litigants about reducing the $32 million settlement
agreement amount to or immediately after your nomination--prior
to, I should say, immediately after?
Ms. Sohn. No. That was decided by the parties. Again, I was
never a party to the litigation. In fact, the day I stepped on
the Sports Fan Coalition New York Board, I was never liable in
any way, I was not a party, so I had nothing to do with
negotiating anything. This was not my agreement to negotiate.
Senator Thune. Were there any commitments made to support
you publicly if you recused yourself from certain issues?
Ms. Sohn. I haven't gotten that support so no. There have
been no agreements and I don't think I have gotten anything
other than a lot of heartache for recusing, so nobody has
promised me any votes. NAB is not supporting me, right. They
are neutral, which is what they were before. So I actually
haven't gotten anything because of my voluntary recusal. I did
it because I thought it was the right thing to do.
Senator Thune. I want to shift to a policy question. I
think you and I probably have big differences of opinion about
how the FCC ought to regulate the internet. And I have argued
in the past that what your position and others who share your
position are saying is we want to regulate a 2020 technology
under a statute that is 100 years old and that it is time for
Congress to update that and I have offered to do that when I
was the Chairman of this committee to do away with a lot of the
things everybody was concerned about.
And yet, you know, we didn't have any real particular
willingness to negotiate on that. But I want to ask you because
we have a back and forth now, potentially between various
Administrations with the change of power, we have got new
rules, and which creates uncertainty and lack predictability in
everything else.
Do you think that the FCC ought to come to Congress when it
comes to the next iteration, if you will, of net neutrality
rules to prevent that back and forth?
Ms. Sohn. I would--Senator, I would love to see Congress
settle the matter of FCC authority and net neutrality. It is
not just about the bright line rules, and I know,
unfortunately, because you had a death in your family, you
weren't able to come to the December 1 hearing and I am sorry
to hear that, but I would love for Congress to settle the
matter.
And again, it is not just about the bright line rules, it
is also about the FCC having oversight. And as we learned
during the pandemic, it is very important. Nobody says that
broadband isn't an essential service anymore, so we must have
an agency that has oversight. So I would love to see Congress
do it. However, I don't think the FCC should wait until
Congress acts in order to restore that authority.
Senator Thune. So you have come out in favor, of course, of
the Obama era net neutrality rules but you have also suggested
that you would support the FCC going further to adopt policy to
handle issues like zero rating and data caps. Does that remain
your position today, yes or no?
Ms. Sohn. So I mentioned these things in I think there was
an article that was based on a paper I wrote a year and a half
ago, and my position on net neutrality, the FCC authorities is
always evolving. So I can't say--I can't stand before you today
and say, I believe in X, Y and Z.
I expect, because based on her support for starting a new
proceeding that the Chair will start a new proceeding. I will
examine the record. I will confer with you. I will confer with
my colleagues. And then, I will reach a decision. But I,
whatever I wrote in 2020 is, it was an academic paper and
frankly, it was just academic.
Because it doesn't--there have been a lot of changes even
in that year and a half, and certainly a ton of changes since
2015, when we adopted the open Internet order, changes in
business models, changes in the way consumers use Internet
access, so I can't really prejudge about what I would, how I
would rule specifically.
Senator Thune. Very quickly, the issue of impartiality. You
are going to be a referee. You have taken sides, as you have
pointed out. But I mean, some of the things that you said in
your Twitter account, the attacks that you have launched, for
example, on Fox News, ``and trust me, the latter have played
their role in destroying democracy and electing autocrats like,
say, Fox News.
Fox News has had the most negative impact on our
democracy.'' In the same tweet you said, ``Fox News is State
sponsored propaganda. You have attacked Sinclair broadcasting
and just a minute ago you attacked the big four in an answer to
a previous question. How are you going to be impartial? I mean,
these are not like positions. I mean, these are attacks and you
are going to be a referee.
Ms. Sohn. Yes, Senator. I wasn't just to be clear, I was
not attacking the big four. I was just saying they are big
companies, and they have more means than a tiny little
nonprofit. So let me just be clear with that----
Senator Thune. Fox News is an attack.
Ms. Sohn. Yes, but Fox--let me just talk about that. I, and
Senator Blunt, I am smiling at you because you and I talked
about this on December 1. Those tweets came in the discussion
of big tech and whether they should be responsible for
disinformation. And that was said as a public advocate and a
private citizen and has no bearing on any proceeding that Fox
would be involved in.
Second, Fox News is not a regulatee of the FCC. It is a
cable network, and the FCC doesn't regulate them. But that is
beside the point. The larger point is the tweets were said in
my personal capacity. I kind of wish my tone was a little less
sharp. I don't kind of wish, I do wish. And it would have no
bearing on any proceeding that would come before me at the FCC.
Senator Thune. Thank you, Madam Chair.
The Chair. Senator Peters, if he is online and remotely
joining us. If not--if not, Senator Peters, Senator Baldwin.
STATEMENT OF HON. TAMMY BALDWIN,
U.S. SENATOR FROM WISCONSIN
Senator Baldwin. Thank you. Good morning.
Ms. Sohn. Good morning.
Senator Baldwin. I want to thank you for appearing before
the Committee again, and for your continued willingness to
serve our country as a Commissioner on the FCC. I want to echo
what a number of my colleagues have said this morning that you
are extraordinarily well-qualified for this position, and with
more than 30 years of varied experience directly related to the
Commission's work, you have a reputation for consensus building
across ideologies and industries.
When you are confirmed, you are going to be bringing a very
important voice, that of a well--that of a seasoned consumer
advocate to the agency's work at a critical time when it faces
significant tasks on universal, affordable broadband
deployment, broadcast media diversity and competition, and
other issues.
The Commission will greatly benefit from your experience
and perspective as it takes on these really challenging issues.
And the Commission needs its full complement of Commissioners.
Every day that your nomination is further delayed is a day when
the FCC cannot fully discharge important responsibilities that
we have given it. This exceedingly qualified nominee has
answered our many questions and committed to a voluntary
recusal of unprecedented scope. It is time that this committee
move forward and confirm her. Finally, I want to take a moment
to recognize the historic nature of your nomination.
When you are confirmed, you will be the first openly LGBTQ
person to serve on the Commission and will join our first
female permanent FCC Chair. I have been a first a few times in
my own career and I know it is not always easy. But having
followed in the footsteps of others to get where I am today, I
know how important it is to open those doors for yourself and
for future generations of public servants, so I thank you.
One quick policy matter--not quick. I mean, these are big
matters. I believe there is tremendous value in consumers
having access to relevant local news and other information. In
a world when we can increasingly seek out sources that simply
tell us what we want to hear, local media can provide timely,
trustworthy information that keeps people connected to their
communities and their neighbors.
That is why, for my home state of Wisconsin, I have long
advocated for those living in counties in out-of-state media
markets to have the option of receiving in-state broadcasts on
their cable or satellite services. So Ms. Sohn, from your
experience as a consumer advocate, do you agree that local
media is important for improving our national discourse? Do you
believe that the Commission can strengthen local media and
ensure consumers have access to relevant content?
Ms. Sohn. Yes. Local broadcasting is the lifeblood of every
community and providing local news and information, whether
emergency services to every American, incredibly important. And
it really is, I agree with you, Senator Baldwin, it is the
bulwark against misinformation and toxic online culture, and we
must ensure the FCC must ensure that it thrives and continues
to grow.
There are a number of media ownership and media diversity
initiatives that will not move until there is a full FCC. So if
we want to strengthen local broadcasting and strengthen media
diversity, we need to have a full FCC. So I hope that is part
of the reason that this body will vote me out favorably because
I think it is necessary.
You know, there was a lot of talk at the last hearing about
how important local broadcasting is. Well, it is not going to
thrive unless we move policies forward that allow it to.
Senator Baldwin. Thank you.
The Chair. Thank you, Senator Baldwin. Next, Senator
Fischer.
STATEMENT OF HON. DEB FISCHER,
U.S. SENATOR FROM NEBRASKA
Senator Fischer. Thank you, Madam Chair. Good morning, Ms.
Sohn. Regarding your letter, you are recusing yourself on two
major media issues, and as you know, one of the matters you
have recused yourself is retransmission consent.
Chairwoman Rosenworcel recently finished her confirmation
process, and she noted that she is supportive of a rulemaking
review of retransmission consent issues. And in her written
responses, she observed that given the changes in this market
during the last several years, the FCC should first refresh the
record to inform efforts to complete the rulemaking Congress
requested in 2014.
Earlier, you said that your three to 4 year recusal on many
of these issues, as I understood it, it wouldn't matter because
these issues wouldn't come up too soon. But if the FCC does
revisit this matter, as the Chairwoman would like, does your
recusal on this major issue mean that you won't be able to
weigh in at all?
Ms. Sohn. So let me clarify exactly what I have agreed to
recuse to. So for 4 years, starting from the beginning of my
term, which by the way, began last July. OK, so the clock is
already started to run.
I am recused from participating in 1071, which is a 12-
year-old docket that hasn't been refreshed since 2014, or any
proceeding or any related proceeding that raises the exact same
issues. So if the proceeding that the Chairwoman has agreed to
do fits that category--obviously it wouldn't be 1071, it would
be something new.
If it addresses the same issues, for pretty much three and
a half more years I would not be able to participate. And I am
not sure my participation would absolutely be necessary because
I am not sure with the petition--a notice of proposed
rulemaking should probably get a 4-0.
For three years, I am, again starting from last July, so
the clock is already running, we are already half a year into
it, and if I am confirmed, I probably won't be confirmed until
who knows, April, May, maybe later. So almost a whole year goes
by. I am not allowed to part--I have voluntarily recused myself
from participating in any retransmission consent related items
or broadcast TV related items.
So yes, that three year commitment certainly would cover
that, I would think.
Senator Fischer. You know this is really a pertinent issue.
You brought up rural issues just a little bit ago about things
that we face, you know, carriage disputes and TV blackouts.
Those are things across the Board that we see. But, I hear
frustration about that back home. So are those issues that you
think that the Commission's going to be able to pass 4-0, 3 to
1? And if so that kind of counters----
Ms. Sohn. Well, Senator, let me address----
Senator Fischer.--your comments that you made about the
Commission being deadlocked.
Ms. Sohn. Yes. Let me address that. I cannot think of one
instance where the full Commission has decided a carriage
dispute. To the extent that those are ever brought before the
FCC, they usually are resolved even before the media--the Media
Bureau would be the one to resolve them in the first instance,
OK.
It would only be if one of the parties didn't like the
Media Bureau's decision that it would go up to the full
Commission. But I actually can't think of and maybe somebody
else can think of, I can't think of one instance, and I have
been doing this for 30 years, where a carriage dispute ever
went up to the full Commission.
In fact, I can't even remember a carriage dispute being
resolved by the Media Bureau. It might have been brought before
the Media Bureau, but usually the parties, because there are
marketplace pressures, usually resolve it. It is interesting.
So in 2014, when I was at the FCC, we put out a further
notice of proposed rulemaking that was based on that petition
by the way that I filed, that talked about possible changes to
the retransmission consent regime and other things like
syndicated exclusivity, so on and so forth----
Senator Fischer. I do have one more question.
Ms. Sohn. OK. But we never move forward because it is so
complicated. I guess that is what I am trying to say. Let me--I
will shorten it.
Senator Fischer. You know, I realize that you are recusing
yourself voluntarily on the retransmission consent and the
broadcast copyright issues, I believe. And you have made sure
that your recusal does not impact Section 202(h) of the 1996
Telecommunications Act. Did any part of the Locast settlement
directly or indirectly affect media ownership issues?
Ms. Sohn. It did not. And just to be clear, the Office of
General Counsel at the FCC, the ethics officials there looked--
they did see the settlement agreement, and they determined it
required no extra, no additional recusals on my part.
Senator Fischer. Thank you very much. Thank you, Madam
Chair.
The Chair. Senator Tester or Senator Peters--if not,
Senator Blackburn.
STATEMENT OF HON. MARSHA BLACKBURN,
U.S. SENATOR FROM TENNESSEE
Senator Blackburn. Thank you, Madam Chairman. Ms. Sohn,
welcome. We appreciate that you are coming back today. You
know, you and I have had so many conversations through the
year. I think we know our positions on retrans and IP laws,
some of those things. I do want to get to a couple of--a couple
of things. Let me ask you this, are you an activist, yes or no?
Ms. Sohn. I am an advocate.
Senator Blackburn. An advocate, OK. You classify yourself
as a public interest advocate, correct?
Ms. Sohn. Yes.
Senator Blackburn. OK, so tell me what is the difference
between the two terms, advocate and activist?
Ms. Sohn. You know, activists--I am not sure there is that
much of a difference. I mean, I work to ensure that the public
is educated on communications and technology policy issues. I
mean, you know, people treat the word activism as if it is
something bad. I don't think it is bad, but I don't consider
myself a public activist. I consider myself a public advocate.
Senator Blackburn. OK. So as your term you used earlier, it
is a distinction without a difference, advocate. OK, let me ask
if you agree with the following actions, because these are
actions that were carried out by organizations that you have
both praised and have been on the record of donating to in the
past. So I think this is a good way to kind of see where you
stand on--with some of these things.
OK, one of the organizations advocated sending a mob to the
home of an FCC Chairman to pressure him to act on net
neutrality. You yourself were interviewed about your role in
this event.
Ms. Sohn. So I think you are referring to the time that a
group laid down in front of Chairman Wheeler's car and wouldn't
let him come to work. I obviously did not support that. And in
fact, I made the phone call, and I did this many times at the
FCC when the activists would flood our e-mail boxes with e-
mails like thousands of them, I would get a call from Ruth
Milkman, the Chief of Staff, saying ``make it stop'' and I made
it stop. So I did not support--certainly do not support that.
Senator Blackburn. But you are deeply intertwined with
these organizations?
Ms. Sohn. No, I would say I was--I was the outreach
coordinator for Chairman Wheeler. So it was my job to tell
these people to make it stop and I did.
Senator Blackburn. To layoff, OK. Another organization you
were involved with encouraged people to threaten violence
against an FCC Chairman, his staff, and his family due to his
views on net neutrality.
Ms. Sohn. What group is that Senator Blackburn?
Senator Blackburn. This is one of the groups--I am not sure
if it was a Fight for the Future or Free Press. I will have to
get that.
Ms. Sohn. OK. I am in no way affiliated with those groups.
Do I make small contributions at the end of the year because we
worked together on some issues? Sure. That doesn't mean I
approve of everything they do. And in fact, over the years and
particularly on net neutrality, we have had very, very serious
disagreements because I have been willing to find consensus
with the other side.
Senator Blackburn. Well, another group put up billboards
and public materials calling Senator Sinema, a member--who is a
member of this committee, a telecom shill and corrupt. Another
calling for Senator Cantwell to be removed from her position as
Chair of this committee because she is as a letter to leader,
Schumer says, pandering to the broadcast and telecom industry.
Another--the list goes on and on. So what I want to know is
will you publicly disavow these organizations like Fight for
the Future and Free Press who spearheaded these efforts?
Ms. Sohn. Well, I have--I have publicly already--I have
publicly, let's put it this way, criticized--well, I don't
think I have publicly criticized--I certainly have criticized
those tactics. I don't agree with those tactics. I have told
them so. But you know, the organizations--look, we all are
affiliated with organizations that do things that we don't
like. And the way that I usually deal with it is by talking to
those folks personally.
Senator Blackburn. My times is running out. It is of
concern to me because you have tweeted support for these
groups. You have made donations to these groups. And then you
have been a public interest advocate for the issues, you share
the sentiment that these groups are pushing forward because you
have advocated for that. So being impartial as a Commissioner,
separating yourself--there has been a lot of discussion about
recusal today.
These are things that people are, and rightfully so. We are
all very concerned about this. You have taken very pointed
positions toward broadband carriers, including calling some of
their actions cruel and tone deaf. You have said that repeal of
net neutrality would encourage them to, and I am quoting you,
``rip consumers off at will.''
So do you think you can be unbiased when you are working
with these companies because while you are recused on media
issues, it seems like you can't be impartial when it comes to
the other issues, and this is my concern?
Ms. Sohn. I understand, Senator, and let me assure you that
whatever I may have said as a public advocate will have no
bearing on how I look at the record and make decisions. This is
the thing about being at the FCC, as you well know, under the
Administrative Procedure Act, you have to look at the totality
of the record and make a decision based on that record.
So what I said in my previous job, just like Chairman Pai,
didn't impact him on what he--when his work with Verizon. My
work with Public Knowledge, my work with Georgetown, my work
with Benton is not going to impact how I look at and balance
the record of a proceeding.
The Chair. Thank you. Yes, thank you. Senator Peters is
next. But I--listen, I think all--we have had--information age
is an interesting period. And so we have had people become
more, putting more and more knowledgeable people on these
Commissions, whether it is FERC or FCC or FTC.
You know, and they have been very knowledgeable staff
people. I mean, I would say Mr. O'Reilly was--probably had some
very distinct opinions. Maybe not distinct enough in some
cases, but there might be a future person from this staff at
some point in time that might like to be on the FCC. So I
appreciate your answer there. Senator Peters.
STATEMENT OF HON. GARY PETERS,
U.S. SENATOR FROM MICHIGAN
Senator Peters. Thank you, Madam Chair. And Ms. Sohn,
again, congratulations on your nomination. Welcome back. We get
to see you again in person to ask our questions. Ms. Sohn, the
bipartisan infrastructure law established the Affordable
Connectivity Program, which provides discounts on Internet
service, up to $30 per month for low income households, and $75
off for households on tribal land, as well as up to $100 for
buying a device like a computer or tablet.
According to estimates, almost 2.5 million Michiganders,
which is roughly about a quarter of the population of my state,
will be eligible for these discounts. Incredibly, an important
aspect of the infrastructure package. I don't think many people
realize how important it is to have access to broadband high
speed internet.
The FCC is making important progress on implementing these
discounts, but clearly there is a whole lot more work to do.
And last month, the FCC began soliciting comments on how to
improve the discounts. And this is critical because vulnerable
communities may be less likely to access vital assistance like
these discounts in these vulnerable communities.
The FCC noted that, ``a large number of households in
public housing would benefit from affordable connectivity
program, but only a small share of the people who rely on
Federal housing assistance are going to actually be enrolled in
that process.'' And certainly this underscores why it is so
important that the FCC strengthens its outreach and its
awareness to these discounts.
So my question is, can you comment on how your experience
and work as a public interest advocate would inform the FCC's
goal to expand access to discounts that make the Internet
service more affordable, including for the millions of
Michiganders who are eligible for these new discounts but may
simply not know about them?
Ms. Sohn. And Senator Peters that is a great question. And
actually my experience and my connections with the public
interest community make me, I would say, uniquely qualified
among those, if I were to be confirmed, among those sitting at
the FCC. I have relationships with digital inclusion advocates
throughout the country. I have relationships with State
legislators and State policymakers and public utilities
Commissions and public service Commissions.
I have relationships with libraries and educational
institutions. I mean, this is you know my--when I had a
Rolodex, it was really fat. So I think I am uniquely qualified
to actually get the information from the ground on the ground,
how is this program working? How can we fix it? How can we
strengthen it? How can we, you know, get libraries and schools
to be, you know, be part of this program?
So, yes, I see that as a really, really important role for
me is using those relationships on the ground to try to build a
more successful program.
Senator Peters. Could you explain why having a fifth
Commissioner will help ensure that the FCC is able to implement
this robust plan, hopefully, to address these and certainly
other issues associated with the affordable connectivity
program?
Ms. Sohn. Yes. Congress obviously has mandated that the
affordable connectivity program be implemented, so you are
going to get some buy--you are going to get buy-in for at least
starting the program and getting it running. But there will
always be little issues, you know, at the margins that could be
very, very important that you might not be able to get a 3-1 or
a 4-0 vote. So let me use an example.
There was a debate and a very fervent one over whether
folks should have to give the last four numbers of their Social
Security number, and that is obviously very important to folks
that are not necessarily citizens. And while the two
Republicans did vote for that, vote for not having to require
the last four numbers Social Security number to get the
affordable connectivity program, it was one of those issues
that, you know, that really, really shows that you are not
always going to get unanimity or a 3 to 1 and you need that
fifth vote.
They are just, you know, some issues on the margins that
could be critically important to the successful use and
implementation and oversight of the affordable connectivity
program that you just need that deciding vote. Most of the FCC
votes are not 3-2 votes, but there will be votes that have to
be 3-2, and you need that person to be able to make hard
decisions.
Senator Peters. Well, I appreciate that. Thank you again
for your answers. Thank you, Madam Chair.
The Chairman. Thank you, Senator Peters. Senator Moran.
STATEMENT OF HON. JERRY MORAN,
U.S. SENATOR FROM KANSAS
Senator Moran. Thank you, Chairman Cantwell. Ms. Sohn,
Welcome back.
[Technical problems.]
Senator Moran.--I think it is a fair description. You have
indicated you support, ``reasonable broadband pricing.'' My
question is, are those two things inconsistent? And if, yes,
what is your position? And if no, what is the difference?
Ms. Sohn. Well, Senator, I apologize but could you please
give you a little more context where I might have talked about
reasonable--who doesn't support reasonable broadband pricing?
Who--I mean, nobody wants high prices, so I am not--did I say
the FCC should implement reasonable broadband pricing? Should
I--did I say that they should rate regulate because I don't
know where I said that.
Senator Moran. Alright. I don't know that you said that the
FCC should rate regulate. So let me just ask you, should they?
Ms. Sohn. No. And I--the last hearing, as you know, I
expressly disavowed any support for the FCC implementing rate
regulation. I don't think--they tried to do it in cable in the
90s, didn't work out well. I don't think that is something the
FCC does well. So no, I would not support it.
Senator Moran. And so your statement in the last hearing
stands and whatever you said previously doesn't contradict that
as far----
Ms. Sohn. No, that is a distinction with the difference, I
would say yes.
Senator Moran. Yes, OK, thank you. And overbuilding. I, we
have--we are putting a lot of dollars, Congress is putting a
lot of dollars into broadband deployment at USDA, now at the
Department of Commerce, and certainly at the FCC.
One of my things I have championed is try to make sure that
the dollars that we are putting into those programs go to
places that have no or very poor connectivity and speed. Is
there any circumstance in which you would see that it's
appropriate to overbuild, or will you make certain that the
dollars and the statutory instructions that those dollars go to
places that are not, would not be overbuilding? Does that
comply with your views and is there any exception to that rule?
Ms. Sohn. So I support the framework of the bipartisan
infrastructure law that tasks NTIA, not the FCC, although I
think it is a fine model for the FCC as well, to spend the
money in unserved areas first.
And then and only then after the states have demonstrated
that they have provided the money to unserved areas, then to go
to areas that are underserved because it is not only important
to make sure that those with nothing have something, once the
money is spent there, I think it is important for those that
have not very good connectivity.
I mean, particularly, look, you know, in rural areas as so
much of Kansas is, you have got farmers who they can't, they
can't do the precision farming with 25/3, right. So they have
it, even though I don't agree with the 25/3 standard, but that
is a whole other conversation. They have it, but they have
stuff that doesn't allow them to actually make a living.
So I don't know if you would agree that once the money goes
to places that don't have anything, then folks that do have
something but something that is inadequate should also get the
money. Yes, I----
Senator Moran. I don't disagree with that. I would say
setting the standard maybe is the way you can take care of more
and serve all. But you are absolutely right. Lots of
agricultural producers--this is not just being on the Internet
at home at night looking at a movie. This is how you earn a
living in many places across Kansas, in agriculture and
elsewhere. Net neutrality.
My understanding is that the Ranking Member, Senator Wicker
and Senator Sinema have formed a working group to explore
legislative solutions to concerns about net neutrality, and I
wish that we on a less than party line vote, could develop a
net--what would be called net neutrality or what would be
called a policy in this arena. Can you explain why the FCC, if
you believe this, should preempt Congressional efforts to get
legislation passed?
Ms. Sohn. I guess I don't consider it--yes----
Senator Moran.--policy decision for Congress?
Ms. Sohn. So I guess I don't consider it preempting it. I
consider it working alongside it. In that October 2020 paper
that I referred to before, I did say the FCC should reinstate
its authority, but I also said at the same time, it must work
with Congress for a permanent solution.
I feel very passionately about this, and I feel
passionately about this, A, because I think that Congress has
frankly allowed this back and forth ping pong game, I don't
want to blame anybody in particular, to go on for too long, and
it is really up to Congress to give the FCC appropriate
authority, and we could debate what appropriate authority is,
as well as give them specific authority to either adopt a
neutrality rules or lay out the net neutrality rules and
legislation.
However, as I said before, consumers can't wait to have
some oversight, and right now the FCC does not have oversight
over broadband. And I think if the FCC were to act, that might
kick start the Congressional process. And like I said, I would
love to work with folks that want to see a Congressional result
to this because I would.
Senator Moran. A theme of mine is that Congress needs to
work, needs to do its job. We need to work together. We have
different points of view, find that consensus. Everything
doesn't have to be 3 to 2 vote. And I want Congress to deal
with net neutrality. And I certainly prefer that to the FCC via
a 3-2 vote or whatever it might be having that resolve.
The Chair. Thank you, Senator Moran. Senator Rosen.
STATEMENT OF HON. JACKY ROSEN,
U.S. SENATOR FROM NEVADA
Senator Rosen. Well, thank you, Chair Cantwell. And of
course, Ranking Member Wicker, good to see you. Ms. Sohn, thank
you for agreeing to come back to the Committee to answer these
additional questions. It is so important. And I really want to
thank you again for coming and meeting with me and my office to
discuss the real issues that we have back home in Nevada, which
was raised by my constituents and really agreed to come to
Nevada and meet with everyone, if confirmed. And I also
appreciate you reaffirming your commitment to broadcast
diversity, to rural broadband development building, on what
Senator Moran and others have said. But these are also two
critical priorities for Nevada.
Our state is more than a quarter Latino. We have one of the
fastest growing AAPI populations in the country. And so we
place a premium on greater representation in broadcast spaces.
And so therefore, I was glad to hear from you about your
interest in removing barriers for minority owned and small
broadcast stations, something I asked you the first
confirmation hearing. So you are here again.
I am going to ask you for the record, you did commit to
this in my office. Will you again please commit that, if
confirmed, you will come to Nevada as soon as possible with me
to meet key stakeholders on the ground, including the Nevada
broadcasters, to hear their concerns and engage in that
important dialog on the issues within the FCC's jurisdiction
important to Nevada?
Ms. Sohn. So I just started watching the TV show Hacks,
which takes place in Las Vegas, and I was actually thinking
about coming to Nevada. I haven't been to Vegas in a while, so
I would love to come and see more than just Vegas.
Senator Rosen. That is fantastic.
Ms. Sohn. I absolutely will.
Senator Rosen. That TV show is great, but the best thing
about being in all of Nevada is we have. I know I am sitting
here by Montana Jon Tester, but we have great blue skies and
beautiful mountains, and they are on display every single day,
so you will enjoy the scenery as well. But we want to talk a
little bit about the bipartisan infrastructure law. And so if
confirmed, of course, you will have a significant role in
helping to close the digital divide, something again everybody
is concerned about.
And as one of the members who worked on developing the
bipartisan infrastructure law and I helped to draft many of the
broadband provisions, I do know this is a once in a generation
investment in our Nation's infrastructure, and we have to have
the staff and the resources to make this investment a reality,
and that includes a fully functioning FCC. And the new law sets
forth several significant markers that need to be hit soon,
including ones related to FCC's broadband mapping program, maps
critical to us doing our job.
And that is directly tied to the new law's broadband
deployment program. Unless we map it, how do we know where we
need it exactly? So Ms. Sohn, with this in mind, can you talk
about how you envision the FCC's role in implementing the
bipartisan infrastructure law and including lowering those
barriers to broadband access and adoption?
Ms. Sohn. Well, Senator Rosen, you hit the nail on the
head, the first thing that needs to happen is those maps have
got to get done because as Secretary of Commerce Raimondo
testified last week, they can't give out the money until those
maps are finished. So I will, if I am confirmed, I will be a
partner to the Chair to get those maps done and get them done
accurately.
Obviously, the FCC also has oversight and has to implement
the affordable connectivity program, which I discussed before,
which provides a $30 subsidy to folks that cannot afford
broadband. And that is something that is going to be very
important as well. But even on top of that, the FCC is tasked
with doing a report on the future of universal service and how
the broadband, the bipartisan infrastructure law actually
reduces or changes in some way its obligations under universal
service.
Because there has been a lot of talk about how broken the
universal service program is, particularly the contribution
mechanism, and getting that report done right will have
recommendations not only for the FCC but also for Congress on
how to make sure that there is ongoing funding for broadband
and ongoing funding for Lifeline in the future. So we have got
a lot of work to do.
Senator Rosen. Well, good. I am glad my middle mile
broadband deployment bill is part of that Act, but I want to
talk about, I brought up my mountains, my mountains, the Nevada
mountains and skyline for a reason because our terrain is often
difficult, and we have rural, we have tribal areas and really
frontier. We are one of the most mountainous states in the
lower 48, very, very rough country to go through.
So it is not always, laying fiber isn't always possible.
Terrain just gets in the way. So based on our discussions about
some of our unique broadband challenges, can you tell us how
you might, if confirmed, help ensure that our rural
communities, our tribal communities separated again by
challenging terrain can have equal access to that high quality,
affordable broadband?
Ms. Sohn. Yes. I mean, this is something again, that the
infrastructure law addresses that you know, it is preferred, it
is preferred to have, you know, the most futureproof, the most
resilient, the most, you know, high powered broadband out
there. However, there are areas because of geography that will
need to be served by other technologies, by fixed wireless, by
satellite. So, you know, NTIA, the FCC needs to be flexible
when it comes to those places, specifically with regard to
tribal.
I have been a huge advocate for the tribes having more
sovereignty over the spectrum over their land and over their
wireline networks as well. And in fact, I just had a
fascinating conversation with the President and Vice President
of the Navajo Nation about how they can increase their
sovereignty over their broadband.
And they have seen--I have visited Hilo River. It is
Arizona. It is too bad Senator Sinema isn't here. And I saw the
power of them owning their own broadband and what it does to a
community. It completely transforms it.
Senator Rosen. Yes, it could change health care, education,
so many things, access. So thank you. I see I am over my time.
The Chair. Senator Scott.
STATEMENT OF HON. RICK SCOTT,
U.S. SENATOR FROM FLORIDA
Senator Scott. Chair Cantwell, thank you for holding this
hearing. Ms. Sohn, thank you for being here today. Given the
incredibly important position you are nominated to hold, I
think it is important to discuss previous statements you have
made.
You previously tweeted that quote, ``Fox News has had the
most negative impact on our democracy.'' And that Fox News is,
``state sponsored propaganda.'' Now whether you are a fan of
Fox News or not, I think it is pretty disturbing someone
nominated to the Federal Communications Commission has such a
documented negative public opinion on one network or another.
You have also stated that Senate Republicans, ``ideology
has overtaken their duty to serve their constituents.'' In your
last year, you told my colleague, Senator Blunt and I quote,
``my opinions as a public interest advocate will have no
bearing on how I behave as a policymaker, if I am confirmed.''
Now, we live in a world where censorship over political
opinions or COVID-19 have actually run rampant and has become a
detriment to our society.
I think more than ever, we need more public discourse, not
less. Not only have you advocated for censorship, but you have
also recently announced that you would recuse yourself from a
number of issues facing the FCC due to conflicts of interest.
I struggle to how--I struggle to understand how the
American public can trust you to fulfill all the duties of this
position if you aren't able to be involved with much of the
work due to your past involvement with the streaming service
that is now illegal. It seems as if the American public would
be better served if we had a nominee that could, at a minimum,
participate in the Commission's work without recusal.
I have got a few questions for you. And I will go through
them then you can answer, what ideology about Senate
Republicans are you most concerned about? You claim that your
personal opinions do not dictate how you will perform as a
policymaker. But given your documented negative comments about
Republicans and conservative broadcasters, how can you
reasonably expect the American public to trust you as impartial
and apolitical?
In response to my written questions, for the record in your
last confirmation hearing, you say that you do not believe that
the Government should regulate Internet rates. However, you
indicated in a tweet in 2020 that the FCC had the authority to
mandate low cost broadband plans. That sounds like great
regulation to me. So has your position changed on Internet rate
regulation?
Ms. Sohn. So there is a lot there, so let me just take it
one at a time. I think when the ideology tweet, if I recall, I
was upset because there was an effort to try to expand eRate
during the pandemic to households so that eRate funds could be
used to pay for kids who are home because of the pandemic. And
I was told by a Hill staffer that Republicans didn't want to
expand the eRate--they probably didn't want turbo charged or
something along those lines.
So that is--my tweets, including that one that you have got
up there, have been said, perhaps in a tone that I would maybe
slightly regret today, were in the process of debates as my
role--in my role as a public advocate as part of a debate over
policy. OK, they are not, you know, some personal opinion that
I just kind of threw out there. They are part of my role as a
public advocate.
Let me also say that I have praised Republicans on Twitter,
including Senators Wicker, Moran, Sasse, Romney, Portman,
Cornyn, Kennedy, Murkowski and Hawley, and Representatives Issa
and Scalise. In fact, I looked up when I was a President of
Public Knowledge. We actually gave Representative Issa an
award, an IP3 award.
So I have, you know, criticized Democrats and I can list
those for you if you would like in the QFRs. So do I generally
criticize--have I generally criticized Republicans more than
Democrats? Praised Democrats more than Republicans? Probably. I
mean, given who I am, that is not a surprise. But it is not a
one way street, so I want to make that very, very clear.
Let me talk a little bit about that tweet in particular.
Again, it was done in the context of a hearing about social
media and how they have a negative impact in our democracy. So
I did raise the point that this is true of Fox News as well.
Fox News is not a regulatee of the FCC. So again, while I
regret my tone, I wish it was a little less sharp, I don't
think it would impact what I would have--the work that I would
have to do with the FCC because I would have no, I have no
oversight, I would have no oversight, if I am confirmed, over
Fox News.
And even if I did, let's just say I did just for the heck
of it, I would have to look at the record. I would have to
consult with my colleagues. I have to consult with Congress
before I come to a decision.
Senator Scott. So based on all this, you still believe you
are impartial, you can act impartially?
Ms. Sohn. Absolutely. I have been on the same side or on
the opposite side of every regulated industry. I have had
people--so people may have seen my friend Preston Padden, who
worked for Rupert Murdoch, who worked for Disney, who is a
copyright hawk extraordinaire, has written an Op-ed, has
written letters, just wrote a letter to this committee.
I mean, folks that I disagree with vehemently on policy
issues still support me because they know I am fair and they
know I am unbiased, and they know that my door will always be
open and I will always listen. So absolutely, I believe that I
can be impartial.
The Chair. Thank you. Senator Young. I mean, Senator
Sullivan. Sorry, Senator Sullivan.
STATEMENT OF HON. DAN SULLIVAN,
U.S. SENATOR FROM ALASKA
Senator Sullivan. Thank you, Madam Chair. I don't even know
where to begin here. I too, I am very disturbed. We had a
discussion last hearing Ms. Sohn on your tweets, and look,
this--we are not nominating you for any normal Assistant
Secretary. You are the FCC--you are going to be an FCC
Commissioner, enormous power, particularly as it relates to
free speech, particularly as--it actually relates to liberty in
our country.
And I think Senator Scott raises some really important
points, which is I don't see how you can be unbiased. Fox News,
a State sponsored media propaganda. Republicans know the only
way they can win an election is to suppress the vote. These are
yours.
Here's a retweet ``your raggedy white supremacist President
and his cowardly enablers would rather kill everybody than stop
killing black people.'' That is a retweet. Damn, that is--that
is way out there, right. I mean, do you think most Republicans
are racists and white supremacists?
Ms. Sohn. Absolutely not, Senator Sullivan.
Senator Sullivan. That is not what your retweet----?
Ms. Sohn. No, I am not familiar with that tweet, but I am
happy to look at it.
Senator Sullivan. Remember retweeting that one?
Ms. Sohn. I do not. I have tweeted probably over 10,000
times, so I don't remember.
Senator Sullivan. Look, I think the average American,
whether you are Republican or Democrat, is tired of this,
right. The number of Biden nominees who come out here and have
tweeted about Republicans being white supremacists and racists,
it seems like that is how you get nominated in this
Administration. You are one of them.
We have had a bunch here. People are just tired of it. And
I have raised issues with the Comptroller of the Currency. She
has socialist views. A lot of Republicans had issues, with
Democrats, too.
They pulled her name. You know what she said when she was
asked about Republican criticism of her views, quote ``they are
racists.'' People are just tired of this. Do you have a view on
that? Do you think all Republicans are racist?
Ms. Sohn. Absolutely not. And as I just told Senator Scott,
I have praised many Republicans on Twitter, off Twitter, in
press releases, and in giving them awards when I was in the
nonprofit. When I run a nonprofit.
Senator Sullivan. Your organization that you ran for many
years, Public Knowledge, I believe, they called this hearing
pointless. Do you think this hearing is pointless?
Ms. Sohn. I have not been affiliated with Public Knowledge
for 8 years. I left in 2013. Their opinion is their opinion.
Senator Sullivan. Do you think this hearing----
Ms. Sohn. No, I definitely think it has a point.
Senator Sullivan. Do you think that we are--that the U.S.
Senate having a committee looking at the ethics and recusal
issues of a very important, powerful nominee, do you think that
is pointless?
Ms. Sohn. No, Senator Sullivan and I am here to answer all
your questions. I am happy to answer every question that you
have for me. I will answer it honestly and to the best of my
knowledge.
Senator Sullivan. So you don't agree with some of the far
left organizations who wrote Senator Schumer calling on
Chairman Cantwell to be removed because of this hearing?
Ms. Sohn. Of course I don't. Of course, I don't.
Senator Sullivan. I don't either. I think Chairman Cantwell
is doing a good job in this.
Ms. Sohn. I agree.
Senator Sullivan. Well, let me get to the point of the
hearing. And again, I just have a hard time thinking you can be
neutral when you have been so involved. So you have this
recusal, but I think your recusal raises more questions than
answers. By the logic of your recusal letter, shouldn't you be
recusing yourself from proceedings involving every issue that
Public Knowledge has filed while you were President?
Ms. Sohn. Absolutely not.
Senator Sullivan. Why?
Ms. Sohn. So I explained this before----
Senator Sullivan. And please be brief because I have more
questions.
Ms. Sohn. The reason that I filed this letter was because I
was addressing specific concerns, including by you, Senator
Sullivan, about my involvement with Locast. I should have--you
missed this earlier in the hearing, but I should have put that
in the letter. I did not.
Instead, I tied it to precedent that Chairman Kennard did
similarly voluntarily recuse. I tied it to a 12 year old
petition. But certainly it had to do with the concern of I
counted no fewer than eight members of this committee over my
involved with Locast.
Senator Sullivan. But the 1,100 different public filings by
Public Knowledge all go to the heart of matters in which you
are going to be empowered to rule on. So you have come in as
the President and Co-founder of that organization with all
kinds of views as it relates to many of these issues, not
random issues, issues front and center in terms of your power,
should you be confirmed.
So isn't that the definition of meaning that you need to be
recused? I actually think the recusal here is just the tip of
the iceberg as it relates to the Locast settlement. I think you
should be recused on the 1,100 public filings in which, and if
that is the case, you might as well not even be confirmed
because you weighed in on almost everything. Why shouldn't you
recuse yourself on everything else you have weighed in?
Ms. Sohn. Senator, this is a voluntary recusal. I have
other examples as well on a very narrow issue that is directly
tied to my involvement with Locast.
Senator Sullivan. You are not answering my question. You
weighed in--yes Madam Chairman?
The Chair. Senator Sullivan----
Senator Sullivan. This is important. I am not badgering
her. I am trying to get her to answer my question.
The Chair. OK, she said she will answer your question. We
do have a vote underway. And so everybody's gotten their first
5 minutes. Would you yield to Senator Wicker for his questions
and then you can come back and ask more?
Senator Sullivan. Yes.
The Chair. Would that be possible?
Senator Sullivan. Yes.
The Chair. Thank you. Senator----
Senator Wicker. Just quickly, Ms. Sohn. You have repeatedly
talked about the confidentiality provision in the settlement,
and you have the settlement in front of you.
Ms. Sohn. I do.
Senator Wicker. Is that paragraph 6.0? We are having
trouble finding that in the agreement.
Ms. Sohn. Yes, it is right here.
Senator Wicker. Well, read that to us.
Ms. Sohn. No party will communicate or authorize anyone to
contact or communicate with the media or press orally, in
writing, or otherwise concerning the agreement or the order, or
issue any press release or other written statement disclosing
the terms of the agreement. If asked by the media press about
the agreement, a party or council may only state that the
litigation is over and refer the person inquiring to the Order.
Senator Wicker. So it seems to me that paragraph 6.0 is
about press releases and speaking to the press, and I notice
you emphasize in your voice other written statement. You
clearly were not prohibited by this paragraph from answering a
question to the Commerce Committee of the U.S. Senate.
Ms. Sohn. Well, that is not what I was, how I was advised
by counsel. OK, I was advised by counsel that I could not
reveal, because partly because whatever was in my QFR is going
straight to the press, right. The QFRs are public. I mean, we
can--again I was advised----
Senator Wicker. That--we can really tie ourselves in knots
on that. I don't think this prohibits you from answering
forthrightly to the Committee on questions for the record. One
other thing, you said you didn't get anything in exchange for
your recusal. It is a fact that you pretty much turned the
National Association of Broadcasters around because of your
recusal. Is that not correct?
Ms. Sohn. That is not correct. They do not support my--they
do not support my nomination. They are remaining neutral, which
is where they were before.
Senator Wicker. OK, here is what I have that when your
nomination came out, they expressed grave concerns. After the
recusal, they said this, the CEO of NAB, Mr. Curtis Liggett,
said quote, ``Sohn's recusal agreement resolves the concerns of
the NAB raised during her nomination. 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 and are eager to
work with her and the full complement of Commissioners in the
very near future.'' If that is a--if that is a neutral
statement, that is not the way I read it. I read it as very
supportive.
Ms. Sohn. Well, except I asked Curtis Liggett. We talked
after the letter was filed and he told me NAB is not supporting
my nomination. They remain neutral, so.
Senator Wicker. Did you talk with anyone from NAB about
whether or not you should sign this recusal?
Ms. Sohn. No.
Senator Wicker. Thank you.
The Chair. Senator Sullivan. And just so members know, I am
trying to get these last questions in and then get to the vote,
so if there is anybody else out there, you better come now
because we would like to get to the vote. Thank you. Senator
Sullivan.
Senator Sullivan. Thank you, Madam Chair. And Ms. Sohn, I
do want to go back to this issue that I just raised here a
couple of minutes ago and it goes to this issue of recusal. And
again, we all have our views, right.
I think a lot of the industry has taken a neutral position
in part because you are going to have so much power over them,
which I think is also troubling, but let me--there is a recent
letter to Senator Cantwell and Senator Wicker from NCTA, and
they raised the same issue that I just raised, I am going to
quote from it. Michael Powell, a former Commissioner, very
well-respected. In the letter, he said, ``first, there is no
explanation for why these particular broadcast matters are
singled out. Given the breadth of the issues in which Public
Knowledge was involved under Ms. Sohn's leadership, her recusal
should logically extend to all matters in which Public
Knowledge was active, or conversely, none of those activities
should give rise to recusal.''
So you are kind of in this middle zone, right? You are
saying, I am going to be recused, and yet you are kind of half
in, I think, to address some of the issues that Senator Wicker
mentioned. But you have weighed in, you and your organization,
you are the co-founder of the organization so that is your
voice, on all kinds of issues that are again going to be front
and center.
And it goes directly to Senator Scott's previous question,
which is how can you come into this from the perspective of a
neutral observer who doesn't have predisposed view on some of
these issues. That is a polite way of saying, or more
legitimately for this hearing, which I think is not pointless
by the way, that this goes to the issue of conflicts, it seems
to me you have conflicts everywhere and that makes your
impartiality, not to mention your judgment, I think you have
very big issues with judgment given your previous tweets--when
you besmirch half the American population as white
supremacists, probably not very good judgment. But again, to
the recusal issue, why shouldn't you be recused on everything
that you have come in on? These are front and center issues
directly that are going to be before you if you get confirmed.
Ms. Sohn. Senator, my recusal is tethered to my tenure as a
Board member of Locast, OK. The way you are describing my
recusal is untethered to any concern that has been raised by
this committee about any relationship that I had.
Senator Sullivan. I am raising--this committee in the form
of me is raising concerns right now about your advocacy as the
head of Public Knowledge.
Ms. Sohn. I understand Senator, and by your logic----
Senator Sullivan. It was not just me. You have the industry
that you are going to--one of the elements of the industry that
you are going to regulate has the same issues. This is one of
many letters we have received.
Ms. Sohn. Yes, Senator. Let me try to explain. By your
logic, nobody who had ever taken a public position on any
telecommunication or media issue, be they a corporate lawyer, a
lawyer in private practice, an academic would ever be able to
be an FCC Commissioner.
Senator Sullivan. So, I am not saying that. I am saying----
Ms. Sohn. Well, that is what you are saying----
Senator Sullivan.--1,100 filings. There is a bit
difference. At a certain point, quantity becomes its own
quality here.
Ms. Sohn. Well, the ethics rules don't say that, and the
ethics laws don't say this. This is a voluntary, temporary,
narrow recusal.
Senator Sullivan. But you don't think this goes to the
issue of impartiality?
Ms. Sohn. No, sir, because I believe I can be impartial
because I will have to look at the record. Frankly, I didn't
have to recuse here. I was doing this solely to address the
concern of many members of this committee about my involvement
with Locast.
Senator Sullivan. Let me ask one other----
Ms. Sohn. I think I could be--I certainly believe I could
be impartial with regard to retransmission consent and
broadcast TV copyright, but I voluntarily recused in order to
ensure------
Senator Sullivan. Let me ask another question here before
my time runs out.
Ms. Sohn. Please.
Senator Sullivan. Net neutrality, do you think Congress, or
the FCC has the authority to undertake net neutrality? Here is
my--here is more specific. Many of us on both sides of the
aisle here Senator Thune, Senator Sinema, Senator Cantwell have
been working on this issue. Now it's complicated.
It's taking a long time. You know, that is part of there
are constitutional structures. You know, ask James Madison
about how long it can take to make law particularly something
very complicated. Here is the question I have, is it ever OK to
say, hey, look you elected officials, not very knowledgeable
you are taking too long, let us experts get to work, and we
will devise net neutrality rules?
This is kind of what Chairman Wheeler did, I know you
worked for him on that. Who has the authority to undertake net
neutrality legislation?
Ms. Sohn. Well, legislation, obviously Congress, right. I
mean, the FCC adopts policy, and the D.C. Circuit has said that
the FCC has the authority.
Senator Sullivan. What if we take too long? What if we
take--It has taken a long time?
The Chair. Well, that is a bad intro because you are
another--you are over 40 seconds here. Can we?
Senator Sullivan. Well, can I--Madam Chair, it is a really
important question. I think some Democrats----
The Chair. I know, but you are on round two and I am trying
to get these guys in round one, so.
Senator Sullivan. Well, can she just answer the question?
Ms. Sohn. My answer--as I said, I think what Senator Moran,
I would love to see Congress settle the matter of FCC authority
and net neutrality. But until then, the FCC has the authority
to act and the Federal courts, D.C. Circuit in the Mozilla case
and in the Verizon case, said the FCC has authority to act, has
the authority to adopt net neutrality rules, and authority to
repeal them.
The Chair. And I wasn't--she had answered that same
question with some of my colleagues. That is why I was, you
know, trying to speed it up--OK, we have Senator Young, then
Senator Cruz.
STATEMENT OF HON. TODD YOUNG,
U.S. SENATOR FROM INDIANA
Senator Young. Thank you, Chairman. Ms. Sohn, Welcome. You
are required to recuse yourself from any manner in which you
could have a financial benefit. However, as has been discussed
repeatedly today, you chose to submit a voluntary letter of
recusal to the FCC's Acting General Counsel on January 27,
informing them that should you be confirmed, you would recuse
yourself from any matter, ``where retransmission consent or
television broadcast copyright is a material issue.''
You explain in this letter that this is done to avoid any
appearance of impropriety and to ensure that the public has
full confidence that policymakers will make decisions free of
bias. Your letter goes on to explain that you signed a petition
for rulemaking in the FCC's rulemaking process for this issue.
Ms. Sohn, as my colleagues have discussed, the Committee is in
possession of a list of other issues that may show that you
have a potential bias dating back to 2001.
Many of these also show your signature. I won't list every
instance here, of course, but I will be including them in my
questions for the record. Today, however, can you just
reiterate for me, if you would, why you would recuse yourself
regarding retransmission consent, but not other issues? Or more
specifically, when will you voluntarily recuse yourself in the
future? What is, in short, the Sohn rule?
Ms. Sohn. So the reason that I submitted this letter was to
address concerns from many members of this committee over my
involvement with Locast, OK. And I tied that based on precedent
to a petition for rulemaking that I signed 12 years ago. So
that is very, very narrow, OK. Now if there are other documents
that I have signed while I was at Public Knowledge, I will be
happy to talk to ethics counsel about whether I should recuse.
I am happy to do that. Anybody can challenge my
impartiality. That is possible. Industry could do that. But
this is the only issue because of the general concern on the
Committee that I am agreeing to voluntarily recuse myself
temporarily from a set of very narrow issues highly unlikely to
come before the Commission.
Senator Young. So is--I believe you said before this
voluntary recusal is a purple cow in a reflection of concern
from a number of members of this committee during a hearing
last December. Some of my colleagues have pointed out that the
Committee has favorably reported nominees that previously
worked in industry and for particular industry aligned
associations and have alluded to the idea that some of our
serious questions for you are simply a result of your
experience as a public interest advocate.
That is unfortunate because we are sitting here genuinely
attempting to understand the source, the details, and in future
impact of your voluntary recusal. And while you did point to
that, you just mentioned the precedent to a 1998 recusal is
precedent. It raises questions of how this is all going to play
out in the future. So I will ask you, how binding is your
recusal letter?
Ms. Sohn. Well, it's voluntary, so I could with again,
advice of ethics counsel, if needs be, unrecuse myself or they
would basically give me license to unrecuse myself. It's not
permanently binding.
Senator Young. OK. So you can simply rescinded if you
chose?
Ms. Sohn. Well, I would not rescind it without consulting
with counsel. That is absolutely--I can make you that promise.
No, I am not inclined to rescind it, period. But you know,
let's say the Chair came to me and said, Gigi, I really need
you on this issue. And it is kind of, you know, it is kind of a
gray area.
And, you know, will you talk to Council about it, whether
you can participate, whether there is a problem with
impartiality, which that is kind of the--that is the standard
from the ethics rules that you look at. I would do that.
Senator Young. Thank you for that. One final thing, so I
think you have laid the foundation for this. Having said all of
that and having reassured the Committee and members of the
public, do you have any concern that anyone that might be
affected by your decisions, this could undermine trust in the
FCC's stability moving forward if that recusal changed at some
point in the future, since you do have the flexibility to
change it after consultation with ethics counsel?
Ms. Sohn. I don't think so. Look, I have had overwhelming
support from the public, from real people, actually, 350,000
citizens have weighed in on my behalf, 250 organizations,
including some of the--I didn't get to talk to Senator Scott
about the censorship issue when I have support from, you know,
the President of One America network and the CEO of Newsmax and
the President now of the Parents Television Council.
I mean, can we put this censorship thing to bed? It is a
little bit ridiculous. But in any event, no, I think actually
there is an overwhelming desire from the public that they do
sit on the FCC. Not that I don't sit on the FCC.
The Chair. Senator Cruz.
STATEMENT OF HON. TED CRUZ,
U.S. SENATOR FROM TEXAS
Senator Cruz. Thank you, Madam Chair. Ms. Sohn, the Biden
Administration has a pattern of abusing their power, abusing
their power and getting struck down in court over and over
again. As you know, I have significant concerns about your
record, that you have demonstrated a hostility to conservative
speech in particular, to Fox News in particular.
And the FCC is a very dangerous person--place for a
regulator to have the authority to silence political views with
which you disagree. But we now have a second issue that
implicates ethics that I think is deeply serious. You were a
Board member of the nonprofit Sports Fans Coalition New York,
which operated the Locast streaming service. You joined the
Board knowing that they had been sued for copyright
infringement.
In a Federal district court, entered summary judgment for
the plaintiffs that they had engaged in copyright infringement,
that they had broken the law. Ultimately, the case was settled.
And I have got to say, Ms. Sohn, the timing of the settlement
stinks. The Biden Administration announced their intent to
nominate you on October 26, 2021.
A confidential settlement agreement was signed on October
27, 2021, the day after the intent to nominate. Your actual
nomination was made October 28, the next day. And on that day,
a public settlement was filed. The public settlement claimed
that the plaintiffs, ABC, NBC, CBS, were going to be paid $32
million, that they had $32 million in damages. That was the
public settlement announced on the day of your nomination.
What nobody knew at the time is that the secret settlement
cut $32 million down to $700,000. That is $0.02 on the $1.00. I
have litigated a lot of cases, I have settled a lot of cases. I
don't recall ever settling a case that my clients had won, that
we had a victorious court judgment for two cents on the dollar.
But you know what, I have never had a case against someone who
was about to be the regulator of my industry.
On the face of that, that is a sweetheart deal. Did you
disclose that sweetheart deal, paid to the company on whose
Board you served, or rather not paid from the company that is
essentially a gift from the companies the FCC regulated? Did
you disclose to this committee that agreement?
Ms. Sohn. I did. So, Senator, let me just explain first, I
was not a party--this was no sweetheart deal, OK. Number one, I
was never financially liable from the day I stepped on the
SFCNY Board because there was a case narrowing in agreement----
Senator Cruz. Did you disclose the agreement to this
committee?
Ms. Sohn. I did. I said the matter was settled. Let me
explain----
Senator Cruz. Hold on a second. The matter was settled
wasn't an answer. Did you disclose the secret settlement
agreement that settled it for $700,000 not the $32 million that
was public? Did you disclose it to this committee, yes or no?
Ms. Sohn. I did. I did what I did when----
Senator Cruz. You disclosed the $700,000 secret settlement?
Ms. Sohn. No, because I was not allowed. OK, I was not
permitted.
Senator Cruz. Ms. Sohn, that is actually incorrect. What
provision of the agreement says you are not allowed to?
Alright, I have it in front of me. It is provision 6.0, and
here is what it says.
I am going to quote it. ``No party will communicate or
authorize anyone to contact or communicate with the media or
press earlier in writing or otherwise concerning the agreement
or the order.'' Last time I checked, the U.S. Senate is not the
press.
There is nothing in this agreement that prohibits you from
disclosing it to the Senate. You did not disclose it to the
Senate. Let me ask you this, did you disclose it to the White
House?
Ms. Sohn. Well, again, everything----
Senator Cruz. Yes or no, did you disclose the $700,000
secret settlement to the White House?
Ms. Sohn. No, I did not.
Senator Cruz. So you did not disclose it to the White
House? The entire vetting they did, nobody asked about this?
Ms. Sohn. I was vetted long before. Can I talk about the
timing, Senator, if I may?
Senator Cruz. Sure.
Ms. Sohn. OK. The settlement--first of all, it is
important. I was not a party to the settlement, and I could
explain why I signed the settlement agreement, if you want to
talk about that.
Senator Cruz. You knew about it?
Ms. Sohn. I was not--no, I was not a party.
Senator Cruz. Did you know about it?
Ms. Sohn. Did I know about what?
Senator Cruz. The settlement, the settlement----
Ms. Sohn. Of course I did.
Senator Cruz.--the two cents on the dollar, the $31,300,000
that ABC, NBC and CBS effectively gave away to the company on
whose Board you sat?
Ms. Sohn. Of course I did. I sat----
Senator Cruz. The day you were nominated.
Ms. Sohn. No, OK, because I didn't sign it until after I
was nominated.
Senator Cruz. Why does it matter when you signed?
Ms. Sohn. If you----
Senator Cruz. You knew about it, and you didn't disclose it
to this committee?
Ms. Sohn. Yes, I did, OK. Let me just step back for a
second, OK? Let's talk--can we talk about the timing because
you are wrong on the timing, OK. There was a term sheet, an
enforceable term sheet that I did not sign that lays out--that
was October 12, OK, and that is referred to in the settlement
agreement. If you look at the very big beginning of the
settlement agreement----
Senator Cruz. OK, so you knew about the sweetheart deal two
weeks earlier. Fine. That doesn't change the timing of----
Ms. Sohn. There is no sweetheart deal. I don't benefit--I
don't benefit. But is not a sweetheart deal that is to me.
First of all, it is a settlement, right? So you have got these
four powerful networks up against a tiny little nonprofit.
Senator Cruz. And by the way, it is striking. The one
network that didn't sign the agreement was Fox News. Fox News
also happens to be the network that you have shown incredible
animus toward. I got to say I have been in the Senate 10 years
now.
I have never seen a nominee for any regulatory Board who,
at the exact moment of her nomination, saw the companies that
would be regulated by her effectively give a $31,300,000 gift
to a company on whose Board she sits. That is truly stunning,
and it is disturbing.
Ms. Sohn. Senator, respectfully, I would like to explain.
The judge--first of all, they were not--Locast was not found to
have infringed copyright. They were found to only have not
qualified for the Congressionally mandated nonprofit exemption,
OK. So there is no--there was no--the judge did not say, Judge
did not say that Locast had violated copyright. It did not
impose any liability and it did not impose a $32 million
judgment, OK.
Senator Cruz. Is this accurate, from what was publicly
filed, ``plaintiffs are awarded statutory damages under the
Copyright Act against Sports Fans Coalition New York in the
amount of $32 million.'' That is what was publicly announced
and then in the private secret agreement was it was reduced to
$700,000.
Ms. Sohn. Senator, let me explain----
The Chair. I have to interrupt because I have to go and
vote, and I wanted to get a few things in, but might ask
Senator Rosen to take over. Senator Lee is actually next, but I
am going to submit something for the record as it relates to
privacy.
We have been in this big privacy discussion and the privacy
discussion has been also in questions that we have asked of the
FTC and FCC Commissioners who have been here about the--whether
some of those, that the ISP sector should be----
Senator Cruz. Madam Chair, are you going to let her answer
the question?
The Chair. Yes, I am going to. Yes.
Senator Cruz. There was a question that----
The Chair. You mean your question, Senator? Yes. Yes, I am
trying--she has answered this question about five times already
that is why I am trying to get into something because I have to
go vote. Unfortunately, we are trying to be very accommodating
here. But now the floor is 40 minutes into a vote. And you know
that we have a colleague who is trying to cut members off. So I
am trying to put something into the record and then we will go
to Senator Lee.
Senator Cruz. So you are not going to let her answer the
question?
The Chair. She has answered it, and yes, she can continue
to answer after I leave. Yes, she can do that. And then we will
go to Senator Lee. OK, the point is, you keep putting
misinformation out there and she will answer it and I will
answer it as well. But I am also trying to get this onto the
record.
OK, so please, if you could, you can do it for the record,
the issue is moving those ISPs under the FTC versus the FCC.
And we had a hearing about broadband and broadband--we also had
a hearing about these larger privacy issues of the Facebooks at
all, basically violating privacy, our colleagues on the
subcommittee held this very important hearing and obviously we
are working on privacy legislation.
And I will submit a question. But this recent FTC report
saying that these ISPs also were doing some of the same
behaviors that the larger Internet companies were doing and
violating people's privacy is something we want to get on the
record, and maybe that's something we should be having hearings
about for the future. OK. To--you can go ahead and finish, but
we want to get to----
Ms. Sohn. Sure, Senator, you are looking at the stipulated
consent judgment and permanent injunction, OK. And that states
that the plaintiffs are awarded statutory damages in the amount
of $32 million and that was filed on the 28th, OK. The
agreement, the $700,000 agreement was agreed to long before
that.
The language is in there because the networks wanted that
language--this is language agreed to between Sports Fan
Coalition New York and the four networks, and the networks
wanted that language in order to scare away anybody who might
want to start Locast 2.0. That is not the judge----
Senator Cruz. So you said you didn't sign the secret
agreement? I am holding the signature page----
Ms. Sohn. I did----
Senator Cruz.--secret agreement. Your signature is on it
with the date right of October 27.
Ms. Sohn. But that is not----
Senator Cruz. Amazingly the day before you are nominated.
You signed the secret agreement. The public agreement says $32
million. The secret agreement says $700,000 and you kept that
secret?
Ms. Sohn. Well, because I wasn't--it is a confidential
agreement.
Senator Cruz. No, under the terms of it, you were not
allowed to talk to the press about it, but you were allowed
to----
Ms. Sohn. No, that is not what counsel has advised me. I
could not speak about it orally or in writing, but that is
beside the point.
Senator Cruz. That is what the provision says. We are not--
--
Ms. Sohn. Well, that is how you interpret it. But that is
not how I was advised by counsel. But the larger point is that
the judge never issued a mandate or said anything about $32
million. That language was part of a negotiation between Sports
Fans Coalition New York and the networks.
The networks wanted that language in there to scare off any
future Locast that might come off in the future, OK. But that
was not--the judge did not impose a $32 million fine. That
language is there as part of an agreement.
And again, that document was filed long after the agreement
to pay $700,000 was agreed to, because that was agreed to on
October 12, two weeks before I was nominated, and I didn't even
know at the time, and neither did the parties, whether and when
I would be nominated. I honestly had given up at that point
because I had been vetted many, many months.
Senator Rosen. So, thank you. Senator Lee has been waiting
patiently for his time and we are in the middle of a vote. So,
Senator Lee, please.
STATEMENT OF HON. MIKE LEE,
U.S. SENATOR FROM UTAH
Senator Lee. One of the reasons why some hearings like this
can become heated and contentious has to do with the immense
authority that the FCC has, and that relates to some of the
questions I wanted to ask. Who has lawmaking authority under
our constitutional system, is it a Federal agency or is it
Congress?
Ms. Sohn. Congress.
Senator Lee. So it stems from that and therefore an agency
shouldn't be legislating. That is, an agency shouldn't be
prescribing rules of general applicability to the public
without authority from Congress. Would you agree with that?
Ms. Sohn. Yes.
Senator Lee. Should--and an agency once granted that
authority should confine its rulemaking authority to that
delegated by Congress, correct?
Ms. Sohn. Yes.
Senator Lee. Now, what about where there is ambiguity?
Should a Federal agency that is charged with administering one
of these statutes, granting some delegation, should they
harness the ambiguity and then use that to parlay it into their
rulemaking power to force the hand of Congress?
Ms. Sohn. Well, Senator, I have lived and died by the
Chevron doctrine, and the Supreme Court has said that where
language of the law is ambiguous, unless what an agency does is
arbitrary and capricious, they get deference.
Senator Lee. Sure, sure. I get that. But I think you see
the point that I am describing. I certainly agree with your
first two answers, and I also understand the Chevron Doctrine
and what it says and what it does. I do think it is important
to contrast the answers that you provided in response to my
first two questions with which I wholeheartedly agree, with
other statements that you have made, some of which concern me.
One of them that concerns me in particular deals with what
I think a pretty good example of the kind of thing that I am
concerned about in administrative law generally, which is the
harnessing of statutory ambiguity in the text in order to force
the hand of Congress, the very entity that must delegate the
rulemaking power in question. Because when that happens, the
people's elected lawmakers no longer are in the driver's seat.
Now this particular statement that I want to draw your
attention to is one that you made specifically in the context
of net neutrality when asked a question about net neutrality
legislation. Here is what you said, ``as became clear during
the COVID-19 pandemic, broadband is an essential service, and
it cannot continue without oversight. Therefore, while I would
urge swift Congressional action, consumers cannot be left
unprotected while Congress deliberates.'' So we both just
agreed that an agency shouldn't exercise rulemaking power
absent Congressional delegation authorization to do that very
thing.
And yet that does seem to be the opposite of what you have
just said you would like to do. In other words, you are saying
that while Congress deliberates, if Congress doesn't act to
your liking, to your satisfaction, the FCC would have to jump
in and make up the difference. How can those two things be
reconciled?
And if you are trying to force the hand of the agency--of
the lawmaking body of the Federal Government by doing that
which only Congress can do, how is that Constitutional?
Ms. Sohn. Well, I guess I might have misunderstood you.
Obviously, where Congress has said specifically, that agency
cannot act. It cannot act, OK. But where it is ambiguous,
Chevron counsels that the agency can act. Now, look, there are
people--and I am not sure the FCC--I know that when I was at
the FCC and we adopt the open Internet order, we didn't act in
order to force Congress's hand.
Now I would like Congress to act, but we acted because we
believed that broadband needed to have some oversight and that
consumers needed to be protected and competition needed to be
promoted. So I may----
Senator Lee. So why urge swift Congressional action if
Congress need not act?
Ms. Sohn. Because we have gone through this ping pong game
now for 20 years, where you have a Democrat in office saying
Title II or authority and you have a Republican--and then a
Republican comes along and says, no deregulate. I mean, this is
not good for anybody. It is not good for consumers. It is not
good for industry. So, yes, I would like to see Congress
resolve the question.
Senator Lee. Alright. Let's talk about another quote. This
is from you, ``while it is usually preferable that Congress be
explicit in its statutory direction, there likely will be
instances where an agency must rely on its expertise to
interpret the intent of Congress.'' Now you have just stated,
and you and I both agree that the Congress is the lawmaking
body and that an agency should exercise only that rulemaking
power delegated by Congress. So how does an agency's expertise
interpret the intent of Congress?
And is the intent of Congress actually what is at play, or
is it the meaning of the statutory text, the original public
meaning of the words? I think you can see my concern. My
concern here is that to the extent we have Federal regulatory
agencies charged with administering a particular--a Federal
statutory regime, it gives them some regulatory enforcement
authority.
To the extent that they have, the people operating that
agency have ambitions and policy views that extend beyond what
Congress has utilized, especially with Chevron--Chevron is now
being used almost as a sword not just as a shield to penetrate
the will of Congress and to force Congress's hand to act where
Congress has declined to act, isn't that a problem?
Ms. Sohn. Yes, let me make two points, is number one,
again, and I think it bears repeating many, many times, I would
love to see Congress act to give the FCC appropriate authority
over broadband. Congress has not acted. However, D.C. Circuit--
--
Senator Lee. But where does Congress tell you that you have
got the power to act simply because Congress doesn't act
consistent with your liking?
Ms. Sohn. Well, the D.C. Circuit has said, both in the
Mozilla case and the Verizon case, that the FCC has authority
to bring broadband under Title II and to adopt net neutrality
rules. So the courts have actually spoken. Look, as I said
before, I have lived by Chevron and died by Chevron. It is an
imperfect doctrine, but it is the law of the land.
Senator Rosen. Thank you, Senator Lee. That concludes our
hearing for this morning. Thank you, Ms. Sohn, for appearing
before the Committee today and for your continued commitment to
public service. I hope that today's hearing addressed members'
concerns once and for all.
Senators will have until Monday, February 14 at noon to
submit questions for the record to the Committee. Ms. Sohn will
have one week to respond to those questions. Thank you again,
and that concludes today's hearing.
[Whereupon, at 12:20 p.m., the hearing was adjourned.]
A P P E N D I X
CALinnovates: How Gigi Sohn's Nomination to the FCC Went From
Concerning--To Fully Corrupt Today's political arena tolerates
hypocrisies with a greater degree of acceptance than many would like,
though the public absolutely draws a line at shady backroom deal-
making.
This is why we ought to be aghast at the process surrounding Gigi
Sohn's nomination to the FCC. Recently, Sohn announced that, if
confirmed, she would recuse herself for several years on matters
related to retransmission consent or television broadcast copyright.
These issues are of great importance to FCC and to broadcasters, and
broadcasters were worried about Sohn's record on them.
Sohn had been in hot water about these matters since late 2021. In
November of 2021, the National Association of Broadcasters expressed
that while they did ``not currently oppose the nomination of Gigi Sohn,
we have serious concerns about her involvement as one of three
directors of the illegal streaming service Locast.'' That streaming
service had essentially fleeced the broadcasters by illegally streaming
their content for free. Sohn was a board member and supported the
activity.
Thereafter, Sohn's nomination hit choppy waters, and suddenly, she
couldn't be on the wrong side of the broadcasters anymore. Thus, her
recent gambit: Recusing herself from big issues pertaining to
broadcasters.
Her recent bending-of-the-knee led to this: ``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 and are eager to work with her and the
full complement of commissioners in the very near future.''
From ``serious concerns'' to ``eager''--welcome to rank regulatory
corruption in 2022. Here is the bottom line: An embattled nominee for a
regulatory position just announced that she would not regulate so that
she could comfortably earn her regulatory posting. There is a fitting
Latin expression for this, one that doesn't wear well in the halls of
Congress: A quid pro quo.
To put it bluntly, Sohn's job as an FCC Commissioner would be to
regulate the broadcast industry. And yet, at a moment of maximum peril
for her nomination, she promised the broadcast industry that she'd be
hands-off for a few years.
Set aside the flagrantly unethical nature of this. Consider a more
practical problem with Sohn recusing herself on retransmission and
copyright issues, a conundrum best articulated by the Wall Street
Journal: ``These subjects consume a large share of the FCC's regulatory
bandwidth, which means the agency could be deadlocked for good or ill
on many issues.''
The decision to press ahead with Sohn's nomination is a galling
dereliction of duty. There are issues of real concern including media
ownership, retransmission, and broadcast copyrights that require a
fully operational Commission. By giving up her ability to regulate
broadcasters on these issues, Sohn has neutered her own position--even
before she's been confirmed. And because she'd have to refrain from
voting on these matters, she's also neutered the FCC.
This is unacceptable. There were already questions swirling about
Sohn's backroom wheeling-and-dealing and her questionable record on
minority media ownership, among other worries. But this quid pro quo is
simply the last straw. Congress cannot and should not move forward with
a nominee for a regulatory position who has abdicated all regulatory
authority. There are certainly other qualified nominees for the FCC
post. Perhaps most importantly, any new candidates shouldn't campaign
for the job by saying they won't do the job. This FCC Commission seat
should be filled by a regulator who can actually regulate.
Gigi Sohn should not be confirmed to the FCC. My organization,
CALinnovates, published a piece today on why, which concludes with the
most pertinent point: ``This FCC Commission seat should be filled by a
regulator who can actually regulate.''
Thank you for your interest in this pressing matter.
Sincerely,
Mike Montgomery,
Executive Director,
CALinnovates.
______
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______
Gigi Sohn for A Proactive, Consumer-Focused
Federal Communications Commission
On October 26, 2021, President Joe Biden nominated Gigi Sohn to
fill the fifth seat at the FCC. The five-member commission has been
stuck in a 2-2 split since January. The agency has a tremendous amount
of work before it, and leaving it less than fully operational limits
its capacity to most effectively and proactively:
Finish updating the FCC's broadband maps to ensure the
billions of dollars appropriated by Congress in the bipartisan
infrastructure bill are distributed equitably and to areas that
need it most;
Restore the agency's authority to regulate broadband under
Title II of the Communications Act and restore net neutrality
rules;
Strengthen programs created to ensure low-income people can
afford communications services, like Lifeline and the
Affordable Connectivity Program;
Create rules to ensure our Nation's communications networks
are more reliable and resilient to natural disasters, the
climate crisis, and other threats;
Halt the dangerous trend of increased consolidation and
monopolization within the broadcast and telecommunications
sectors, and much more.
The Senate must provide the FCC with a governing majority by
confirming Sohn without delay.
Background
Sohn has over 30 years of experience working on
communications policy, and she has a demonstrated track-record
of bringing together varied stakeholders in bipartisan
coalitions to fight for equitable broadband policy, consumer
protections, competition and the open-internet. Her experience
would make her an asset at the agency as it works to implement
the mandates of the Infrastructure Investment and Jobs Act.
She served as a top aide to FCC Chairman Tom Wheeler. During
her time at the agency, the FCC adopted the only net neutrality
rules that have withstood legal challenges to their statutory
authority, modernized the Lifeline program, adopted strong
privacy rules for broadband providers and more.
Sohn helped found and lead a non-profit focused on promoting
an open and competitive communications and technology market.
Organizational Support
More than 200 organizations--including civil rights,
community media, media justice, workers rights and consumer
advocacy groups, companies and trade associations--from across
the political spectrum have sent letters (attached) to the
Senate calling for her swift confirmation.
Sohn has received support from right-wing outlets that
appreciate her work fighting to curb the power of broadcast and
cable incumbents and ensure competition in the media.
Grassroots Support
More than 110,000 people have signed petitions calling for
Sohn's confirmation since October.
Almost a quarter million activists have called for the FCC
to gain a governing majority since January 2021.
______
Statement of Newsmax CEO Christopher Ruddy Re: FCC Nominations
In the past I have dealt with both Jessica Rosenworcel and Gigi
Sohn on policy issues affecting the FCC and media and have found them
to be fair-minded persons of strong integrity.
President Biden has nominated both to the FCC and I support their
nominations.
Increasingly, independently operated cable news channels like
Newsmax are being sidelined in favor of a small number of mega-
corporations who dominate the channel line-ups, forcing upon consumers
expensive and little-watched networks. It's bad for the public interest
and dangerous for democracy.
While I don't always agree with the nominees on many policy
matters, Newsmax fully supports the Commission's mandate to promote
diversity, localism and competition in the marketplace. Newsmax
believes both nominees are committed to that mandate and I urge the
Senate to confirm the nominations of Jessica Rosenworcel and Gigi Sohn.
______
Open Letter to the U.S. Senate: Confirm Gigi Sohn to the FCC
As a media entrepreneur and the only Black owner/operator of ``Big
4'' network affiliated broadcast TV stations in the U.S., as well as
the owner of traditional and digital media platforms, including The
Weather Channel, TheGrio.com, Local Now, JusticeCentral.TV, Comedy.TV,
Cars.TV, HBCUGo.TV, Pets.TV, Sports.TV, Recipe.TV and many others, I
take very seriously the role of the Federal Communications Commission
in promoting diversity, supporting localism, and protecting freedom of
speech. That is why I am supporting Gigi Sohn to be confirmed as an FCC
Commissioner.
It should not be the case in 2021 that Black Americans, who
comprise approximately 12 percent of the U.S. population, own a
majority interest in less than 2 percent of full-power broadcast TV
stations. I should not be the only Black American who owns and operates
major network affiliated stations. The FCC is charged with promoting
diversity of ownership and viewpoints yet has fallen short of achieving
a truly diverse media landscape. Gigi Sohn understands and is a
champion against this inequity.
Over many years, she has worked nonstop to promote greater
competition and more minority ownership in broadcasting. As a
commissioner, she would have the tools to improve ownership diversity
among FCC licensees. As the first openly LGBTQ person in history
nominated to the FCC, Gigi truly understands on a personal level why
diversity and inclusion for all Americans matters. Please note that
Mignon Clyburn, the first Black woman ever to serve as acting Chair of
the FCC, understands the job extremely well and supports Gigi's
confirmation, and so do I.
As an owner of local broadcast TV stations, I understand the
critical importance to the health and safety of our citizens, as well
as to our democracy, of robust local broadcast news organizations.
According to the Pew Charitable Trusts, most Americans prefer to get
their local news from local broadcasters. The FCC is supposed to
promote localism but often fails to protect local broadcast affiliates
against abuses from much larger companies and industries. Gigi Sohn
understands this innately. For years, she has advocated for restoring a
more reasonable balance of power between local broadcasters and major
conglomerates in the communications ecosystem. She will use her seat on
the FCC to bring the ``local'' back to localism.
Finally, as someone who speaks out against injustice, racism,
unfairness, and corruption wherever and whenever I see it, I value our
American freedom of speech, and Gigi Sohn will help protect our rights
as American citizens. Whether fighting for an open Internet or for the
free speech rights of conservatives with whom she disagrees, Gigi
advocates for all people to speak and be heard. That is why multiple
conservatives who disagree with her on a lot of issues publicly support
Gigi's confirmation to the FCC. They have seen her fight tirelessly for
diversity and freedom of speech. The Senate should act quickly to
confirm Gigi Sohn to the FCC. She will do a great job for our
country!!!
Continued Success,
Byron Allen.
______
ADT Security Services
Boca Raton, FL, Nov 2, 2021
Hon. Maria Cantwell,
Washington, DC.
Hon. Roger Wicker,
Washington, DC.
Hon. Ben Ray Lujan,
Washington, DC.
Hon. John Thune,
Washington, DC.
Dear Senators Cantwell, Wicker, Lujan, and Thune,
On behalf of ADT Security Services, the leading provider of
electronic security and alarm monitoring services in the United States,
with more than 20,000 employees across the country, I am writing to
express our strong support for Gigi Sohn's nomination to join the
Federal Communications Commission as a Commissioner.
At ADT, we believe everyone deserves to feel safe. Our customers
depend on our security and monitoring services, whether they are
dealing with life safety threats resulting from an intrusion, a health
crisis, a flood, carbon monoxide (CO) threat, or a fire. Those services
depend on customer access to robust, reliable connections to our alarm
monitoring centers and, in turn, public safety officials and first
responders. While technology has changed over the course of ADT's
nearly 150-year history, our customers' expectations have not. Our
customers expect us to help keep them safe, and we don't take that
trust for granted.
Gigi Sohn has taken the time to learn the ins and outs of the
electronic security industry and has been a regular speaker at industry
events year after year. She is trusted and respected within our
industry. Ms. Sohn has introduced members of our industry to her own
broad network, and has given an industry like ours, comprised mainly of
small, regional businesses, a voice in national policy debates. Having
worked with Ms. Sohn for years, I have found her to be highly
knowledgeable, egalitarian, and above all, reasonable.
Over the past year and a half, the American public has become
critically aware of the divide between the digital haves and have nots.
When jobs, schools, and even alarm monitoring moved to a home
environment, the quality of one's Internet connection quickly became
paramount. As the FCC looks for new and innovative ways to expand
access to quality, affordable communications networks for all
Americans, I have no doubt that Ms. Sohn's passion for universal
connectivity and her collaborative spirit will be an asset to the
Commission.
On behalf of ADT, I respectfully ask that you vote to confirm Gigi
Sohn.
Sincerely,
Holly Borgmann,
Vice President, Government Affairs.
cc: Senator Marco Rubio
Senator Rick Scott
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November 16, 2021
Hon. Chuck Schumer, Hon. Mitch McConnell,
Senate Majority Leader, Senate Minority Leader,
Washington, DC. Washington, DC.
Hon. Maria Cantwell, Hon. Roger Wicker,
Senate Committee on Commerce, Senate Committee on Commerce,
Science, and Transportation, Science, and Transportation,
Washington, DC. Washington, DC.
Dear Senate Majority Leader Schumer, Minority Leader McConnell, Chair
Cantwell and Ranking Member Wicker,
We are writing to urge the swift and concurrent confirmation of
Jessica Rosenworcel and Gigi Sohn for the Federal Communications
Commission and Alan Davidson for the National Telecommunications and
Information Administration. These agencies urgently need Senate-
confirmed leaders to address the critical need for affordable and
resilient access to the open Internet in the midst of a global pandemic
and worsening climate crisis. Through bipartisan infrastructure
legislation, Congress has given these agencies enormous tasks on tight
deadlines. These exceptional nominees' appointments so late in the year
means there can be no delay in confirming them and getting started in
earnest on all of that urgent work.
These three nominees each bring decades of experience, a commitment
to the public interest, and the skills necessary to fulfill the
missions of these agencies.
Jessica Rosenworcel's tenure at the FCC makes her an exceptional
pick for FCC Chair. She is a respected and principled advocate with a
proven record of fighting for the public interest. She has long
championed efforts to ensure everyone in America, particularly
schoolchildren, have affordable and reliable high-speed broadband to
provide them with the tools they need for a successful future.
Chairwoman Rosenworcel's efforts to close the ``homework gap'' embody
that commitment. As Acting Chair, she quickly and successfully launched
the Emergency Broadband Benefit, a program that is now helping millions
of Americans afford access to the internet.
For over 30 years, Gigi Sohn's priority has been ensuring that
modern communications networks are available to everybody, regardless
of who they are or where they live. Her life's work has embodied the
standard on which the FCC bases its decisions: the public interest. She
served as a top aide to FCC Chairman Tom Wheeler and helped found and
lead a non-profit focused on promoting an open and competitive
communications and technology market. She has a proven record of
bringing together varied stakeholders, including public interest
advocates and companies, in bipartisan coalitions to fight for
equitable broadband policies, consumer protections, competition and the
open internet.
Alan Davidson has over 20 years of experience in government,
industry and public interest advocacy, making him an ideal candidate to
take up the interagency work of the NTIA, and to guide not only NTIA's
existing spectrum allocation and broadband policy work, but also its
greatly increased grantmaking and coordinating role in implementation
of the bipartisan infrastructure bill's broadband funding provisions.
Even before the pandemic struck over 21 months ago, 2019 Census
data showed that nearly 80 million people in the U.S. did not have
adequate broadband at home.\1\ According to that data, poor families
and people of color are disproportionately disconnected--only 48
percent of low-income households had a fixed broadband connection at
that time, and 13 million Black people, 18 million Latinx people and
1.3 million Indigenous people lacked this kind of adequate home
connectivity.\2\ Digital divide indicators like education and income
disparities demonstrate that many Asian American and Pacific Islander
(AAPI) communities and ethnic groups are also disproportionately
impacted, and some AAPI communities and individuals with reduced
English proficiency levels may adopt broadband at lower rates than the
national average.\3\
---------------------------------------------------------------------------
\1\ See Comments of Free Press, FCC GN Docket No. 20-269, at 4
(filed Sept. 18, 2020), https://www.freepress.net/sites/default/files/
2020-09/free_press_2020_section_706_inquiry_com
ments.pdf.
\2\ See id.
\3\ See Asian Americans Advancing Justice, Telecommunications and
Technology Fact Sheet, https://advancingjustice-aajc.org/sites/default/
files/2020-02/Lifeline%20Backgrounder.pdf.
---------------------------------------------------------------------------
At the same time communities across the country are facing more
frequent extreme weather events due to the climate crisis, and those
events are taking down crucial communications infrastructure on an
increasingly regular basis.
And while Congress passed historic legislation to address broadband
affordability and accessibility for both urban and rural communities in
the midst of the pandemic, the FCC and NTIA's ability to administer
these Congressional directives--as well as their ability to promote
affordability, competition, privacy, sound spectrum policy, and network
resiliency along with other consumer protections using existing
authorities--has been limited by the deadlocked FCC and the lack of an
Assistant Secretary at NTIA.
Any delay in confirming all three of these nominees will stall
progress on achieving those goals and ensuring that everyone in the
United States is able to access robust, affordable high-speed internet.
We urge you to confirm these three public-interest champions before
the Senate recesses at the end of the year. Thank you for your
attention to this urgent matter.
Sincerely,
18 Million Rising
Access Humboldt
Akaku Maui Community Media
Alliance for Community Media
American Library Association
Appalshop Community Media Initiative
Benton Institute for Broadband & Society
Branford Community Television
California Center for Rural Policy
California Clean Money Campaign
Capital Community Media
CATS Community Access Television Services
Center for Accessible Technology
City of New Bedford Cable Access--New Bedford, MA
Color of Change
Common Sense
Communications Workers of America
Communities Closing the Urban Digital Divide
Community Media Access Collaborative
Decode Democracy
Demand Progress Education Fund
Democracy for America
Derry Community Access Media
Duluth Public Access Community Television
Electronic Frontier Foundation
Engine
FC Public Media
Fight for the Future
Free Press Action
Friends of the Earth
Granby Community Access and Media, Inc.
The Greenlining Institute
Greenpeace USA
Hawaii Consumers
Illinois for Educational Equity
Indivisible Sacramento
Institute for Local Self-Reliance
Libraries Without Borders U.S.
Local TV, inc
Lynn Community Television
Massachusetts Community Media dba MassAccess
Media Alliance
Media, Inequality & Change Center
MediaJustice
Melrose Massachusetts Television
Movement Alliance Project
Mozilla Foundation
National Association of the Deaf
National Consumers League
Native Public Media
The New Hampshire Coalition for Community Media
Newark for Educational Equity & Diversity
North Shore TV
NTEN
OD Action
The OMNI Centre for Public Media, Inc.
OMNI Productions
Open MIC (Open Media and Information Companies Initiative)
Open Technology Institute
OpenMedia
Orion Neighborhood Television (ONTV)
The Other 98%
Our Revolution
PhillyCAM
Presente.org
Progress America
Public Knowledge
Revolving Door Project
RootsAction.org
Salem Community Television, Salem NH
Salina Media Connection; Community Access TV of Salina, Inc.
San Diego Futures Foundation
Tahoe Truckee Media
Telecommunications for the Deaf and Hard of Hearing, Inc. (TDI)
TURN--The Utility Reform Network
United Church of Christ Media Justice Ministry
Valley Shore Community Television Inc.
Western New York Library Resources Council
Winchester Community Access & Media, Inc.
Writers Guild of America West
X-Lab
______
November 17, 2021
Dear Senators Sinema and Kelly,
We write to convey the rapidly growing urgency to confirm Jessica
Rosenworcel as the Federal Communications Commission (FCC) permanent
chair and Gigi Sohn as a fifth commissioner. The FCC will have a 2-1
Republican majority if the Senate does not confirm Rosenworcel and Sohn
by the end of the year. The Senate must act quickly.
Arizona needs a fully functional FCC to help close the digital
divide, particularly acute in our state. In eight of Arizona's fifteen
counties, more than two-thirds of households lack access to high-speed
broadband.\1\ Low-income families, Native Americans, and people of
color are disproportionately disconnected, compounding grave
inequalities that were made worse during the pandemic.
---------------------------------------------------------------------------
\1\ https://www.azcentral.com/story/money/business/tech/2021/07/07/
broadband-access-arizona/47204697/
---------------------------------------------------------------------------
Broadband access is a significant problem for families living on
reservations in Arizona. Tribes are some of the least connected
communities in the United States, and eighteen percent of tribal
reservation residents have no Internet access at home.\2\ The 22
federally recognized Tribes in Arizona face unique connectivity
challenges at a time when broadband access has proven essential for
distance learning, telehealth appointments, meetings over video
platforms, connecting to remote work, and much more.
---------------------------------------------------------------------------
\2\ https://aipi.asu.edu/sites/default/files/
tribal_digital_divide_stimulus_bill_advocacy.pdf
---------------------------------------------------------------------------
Given the legislative calendar and the diminishing number of days
for hearings and confirmation votes, we have reached a critical point
to guarantee the agency charged with ensuring affordable communications
access can do its work. Failing to confirm a permanent chair and a
fifth commissioner leaves the FCC less than fully operational and
limits its capacity to most effectively:
Finish long-overdue reforms to the FCC's outdated and
inaccurate broadband maps, which are used to direct Federal
infrastructure investments;
Strengthen the Lifeline program, which helps low-income
households afford telephone and Internet service;
Create rules to make our Nation's communications networks
more reliable and resilient to natural disasters and other
threats;
Guide the deployment of new broadband infrastructure built
with Federal dollars to make it as effective as possible;
Protect consumers and workers from anticompetitive, job-
killing mergers in the telecommunications sector;
Approve emergency waivers for E-rate funded infrastructure
to be opened up for remote education; and
Meet the challenge of the 2018 Broadcast Ownership
Quadrennial Review and halt the dangerous trend towards
consolidated ownership in broadcasting by reasserting
principles of localism, competition and ownership diversity.
The FCC has the singular ability to ensure affordable and reliable
communications for all. The pandemic showed us the unshakable image of
children doing their classwork from fast-food parking lots using
borrowed WiFi. We cannot let those students or any family wait any
longer. If we are to reach the goal of having a country where everyone,
no matter their address or size of their bank account, has affordable
access to high-speed internet, we need a full commission immediately.
We urge Congress not to lose any more time and to confirm Jessica
Rosenworcel and Gigi Sohn by the end of the year.
Sincerely,
Cat's in the Cradle New Life Sanctuary
Common Sense
Gila River Telecommunications, Inc.
LISC Phoenix
Native Public Media
NTEN
Red Rock Mountain Studios LLC
Rural Arizona Action
Swinging Sixties Productions
Terabyte Media LLC
______
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______
Consumer Technology Association
Arlington, VA, November 30, 2021
Hon. Maria Cantwell, Hon. Roger Wicker,
Chair, Ranking Member,
Senate Committee on Commerce, Senate Committee on Commerce,
Science, and Transportation. Science, and Transportation.
Re: Nomination of Gigi Sohn for Commissioner, Federal Communications
Commission
Dear Chair Cantwell and Ranking Member Wicker:
I write to strongly support the nomination of Gigi Sohn to serve as
Commissioner of the Federal Communications Commission (FCC) and urge
the Senate Committee on Commerce, Science, and Transportation to move
her nomination forward expeditiously.
Ms. Sohn is extraordinarily qualified for this position. Her record
reflects a long and distinguished career in technology, media and
telecommunications policy as a consumer advocate, public servant and
academic. In addition, she is widely recognized for her commitment to
principle over partisanship and is deeply respected by industry, civil
society groups, Republicans and Democrats.
More, Ms. Sohn has always been a strong defender of free speech and
an advocate of robust, substantive debate. Our First Amendment is
nonpartisan and has been respected by Republican and Democratic FCC
commissioners alike. Ms. Sohn has an extensive record of writing and
speaking in defense of free speech and as FCC Commissioner would uphold
free expression by those with different views.
The FCC's work has never been more important for preserving a
strong economy and strengthening America's global leadership. Until Ms.
Sohn is confirmed, the absence of a full Commission will continue to
hold the agency back from addressing the Nation's most pressing
communications policy issues. Ms. Sohn is a pragmatic, data-driven
problem solver who understands what it takes to drive the future of
work, education and ongoing innovation. Based on more than two decades
of knowing Ms. Sohn, I am confident she will ask the critical questions
and truly listen to the answers, regardless of whether they are
consistent with her personal priorities.
Ms. Sohn has the qualifications of an FCC nominee that every
Senator should be pleased and proud to confirm. I encourage you to do
so.
Sincerely,
Gary Shapiro,
President and CEO,
Consumer Technology Association.
cc: Members of the Senate Committee on Commerce, Science, and
Transportation
______
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT}
______
Hon. Chuck Schumer, Hon. Mitch McConnell,
Senate Majority Leader, Senate Minority Leader,
Washington, DC. Washington, DC.
Hon. Maria Cantwell, Hon. Roger Wicker,
Senate Committee on Commerce, Senate Committee on Commerce,
Science, and Transportation, Science, and Transportation,
Washington, DC. Washington, DC.
November 30, 2021
Dear Senate Majority Leader Schumer, Minority Leader McConnell, Chair
Cantwell and Ranking Member Wicker,
We are writing to urge the swift and concurrent confirmation of
Jessica Rosenworcel and Gigi Sohn for the Federal Communications
Commission and Alan Davidson for the National Telecommunications and
Information Administration. These agencies urgently need Senate-
confirmed leaders to address the critical need for affordable and
resilient access to the open Internet in the midst of a global pandemic
and worsening climate crisis. Through bipartisan infrastructure
legislation, Congress has given these agencies enormous tasks on tight
deadlines. These exceptional nominees' appointments so late in the year
means there can be no delay in confirming them and getting started in
earnest on all of that urgent work.
These three nominees each bring decades of experience, a commitment
to the public interest, and the skills necessary to fulfill the
missions of these agencies.
Jessica Rosenworcel's tenure at the FCC makes her an exceptional
pick for FCC Chair. She is a respected and principled advocate with a
proven record of fighting for the public interest. She has long
championed efforts to ensure everyone in America, particularly
schoolchildren, have affordable and reliable high-speed broadband to
provide them with the tools they need for a successful future.
Chairwoman Rosenworcel's efforts to close the ``homework gap'' embody
that commitment. As Acting Chair, she quickly and successfully launched
the Emergency Broadband Benefit, a program that is now helping millions
of Americans afford access to the internet.
For over 30 years, Gigi Sohn's priority has been ensuring that
modern communications networks are available to everybody, regardless
of who they are or where they live. Her life's work has embodied the
standard on which the FCC bases its decisions: the public interest. She
served as a top aide to FCC Chairman Tom Wheeler and helped found and
lead a non-profit focused on promoting an open and competitive
communications and technology market. She has a proven record of
bringing together varied stakeholders, including public interest
advocates and companies, in bipartisan coalitions to fight for
equitable broadband policies, consumer protections, competition and the
open internet.
Alan Davidson has over 20 years of experience in government,
industry and public interest advocacy, making him an ideal candidate to
take up the interagency work of the NTIA, and to guide not only NTIA's
existing spectrum allocation and broadband policy work, but also its
greatly increased grantmaking and coordinating role in implementation
of the bipartisan infrastructure bill's broadband funding provisions.
Even before the pandemic struck over 21 months ago, 2019 Census
data showed that nearly 80 million people in the U.S. did not have
adequate broadband at home.\1\ According to that data, poor families
and people of color are disproportionately disconnected--only 48
percent of low-income households had a fixed broadband connection at
that time, and 13 million Black people, 18 million Latinx people and
1.3 million Indigenous people lacked this kind of adequate home
connectivity.\2\ Digital divide indicators like education and income
disparities demonstrate that many Asian American and Pacific Islander
(AAPI) communities and ethnic groups are also disproportionately
impacted, and some AAPI communities and individuals with reduced
English proficiency levels may adopt broadband at lower rates than the
national average.\3\
---------------------------------------------------------------------------
\1\ See Comments of Free Press, FCC GN Docket No. 20-269, at 4
(filed Sept. 18, 2020), https://www.freepress.net/sites/default/files/
2020-09/free_press_2020_section_706_inquiry_com
ments.pdf.
\2\ See id.
\3\ See Asian Americans Advancing Justice, Telecommunications and
Technology Fact Sheet, https://advancingjustice-aajc.org/sites/default/
files/2020-02/Lifeline%20Backgrounder.pdf.
---------------------------------------------------------------------------
At the same time communities across the country are facing more
frequent extreme weather events due to the climate crisis, and those
events are taking down crucial communications infrastructure on an
increasingly regular basis.
And while Congress passed historic legislation to address broadband
affordability and accessibility for both urban and rural communities in
the midst of the pandemic, the FCC and NTIA's ability to administer
these Congressional directives--as well as their ability to promote
affordability, competition, privacy, sound spectrum policy, and network
resiliency along with other consumer protections using existing
authorities--has been limited by the deadlocked FCC and the lack of an
Assistant Secretary at NTIA.
Any delay in confirming all three of these nominees will stall
progress on achieving those goals and ensuring that everyone in the
United States is able to access robust, affordable high-speed internet.
We urge you to confirm these three public-interest champions before
the Senate recesses at the end of the year. Thank you for your
attention to this urgent matter.
Sincerely,
18 Million Rising
Access Humboldt
Akaku Maui Community Media
Alliance for Community Media
American Library Association
Appalshop Community Media Initiative
Benton Institute for Broadband & Society
Branford Community Television
California Center for Rural Policy
California Clean Money Campaign
Capital Community Media
CATS Community Access Television Services
Center for Accessible Technology
Center for Democracy & Technology
City of New Bedford Cable Access--New Bedford, MA
Color Of Change
Common Sense
Communications Workers of America
Communities Closing the Urban Digital Divide
Community Media Access Collaborative
Decode Democracy
Demand Progress Education Fund
Democracy for America
Derry Community Access Media
Duluth Public Access Community Television
Electronic Frontier Foundation
Engine
FC Public Media
Fight for the Future
Free Press Action
Friends of the Earth
Granby Community Access and Media, Inc.
The Greenlining Institute
Greenpeace USA
Hawaii Consumers
Illinois for Educational Equity
Indivisible Sacramento
Institute for Local Self-Reliance
Libraries Without Borders U.S.
Local TV, inc
Lynn Community Television
Massachusetts Community Media dba MassAccess
Media Alliance
Media, Inequality & Change Center
MediaJustice
Melrose Massachusetts Television
Movement Alliance Project
Mozilla Foundation
National Association of the Deaf
National Consumers League
Native Public Media
Newark for Educational Equity & Diversity
The New Hampshire Coalition for Community Media
North Shore TV
NTEN
OD Action
The OMNI Centre for Public Media, Inc.
OMNI Productions
Open MIC (Open Media and Information Companies Initiative)
Open Technology Institute
OpenMedia
Orion Neighborhood Television (ONTV)
The Other 98 percent
Our Revolution
PhillyCAM
Presente.org
Progress America
Public Knowledge
Revolving Door Project
RootsAction.org
Salem Community Television, Salem NH
Salina Media Connection; Community Access TV of Salina, Inc.
San Diego Futures Foundation
Tahoe Truckee Media
Telecommunications for the Deaf and Hard of Hearing, Inc. (TDI)
TURN--The Utility Reform Network
United Church of Christ Media Justice Ministry
Valley Shore Community Television Inc.
Western New York Library Resources Council
Winchester Community Access & Media, Inc.
Writers Guild of America West
X-Lab
______
December 6, 2021
Hon. Chuck Schumer, Hon. Mitch McConnell,
Majority Leader, Minority Leader,
United States Senate, United States Senate,
Room S-221, The Capitol, Room S-230, The Capitol,
Washington, DC. Washington, DC.
Re: FCC and NTIA Nominations
Dear Majority Leader Schumer and Minority Leader McConnell:
As technology and telecommunications leaders who are working to
connect consumers and businesses to critical communications services
across our great nation that are used to support every economic sector,
including agriculture, education, health care, and manufacturing, we
are writing today to express our strong support for expeditiously
confirming President Biden's nominees to the Federal Communications
Commission (FCC) and the National Telecommunications and Information
Administration (NTIA).
FCC Chairwoman Jessica Rosenworcel, Ms. Gigi Sohn, and Mr. Alan
Davidson have demonstrated through their many years of service in the
technology and telecommunications sector, that they have the expertise
and requisite skills required for their positions. With almost a decade
of service as a Commissioner, now-Chairwoman Rosenworcel has
effectively managed the FCC during a global pandemic and has
implemented key emergency programs to connect students and families to
broadband. Ms. Sohn is a well-known public advocate and thought leader
with thirty years of experience who has focused her work on ensuring
that modern communications services are available to every consumer. As
a senior executive in the tech industry, Mr. Davidson has managed
complex matters and has been a leader on open and accessible policies,
enabling modern communications technology options in the U.S.
Both the FCC and NTIA are important agencies for advancing the
Nation's broadband and communications connectivity goals, and they are
in need of their full and permanent leadership to fulfill their
missions as soon as possible. We urge you to move their nominations
forward and confirm them.
Sincerely,
Douglas Denney
VP Legal & Regulatory
Allstream, Vancouver, WA
Chris Levendos
Executive Vice President
and Chief Operating Officer--Fiber
Crown Castle, Houston, TX
Jeff Blum
Senior Vice President, Public Policy
and Government Affairs
DISH, Englewood, CO
Gregory A. Aymar
Chief Executive Officer
FiberComm, Sioux City, IA
Kurt Van Wagenen
President and Chief Executive Officer
FirstLight Fiber, Albany, NY
Gary Watts
Chief Executive Officer
Fuse.Cloud, Jackson, MS
Michael B Galvin
EVP & General Counsel
Granite Telecommunications, LLC, Quincy, MA
Fletcher Kittredge
Chief Executive Officer
GWI, Biddeford, ME
Edward E. Hilliary, Jr.
Managing Partner
Hilliary Communications, LLC, Lawton, OK
Jerrod Reimer
President and CEO
IdeaTek, Buhler, KS
Edward J. O'Hara
Chief Executive Officer
Inteliquent, Chicago, IL
Andoni Economou
Chief Operating Officer
MetTel, New York, NY
Dane Jasper
Chief Executive Offer
Sonic Telecom, Santa Rosa, CA
Rebecca H. Sommi
VP Vendor Management
Specrotel Holding Company LLC, Neptune, NJ
Chet Kanojia
Chief Executive Officer
Starry, Inc, Boston, MA
Joshua Broder
Chief Executive Officer
Tilson, Portland, ME
Kenny Gunderman
Chief Executive Officer
Uniti Group, Inc., Little Rock, AR
Brian Worthen
Chief Executive Officer
Visionary Broadband, Gillette, WY
Ray LaChance
Co-Founder and Chief Executive Officer
ZenFi Networks, New York, NY
Ted Gilliam
General Counsel, Strategic and Regional Sales
Zayo, Boulder, CO
______
Fuse Media
Glendale, CA, December 9, 2021
Hon. Maria Cantwell, Hon. Ben Ray Lujan,
Chairman, Senate Committee on Chairman, Senate Subcommittee on
Commerce, Science, and Communications, Media, and
Transportation, Broadband,
The United States Senate, The United States Senate,
Washington, DC. Washington, DC.
Hon. Roger Wicker, Hon. John Thune,
Ranking Member, Senate Committee on Ranking Member, Senate Subcommittee
Commerce, Science, and on Communications, Media, and
Transportation, Broadband,
The United States Senate, The United States Senate,
Washington, DC. Washington, DC.
Dear Chairmen Cantwell and Lujan, and Ranking Members Wicker and Thune,
As the CEO of one of the few minority-owned-and-managed media
companies in the country, I offer my full support for Gigi Sohn's
confirmation to be FCC Commissioner and urge the Senate Commerce
Committee to confirm her nomination without hesitation.
Latino-owned Fuse Media is a multicultural focused, multiplatform
entertainment company that serves its millennial and Gen-Z audience
through a portfolio of streaming and television brands. With a mandate
to keep inclusion and representation at the forefront of all creative
and business decisions, I am proud to state that 100 percent of Fuse
original series include Latinos and people of color. But we cannot do
this job alone and, as a champion of diversity and inclusion in media
and media ownership, Ms. Sohn has proven herself to be a much-needed
advocate for communities that continue to be underrepresented in media,
despite their prevalence in society.
We know that media plays a critical role in the way we perceive
ourselves and others, yet underrepresented communities still struggle
to find content that genuinely, accurately, and respectfully reflects
their cultures and experiences. While U.S. Census data show Latinos
comprising nearly 20 percent of the U.S. population, the most recent
Annenberg Inclusion Initiative study revealed that across media, only
about 5 percent of speaking or named characters during 2019 featured a
Hispanic or Latino actor. Many of those roles tend to reinforce
negative stereotypes.
It therefore is imperative that smaller, independent media
companies committed to equal and positive presentation of
underrepresented minorities are given room and resources to thrive in
an increasingly consolidated media landscape. Ms. Sohn has proven her
commitment to ensuring such equity.
Fuse Media believes that audiences and consumers will benefit from
Gigi Sohn's confirmation as FCC Commissioner. Her commitment to
diversity of ownership and viewpoints, along with her support for
independent voices, will allow entertainment providers and companies of
all sizes to be on a more level playing field, ultimately creating
opportunities for more representation and inclusion in media.
Sincerely,
Miguel Roggero,
Chief Executive Officer.
cc:
Senator Amy Klobuchar
Senator Richard Blumenthal
Senator Brian Schatz
Senator Ed Markey
Senator Gary Peters
Senator Tammy Baldwin
Senator Tammy Duckworth
Senator Jon Tester
Senator Kyrsten Sinema
Senator Jacky Rosen
Senator John Hickenlooper
Senator Raphael Warnock
Senator Roy Blunt
Senator Ted Cruz
Senator Deb Fischer
Senator Jerry Moran
Senator Dan Sullivan
Senator Marsha Blackburn
Senator Todd Young
Senator Mike Lee
Senator Ron Johnson
Senator Shelley Moore Capito
Senator Rick Scott
Senator Cynthia Lummis
______
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LGBTQ Victory Institute
Washington, DC, December 10, 2021
Maria Cantwell,
Chair,
U.S. Senate Committee on Commerce, Science, and Transportation.
Roger Wicker,
Ranking Member,
U.S. Senate Committee on Commerce, Science, and Transportation.
Dear Chair Cantwell and Ranking Member Wicker,
We represent a cross section of individuals and organizations that
work to ensure freedom, justice and equality for LGBTIQ+ people. We
write to urge the swift confirmation of Gigi Sohn to serve as
Commissioner on the Federal Communications Commission (FCC).
Through her 30+ years of work in the non-profit sector and as
Counselor to former FCC Chair Tom Wheeler, Gigi has demonstrated her
dedication to ensuring that every American household has affordable and
robust broadband Internet. The importance of such access to the LGBTIQ+
community cannot be overstated. The Internet has served as a vital
lifeline to many in the community, particularly in those places where
for cultural or other reasons, it may be difficult to be open about
one's orientation. The Internet has allowed LGBTIQ+ people to find
others like them, validating who they are and demonstrating that they
are not alone.
Gigi would be the first openly LGBTIQ+ Commissioner of the FCC.
There have been only a handful of openly LGBTIQ+ Commissioners of
independent agencies history. Gigi can serve as a model to both
communities and her life experience brings with it a perspective on how
communications and media policies can work for the benefit of everyone
in the US.
The job of the FCC is vitally important to ensure that everyone in
the U.S. can participate fully in our society, our economy, our
education and health care systems and our civic life. Thus, it is
critical that Senate confirm a strong individual who is not afraid to
make tough decisions and can bring together the federal, state and
local policymakers, rural and urban communities, the philanthropic and
nonprofit sectors, digital equity and inclusion advocates and industry
to build and execute a blueprint for closing the digital divide. With
urge you to act quickly to ensure that the FCC benefits from the
knowledge and expertise that Gigi Sohn would bring to this role.
Sincerely,
LGBTQ Victory Institute
David C. Bohnett
GLAAD
Human Rights Campaign
InterAct
LPAC Action Network
National LGBTQ Task Force Action Fund
PFLAG
Woodhull Freedom Foundation
______
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January 3, 2022
Sen. Maria Cantwell,
Chair,
U.S. Senate Committee on Commerce, Science, and Transportation,
Washington, DC.
Sen. Roger Wicker,
Ranking Member,
U.S. Senate Committee on Commerce, Science, and Transportation,
Washington, DC.
Re: Nomination of Gigi Sohn to the Federal Communications Commission (FCC)
Dear Chair Cantwell and Ranking Member Wicker,
We write to express our support for Ms. Gigi Sohn to be a
commissioner at the FCC. We have each served as the Chief of the Public
Safety and Homeland Security Bureau at the FCC. We are fully familiar
with the responsibilities of that Bureau at the FCC, its authorities,
and the important role FCC commissioners play in ensuring that first
responders and the public can communicate reliably and effectively,
especially in emergencies.
Based on our knowledge and experience with the public safety
communications role of the FCC, our knowledge of FCC Commissioner
nominee Gigi Sohn, and our work and dedication to make the public
safer, we enthusiastically recommend that you confirm Gigi Sohn to
serve as an FCC Commissioner.
Ms. Sohn's years of advocacy in support of the FCC ensuring that
our first responders have the reliable, resilient, and secure
communications resources they need, and that public safety
communications be given the priority they deserve given their
criticality to mitigate harm, reflect her qualifications for the job.
We know and appreciate that Ms. Sohn has been focused for a long time
on what the FCC must do to make the public safer. She advocates that
even as technology changes, it is of the highest priority for the FCC
to use the authority it has to ensure that first responders have the
communications support that they need, and that the public can reach
help in an emergency over the vital commercial networks that the FCC
regulates. She views these technology changes as opportunities to
further facilitate emergency communications.
The Committee need look no further than its own proceedings to see
Ms. Sohn express her commitment in this area, her appreciation of these
concerns, and her advocacy of the importance of effective and reliable
communications for first responders and for the public in emergencies.
For example, on July 25, 2013, Ms. Sohn testified to this Committee:
--``Public safety rules must ensure that emergency services
like 9-1-1 and geolocation technologies continue to help first
responders offer emergency care, regardless of whether the
network that the customer uses is wireless or wireline, copper
or fiber.'' \1\
---------------------------------------------------------------------------
\1\ https://www.commerce.senate.gov/services/files/C5B12974-F5D6-
48F9-99DC-2854DF0C2
FC7 (p.12)
--``[T]he moments in which the public relies upon emergency
services like 9-1-1 are literally life-or-death, and it is
crucial that policymakers implement rules that maintain the
public safety components of the phone network.'' \2\
---------------------------------------------------------------------------
\2\ Ibid.
Ms. Sohn's views and advocacy to this Committee in 2013 of the
criticality of public safety communications to the FCC's mission, first
responders and the public, also was clearly reflected in her recent
testimony to the Committee in connection with her nomination to the
Commission. She outlined her views in responding to Questions for the
---------------------------------------------------------------------------
Record (QFRs):
--``I would seek to ensure that every rulemaking, adjudication
and decision of the Commission considers the potential
implications for public safety. In particular, the Commission
must ensure that police, firefighters and other first
responders have access to the resources they need--especially
in times of crisis.'' \3\
---------------------------------------------------------------------------
\3\ Questions for the Record, Senate Committee on Commerce, Science
and Transportation, ``Nominations of Gigi Sohn, to be a Commissioner of
the Federal Communications Commission; Alan Davidson, to be Assistant
Secretary of Commerce for Communications and Information, DOC; Viquar
Ahmad, to be Assistant Secretary for Administration and Chief Financial
Officer, DOC; and Jed Kolko, to be Under Secretary of Commerce for
Economic Affairs, DOC'' (Dec. 1, 2021).
--She testified specifically about ensuring that no
interference with public safety communications will be
tolerated: ``As a first priority, I would seek to ensure that
public safety communications cannot be blocked or throttled.''
\4\
---------------------------------------------------------------------------
\4\ Ibid.
--Likewise, she cited the importance of ensuring that first
responders have ``adequate and secure spectrum . . .'';
``robust communications networks . . . [reliable] during
national disasters or terrorist attacks''; ``network
reliability and resiliency''; and her commitment to ``consult
regularly with law enforcement, firefighters, EMTs and other
first responders to ensure that the unique needs of each
community are met.'' She cited the illegal use of contraband
cell phones by incarcerated individuals as a law enforcement
concern that she would work to address ``consistent with the
FCC's statutory authority.'' \5\
---------------------------------------------------------------------------
\5\ Ibid.
Each of us believe that Ms. Sohn, as a commissioner, would be a
strong advocate for the public safety and homeland security
communications policies and initiatives that are critical to the
American people and first responders. We are deeply familiar with that
mission and the important role that the FCC plays. Confirming Ms. Sohn
would enable her to bring her understanding, prioritization, and
commitment to these issues to the Commission. It is not only our words,
but her own words as well, that speak to her understanding of this,
long before she was nominated for this role.
We urge the Committee to confirm Gigi Sohn expeditiously so she can
get to work on the important mission Congress has charged the FCC with
advancing. She is someone we believe will be a strong, effective, and
knowledgeable advocate for the public's safety as an FCC Commissioner.
Jamie Barnett,
RDML, USN (Retired).
David S. Turetsky.
______
Communications Workers of America
Washington, DC, January 6, 2022
Hon. Maria Cantwell,
Chair,
U.S. Senate Committee on Commerce, Science, and Transportation,
Washington, DC.
Dear Chair Cantwell,
I am writing to urge swift action on the nomination of Gigi Sohn
for Commissioner of the Federal Communications Commission (FCC).
Throughout her career, Gigi has been a staunch advocate for the
expansion of affordable Internet access. During the T-Mobile/Sprint
merger, Sohn was a key ally in the fight to protect the jobs of the
working families who ultimately ended up being harmed by the merger.
She fights to ensure that working people and underrepresented
communities are front and center in charting the course for an
equitable communications and media ecosystem. Additionally, she
supports constructive collaboration with states to ensure effective
oversight of broadband services and infrastructure.
Gigi's voice, experience, and expertise are just what the FCC needs
during a period of increased Federal investment in broadband networks
and digital equity initiatives. She has demonstrated her commitment to
consumers and workers in the telecommunications industry throughout her
career in public interest advocacy and government service, and again
demonstrated her expertise and strong credentials to be an FCC
Commissioner at her December 1st, hearing before the U.S. Senate
Committee on Commerce, Science and Transportation.
Gigi's tireless advocacy for communications infrastructure that
equitably serves all Americans has never been more important. I
strongly urge you to swiftly advance the nomination of Gigi Sohn to
serve as Commissioner of the FCC, as she is exactly the kind of leader
we need at this watershed moment.
Thank you in advance for your consideration.
Sincerely,
Christopher M. Shelton,
President.
Cc: Members of the U.S. Senate
______
GODDARD LAW OFFICE PLC
Phoenix, AZ, January 14, 2022
Dear Senators Sinema and Kelly,
I write to express my support for Gigi Sohn to become a
commissioner at the Federal Communications Commission (FCC). Access to
affordable, reliable communications services is crucial to Arizonans
and Ms. Sohn has a distinguished career dedicated to advancing the
availability and affordability of communications service so that we can
all benefit from these transformational networks.
Arizona needs a fully functional FCC to help close the digital
divide, particularly acute in our state. In eight of Arizona's fifteen
counties, more than two-thirds of households lack access to high-speed
broadband. Low-income families, Native Americans, and people of color
are disproportionately disconnected, compounding grave inequalities
that were made worse during the pandemic.
Broadband access is a significant problem for families living on
reservations in Arizona. Tribes are some of the least connected
communities in the United States, and eighteen percent of tribal
reservation residents have no Internet access at home. The 22 federally
recognized Tribes in Arizona face unique connectivity challenges at a
time when broadband access has proven essential for distance learning,
telehealth appointments, meetings over video platforms, connecting to
remote work, and much more.
For 20 years I served on the board of directors of the Benton
Institute for Broadband & Society, a non-profit organization dedicated
to ensuring that all people in the U.S. have access to competitive,
High-Performance Broadband regardless of where they live or who they
are. Benton believes communication policy-rooted in the values of
access, equity, and diversity--has the power to deliver new
opportunities and strengthen communities.
Since 2018, Ms. Sohn has served as the Benton Senior Fellow and
Public Advocate. She is one of the Nation's leading public advocates
for open, affordable and democratic communications networks. For nearly
thirty years, she has worked across the country, including Arizona, to
defend and preserve the fundamental competition and innovation policies
that have made broadband Internet access more ubiquitous, competitive,
affordable, open and protective of user privacy.
The FCC is tasked with working with Arizona and its representatives
to get ubiquitous, affordable and reliable communications services to
our citizens. Ms. Sohn would be a knowledgeable partner in helping
Arizonans and the country meet this challenge. I urge you and your
colleagues in the Senate to support her confirmation to be a
commissioner.
Arizona and our Nation cannot wait any longer to have a fully
functioning Commission. The Agency's mission is too important.
Sincerely,
Terry Goddard.
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National Urban League
New York, NY, January 24, 2022
Hon. Maria Cantwell, Hon. Roger Wicker,
Chair, Ranking Member,
Committee on Commerce, Science, and Committee on Commerce, Science, and
Transportation, Transportation,
United States Senate, United States Senate,
Washington, DC. Washington, DC.
RE: The National Urban League's Support for Sohn FCC Nomination
Dear Chairwoman Cantwell and Ranking Member Wicker,
As President and CEO of the National Urban League, and on behalf of
its 91 affiliates in 37 states and the District of Columbia, I write to
urge the committee to swiftly consider and work with Senate leadership
to confirm Gigi B. Sohn to serve as a commissioner on the Federal
Communications Commission (FCC). As an historic civil rights
organization that is dedicated to economic empowerment in order to
elevate the standard of living in historically underrepresented urban
communities, the National Urban League supports Sohn's nomination and
believes she will advance civil rights, digital equity, and economic
empowerment for communities of color and other underserved communities.
Our country continues to face stark disparities in the availability
and adoption of broadband. The consequences of this digital divide have
been amplified by the increased reliance on high-speed Internet access
during the COVID-19 pandemic. Through our Lewis Latimer Plan for
Digital Equity and Inclusion, the National Urban League has recommended
that the FCC, the broader Biden-Harris Administration, and Congress
address these issues through broadband buildout, an affordable
broadband and devices benefit, digital education, improved utilization
of the Internet for critical government services, and increased
opportunities for communities of color to benefit from the economic
prosperity of this digital age.\1\
---------------------------------------------------------------------------
\1\ National Urban League, The Lewis Latimer Plan: A National Urban
League Approach to Digital Equity, https://nul.org/program/lewis-
latimer-plan.
---------------------------------------------------------------------------
If confirmed, Sohn's 30 years of experience on these issues at the
Commission, as a former staff member and as an advocate and academic,
will make her well-equipped to tackle these goals. Ms. Sohn has an
exhibited commitment to equity that will benefit consumers and
communities of color, as we seek to close the digital and economic
divide. In particular, she has expressed interest in boosting media
diversity and ownership, including through expansion of the broadcast
incubator program beyond radio and via a reevaluation of the FCC's
minority ownership rules as part of its 2022 Quadrennial Review.
At a time when the United States has committed $65 billion to
expanding affordable broadband access and programs, including the
Affordable Connectivity Program, we need a full and active commission
that is committed to ensuring that this funding is implemented
equitably and with informed guidance from a broad range of
stakeholders. The National Urban League sincerely urges you to advance
Sohn's nomination quickly through the Senate.
For more information, please contact Joi Chaney, Executive Director
of the Washington Bureau and Senior Vice President for Policy and
Advocacy at [email protected].
Sincerely,
Marc. H. Morial,
President and Chief Executive Officer,
National Urban League.
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Boulder Thinking, LLC
Lafayette, CO, February 7, 2022
Hon. Maria Cantwell,
Chairperson, Committee on Commerce, Science, and Transportation,
United States Senate.
Hon. Roger Wicker,
Ranking Member, Committee on Commerce, Science, and Transportation,
United States Senate.
Re: Nomination Of Gigi Sohn To The Federal Communications Commission
Gentlepersons:
I write in strong support of the nomination of Gigi Sohn to serve
on the Federal Communications Commission. I respectfully request that
this letter be entered into the record of the Commerce Committee's
February 9 hearing.
Presently retired, I held senior executive and advocacy positions
at Disney/ABC and Newscorp/Murdoch. I have testified before the
Commerce Committee many times (on one memorable occasion then Chairman
McCain sent me crawling out of the room with my tail between my legs).
Ranking Member Wicker's request for this hearing and Chairperson
Cantwell's agreement with that request both are consistent with the
long history of admirable bi-partisan comity on the committee.
Many of my friends who represent established companies and their
trade associations are trying to throw sand in the gears of Ms. Sohn's
confirmation. These are good and honorable people just doing their job
as I did for decades. But the question before the Committee is not
whether established industry companies agree with Ms. Sohn's views. The
question is whether she is qualified. The answer to that is an
unequivocal ``yes''.
Ms. Sohn is one of the most prepared and experienced nominees in
the history of the FCC. I have worked with, and against, her for more
than 30 years. She knows the issues in front of the FCC better than
almost anyone I know. Ms. Sohn has been a particularly effective
advocate for competition and new market entrants. Even those sending
unhelpful comments to the Committee acknowledge her expertise. For
example, in his letter to the Committee my friend Michael Powell, CEO
of NCTA, said, ``She is a respected and accomplished public interest
advocate''.
I would like to mention two specific issues that have been raised
regarding Ms. Sohn's nomination--Net Neutrality and Locast.
Personally, I oppose Net Neutrality. I think the absence of any
harm since the rules were repealed demonstrates that those rules were
not necessary. But a Democrat FCC majority is almost certain to
reimpose those rules regardless of the name of the third Democrat
Commissioner. Therefore, the issue of Net Neutrality is not relevant to
Ms. Sohn's confirmation. The real answer to Net Neutrality is for this
Committee to lead the Congress in finding a compromise statutory
solution that will end the ``ping-pong'' between Democrat and
Republication FCC's. But that is a longer conversation for another day.
Regarding Locast, I am a copyright hardliner who agrees with the
plaintiffs in the Locast case. But these are legitimate questions of
copyright law about which reasonable people can, and do, disagree.
Locast was the first company to test the nonprofit exemption to
copyright law. A few years ago, highly respected entertainment and
Internet entrepreneur Barry Diller backed a company called Aereo that
launched a for-profit business nearly identical to Locast that also
tested the bounds of the law. The resulting copyright litigation went
all the way to the Supreme Court. My point simply is that being
associated with Locast no more disqualifies Ms. Sohn from being
confirmed for the FCC than being associated with Aereo would disqualify
Mr. Diller.
I do not have a vested commercial interest in this confirmation. I
am someone who has battled Ms. Sohn at times and worked with her at
other times. Hers is an important voice that belongs at the FCC. I hope
the Committee finds a way to produce an overwhelming bi-partisan vote
for her confirmation.
Very truly yours,
Preston Padden.
CC: All Members Of The Committee
______
The Leadership Conference on Civil and Human Rights
Washington, DC, February 7, 2022
Support Swift Confirmation of Sohn to Federal Communications Commission
and Bedoya to Federal Trade Commission
Dear Majority Leader Schumer and Commerce Committee Chair Cantwell:
On behalf of The Leadership Conference on Civil and Human Rights, a
coalition charged by its diverse membership of more than 230 national
organizations to promote and protect the rights of all persons in the
United States, UnidosUS, the Nation's largest Latino civil rights and
advocacy organization, and the National Urban League, a historic civil
rights organization dedicated to economic empowerment in order to
elevate the standard of living in historically underserved urban
communities, we write to convey our strong support for confirmation of
Gigi B. Sohn and Alvaro M. Bedoya to serve as commissioners,
respectively, of the Federal Communications Commission (FCC) and
Federal Trade Commission (FTC). We urge the Senate Committee on
Commerce, Science and Transportation to quickly report both nominations
to the full Senate favorably and the Senate to promptly confirm both
nominees.
Our coalition is committed to ensuring that media,
telecommunications, competition, consumer protection, and privacy
policy affirms and extends our Nation's longstanding commitment to
civil rights. Both the FCC and FTC have been operating without a full
complement of commissioners since the start of the Biden/Harris
administration. The need for swift action on these nominations is
therefore critical as further delay will harm implementation of key
civil rights priorities.
The FCC is currently implementing key provisions of the
Infrastructure Investment and Jobs Act, including the new Affordable
Connectivity Program, as well as the directive to prohibit digital
discrimination. To ensure our Nation's broadcasting industry is
diverse, competitive and serves local communities, the FCC must act
quickly to complete the 2018 Quadrennial Review and initiate and
complete the 2022 Quadrennial Review in a timely manner. The FCC must
also take further steps to address the dysfunctional market and unjust
practices in incarcerated communications and implement Congress'
directive to collect equal employment opportunity data in broadcasting.
The FTC's responsibility to protect and enhance competition and
consumer protection is particularly important as much of our economy
moves online. With a full complement of commissioners, the FTC can
better enforce existing law against online discrimination based on
protected characteristics with respect to housing, access to credit,
education, employment, and public accommodations; enforce unfair and
deceptive practices in the data economy; and provide for algorithmic
transparency and fairness in automated decisions.
Both Ms. Sohn and Professor Bedoya are exemplary nominees for their
respective positions and should be swiftly confirmed. Throughout her
career, Ms. Sohn has dedicated herself to the public interest, whether
through her service on the Presidential Advisory Commission on the
Public Interest Obligations of Digital Television Broadcasters, her
advocacy for policies that promote diversity and competition in the
non-profit sector, or her time at the FCC as a senior counselor to the
chairman. An influential scholar focused on the principle that privacy
is a civil right, Professor Bedoya is exactly the leader our country
needs right now at the FTC to address the many issues relating to
technology that marginalized communities face. He was notably one of
the first to warn of the risks of facial recognition technology,
including by comprehensively pointing out the technology's biases with
race, gender, and age. The Leadership Conference also worked closely
with Professor Bedoya in urging Google to ban online ads for predatory
payday loans, which the company ultimately did.
Both nominees have shown they will establish a collaborative
process and dialogue with the civil rights community as well as consult
with the community members who are often left out of FCC and FTC
deliberations, including people of color, people with disabilities,
low-income communities, immigrants, incarcerated individuals, and other
marginalized communities. In addition, both nominees would bring
diversity to their respective institutions. If confirmed, Ms. Sohn
would be the commission's first openly LGBTQ commissioner. As a
naturalized citizen born in Peru, Professor Bedoya would be one of the
few Latinos to serve as commissioner on the FTC.
Ms. Sohn and Professor Bedoya are highly qualified, possess deep
knowledge of the challenges faced by disadvantaged populations, and
have a demonstrated commitment to collaboration with civil rights
stakeholders. The civil rights agenda at the FCC and FTC requires
rapid, focused attention. For these reasons, the Senate Committee on
Commerce, Science and Transportation should move quickly to report
these nominees favorably to the full Senate and the Senate should
swiftly confirm them. Should you have any questions, please contact
Leadership Conference Media/Telecommunications Task Force Co-Chair
Cheryl Leanza, United Church of Christ Media Justice Ministry, at
[email protected], or Anita Banerji, Leadership Conference Media/Tech
Senior Program Director at [email protected] or Bertram Lee, Jr.,
Media/Tech Counsel, at [email protected].
Sincerely,
Wade Henderson,
Interim President and CEO.
Janet Murguia,
President and CEO,
UnidosUS.
Marc Morial,
President and CEO,
National Urban League.
______
Response to Written Questions Submitted by Hon. Maria Cantwell to
Gigi B. Sohn
Sports Fans Coalition. During the nomination hearing on February 9,
2022, you answered questions about the settlement amount paid by the
defendant in American Broadcasting Cos. Inc. et al v. David R.
Goodfriend and Sports Fans Coalition NY, Inc.
Question 1. You noted that the parties agreed to settlement terms
to resolve American Broadcasting Cos. Inc. et al v. David R. Goodfriend
and Sports Fans Coalition NY, Inc. on October 12, 2021, approximately
two weeks before you were nominated to be a Commissioner of the Federal
Communications Commission and the public filing of the Stipulated
Consent Judgment and Permanent Injunction with the court. Based on your
knowledge, please provide a timeline of the resolution of this matter
and your understanding of why the parties wanted to settle this matter
outside of court instead of continuing on with litigation.
Answer. On August 31, 2021, Judge Louis Stanton of the U.S.
District Court for the Southern District of New York published an
opinion that granted summary judgment to the plaintiffs on the question
of whether Sports Fans Coalition NY (SFCNY) qualified as a nonprofit
entitled to the statutory exemption to copyright law under 17 USC
Sec. 111(a)(5). The judge ruled that no such exemption applied.
Importantly, the judge made no determination as to SFCNY's liability or
as to damages. That was because, in a case narrowing agreement dated
December 17, 2019, the parties agreed that the central issue to be
decided in this case was whether Locast qualified for the statutory
exemption to copyright law.
On September 1, 2021, Judge Stanton denied a motion for summary
judgment by defendant Goodfriend that the Federal Volunteer Protection
Act provided him immunity from liability and should result in the
dismissal of all claims against him. On that same day, the Plaintiffs
moved for entry of a Permanent Injunction prohibiting SFCNY and
Goodfriend from operating Locast.
On September 15, 2021, Judge Stanton granted plaintiffs' motion and
issued a Permanent Injunction order that barred Defendants ``along with
their officers, agents, servants, employees, attorneys and other
persons who are in active concert or participation with Defendants . .
.,'' from operating Locast.
The issuance of the permanent injunction started the clock for an
appeal of the Judge's September 15, 2021 order based on the Judge's
decision that the exemption did not apply. The time for appeal was 30
days, or October 15, 2021.
At that juncture, the Board of SFCNY was tasked with deciding
whether to appeal Judge Stanton's order or try to settle the matter
with the Plaintiffs. My understanding was that the Plaintiffs were
eager to settle because Judge Stanton's decision was favorable to them
and, at just 8 pages and based on what SFCNY lawyers believed to be a
weak argument, was vulnerable on appeal. Another factor was that there
was likely to be at least another year of discovery before the matter
would be ripe for trial, at a cost of millions of dollars to the
Plaintiffs as well as to SFCNY. That was money that SFCNY did not have,
no matter how good the chances were on appeal.
Ultimately, the Board of SFCNY decided that because of the enormous
differences in resources between the four largest broadcast networks
and SFCNY and because of the cost of the remaining discovery, motion
practice, trial and appeal, the better course was to settle the matter
now.
The term sheet setting out the terms of the settlement were signed
by the parties to the litigation (not me) on October 12, 2021, just 3
days prior to the expiration of the deadline for appeal. The term
sheet, which was enforceable, set the amount of payment from SFCNY to
Plaintiffs as the amount remaining in SFCNY's bank account after paying
its landlords and vendors and giving Plaintiffs Locast's used
equipment. To give SFCNY an incentive to bargain with the vendors and
landlords for good deals, the Plaintiffs agreed that if there were
$700,000 left in SFCNY's bank accounts, Plaintiffs would file a formal
Satisfaction of Judgment announcing to the world that SFCNY's financial
liability to the networks had been fully satisfied. The lawyers then
drafted the confidential settlement agreement that incorporated the
terms agreed to in the term sheet, which is explicitly referred to in
the text of the settlement agreement. The settlement agreement, which
was signed by 9 different individuals, including myself, was finalized
on October 27, 2021, although several of the Plaintiffs' attorneys
signed it on October 26.
On October 28, 2021, more than two weeks after the term sheet had
been signed and a day after all of the parties had signed the
confidential settlement agreement, the Parties filed and Judge Stanton
approved a ``Joint Motion for Entry of Consent Judgement and Permanent
Injunction,'' which included a ``Stipulated Consent Judgment and
Permanent Injunction,'' which was drafted and agreed to by the parties.
Among other things, the Stipulated Consent Judgment reiterated the
permanent injunction against Goodfriend and SFCNY's officers, agents,
employees and others from operating the Locast service and set out what
could happen in the event that anyone violated the permanent
injunction. The Stipulated Consent Judgment also stated that
``Plaintiffs are awarded statutory damages under the Copyright Act, 17
U.S.C. Sec. 101 et seq. against SFCNY in the amount of $32 million.''
This statement was negotiated by Plaintiffs and SFCNY with the full
understanding that SFCNY was never going to pay statutory damages
unless they lost at both trial and appeal, costly and uncertain for all
parties. It was language insisted upon by the Plaintiffs to deter
anybody who might consider starting another service similar to Locast.
The fact is that if, after paying its landlords and vendors, SFCNY only
had $700,000 left in its bank account, Plaintiffs had agreed to accept
that amount as the full settlement payment. The $700,000 was merely a
condition for making the Plaintiffs provide the Satisfaction of
Judgment.
Question 2. You were not a party to American Broadcasting Cos. Inc.
et al v. David R. Goodfriend and Sports Fans Coalition NY, Inc., and
therefore never financially liable for the resolution of this
litigation. However, you also noted during your testimony that there
was no risk of anyone being financially responsible for the activities
of Sports Fans Coalition or Locast.
Please detail your understanding of how and why the parties limited
their financial responsibility in this dispute.
Answer. On December 17, 2019, four months before I joined the SFCNY
Board, the parties entered into a case narrowing agreement, in which,
among other things, the Plaintiff broadcast networks agreed not to
pursue in this litigation or in any other litigation, ``monetary
remedies of any kind'' against any Sports Fans Coalition Board member
or employee ``arising from the operation of Locast service up through
the date of final judgment of this litigation.'' In a separate
provision in the case narrowing agreement, the Plaintiffs agreed to
withdraw any claims of monetary damages against defendant Goodfriend.
The case narrowing agreement also protected the Plaintiffs from
SFCNY's and Goodfriend's counterclaims and affirmative defenses, which
Plaintiffs wanted dropped. As a result, the case narrowing agreement
also provides that Defendant Goodfriend and SFCNY agree to withdraw
their counterclaims and affirmative defenses. The parties clearly
defined what the litigation was about: ``the evidence introduced and
the arguments asserted [will] focus adjudication on the availability of
the Exemption [under 17 USC Sec. 111(a)(5)].''
Thus, from the very earliest days of the litigation, the parties
agreed that the case was not about money, but instead a case of first
impression about the scope of the copyright exemption. I cannot speak
to the motivation behind the Plaintiffs limiting the Defendants'
financial liability here, other than to guess that was most important
to the networks was not money, but a determination that Locast was not
entitled to the exemption so that the service could be shut down.
Question 3. At the time of your testimony, you noted that although
the defendants in American Broadcasting Cos. Inc. et al., v. David R.
Goodfriend and Sports Fans Coalition NY, Inc., had fulfilled the terms
of the settlement agreement to resolve this dispute, the plaintiffs had
not filed the Satisfaction of Judgment with the court. When did the
defendants in this case fulfill their obligations of the settlement
agreement with the plaintiffs, American Broadcasting Cos. Inc. et al.?
Has the Satisfaction of Judgment been filed yet?
Answer. The Satisfaction of Judgment was filed on February 11,
2022, which resolved all matters relating to the litigation. SFCNY had
90 days from the execution of the settlement agreement (January 27,
2022) to complete all of its obligations under the settlement
agreement, including giving its used equipment to the Plaintiffs and
transferring to Plaintiffs any remaining funds in SFCNY's bank account.
The final monetary payment was made to the networks on December 3, 2021
and the last piece of equipment was delivered on January 12, 2022. All
of the obligations were completed by January 17, 2022. The Plaintiffs
agreed on January 24, 2022 to file the Satisfaction of Judgment, but
did not file the two-page document until February 11, 2022,
approximately three weeks later.
Question 4. In your testimony, you explained that your January 27,
2022, voluntary recusal regarding issues on retransmission consent and
copyright broadcast issues was narrow, and would have no impact on your
ability to work on important issues facing the Federal Communications
Commission. Can you please describe the proceedings you will be able to
participate in as a Commissioner despite your voluntary recusal?
Answer. I will be able to participate in the major proceedings
before the Commission. Here is a list of just some of the critical
proceedings in which I will be able to participate, some of which are
mandated by the Infrastructure Investment and Jobs Act (IIJA):
Implementation and oversight of the $14.2 billion Affordable
Connectivity Program authorized by the IIJA;
Adoption of the report on the impact of the IIJA on the
universal service fund and any proceedings stemming from the
recommendations in that report, including any effort to reform
universal service contributions;
The current network resiliency proceeding;
The digital discrimination proceeding required by the IIJA;
The current proceeding seeking to strengthen the FCC's data
breach rules;
Any proceeding to restore the FCC's authority over broadband
and/or adopt new network neutrality rules;
Any proceeding addressing robocalls/call spoofing and
enforcement of the Telephone Consumer Protection Act;
The current proceeding re-evaluating the FCC's decision on
24 GHz emissions;
Any proceeding examining broadcast ownership and media
diversity, including the 2018 Quadrennial review (a
Congressionally mandated proceeding every four years to see
which media ownership rules are in the public interest);
Oversight of mergers and transfers of control in every
industry the FCC regulates;
Any proceeding impacting the Video Relay Service (VRS);
Any proceeding involving unlicensed and licensed spectrum;
RDOF II or any proceeding to consider reallocating those
funds;
Any future mobility fund proceeding;
Any proceeding to modernize Lifeline, E-Rate or the Rural
Health Care Fund;
The current proceeding to target and eliminate unlawful text
messages;
The current proceeding on whether delivering a message
directly to a consumers' voice-mail is in violation of the
Telephone Consumer Protection Act of 1991.
Question 5. You explained in your testimony that the parties in
American Broadcasting Cos. Inc. et al v. David R. Goodfriend and Sports
Fans Coalition NY, Inc. settled this matter for approximately $700,000
plus the physical assets of Sports Fan Coalition, even though the text
of the Stipulated Consent Judgment and Permanent Injunction states that
``Plaintiffs are awarded statutory damages under the Copyright Act, 17
U.S.C. Section 101 et seq., against SFCNY in the amount of $32
million.'' Based on your understanding, why did the Stipulated Consent
Judgment and Permanent Injunction reference $32 million despite the
prior settlement agreement between the parties? Did the court ever
order Sports Fans Coalition New York to make a monetary award to the
plaintiffs in this case?
Answer. The court never ordered SFCNY to make a monetary award to
the plaintiffs, and it never ruled on liability or damages. The
reference to $32 million in the Stipulated Consent Judgment was an
estimate of the maximum amount of statutory damages that Plaintiffs
could seek if the case went to trial. SFCNY and Goodfriend vigorously
contested that statutory damages were appropriate and argued that their
service actually conferred a benefit on the networks by boosting their
signals to people in the networks' intended audience. It was language
insisted upon by the Plaintiffs to deter anybody who might consider
starting another service similar to Locast. The Defendants agreed even
though Defendants believed they could show that Plaintiffs were
entitled to zero damages at trial. As you note, the parties had already
agreed to settle the matter for what was left in SFCNY's bank account
plus SFCNY's physical assets, so there was never any question about
whether SFCNY was going to pay $32 million.
The parties believed, and at the time had reason to believe, that
the confidential settlement agreement would remain confidential and
that the much smaller payment from SFCNY to the Plaintiffs would not be
public.
Question 6. Based on your knowledge of Sports Fans Coalition's
financial situation, did the nonprofit organization have $32 million in
assets from which it could satisfy a possible judgment for that amount
in American Broadcasting Cos. Inc. et al v. David R. Goodfriend and
Sports Fans Coalition NY, Inc.?
Answer. No, and it's important to note that Judge Stanton never
ruled on liability or damages, because the case narrowing agreement
only called for the court to decide the matter of whether Locast was
eligible for the statutory exemption from copyright law under 17 U.S.C.
Sec. 111(a)(5).
Question 7. Based on your knowledge of Sports Fans Coalition's
financial situation, did Sports Fans Coalition's agreement to settle
the lawsuit for around $700,000 in cash and the transfer of its
equipment represent all or nearly all of the nonprofit organization's
assets?
Answer. Yes, but it is important to note the SFCNY did not commit
to pay $700,000 and Plaintiffs did not insist that SFCNY pay $700,000.
The settlement was for whatever was left in SFCNY's bank account after
it paid its vendors and landlords. If that amount was at least
$700,000, then Plaintiffs would make a public filing that the monetary
judgment had been satisfied. SFCNY did pay $700,000, and on February
11, 2022, Plaintiffs did file the Certification that the judgment had
been satisfied.
Question 8. On October 21, 2021, the Federal Trade Commission (FTC)
released a report that examined the privacy practices of Internet
Service Providers. The report went into great detail on a number of
concerning trends related to the collection and use of consumer data,
which included ISPs amassing large databases of sensitive data that
could be used to create detailed consumer profiles. The examination of
these privacy practices led the FTC to conclude that ISP are collecting
more data than ever before, without fully explaining why and how they
use the data, and that such collection could lead to consumer harm.
These conclusions highlight that many of the ISPs' data collection
and use practices may mirror problems identified in other industries
and underscore the importance of restricting data collection and use.
Do you believe that ISPs' data collection and use practices are
dangerous for consumers? If so, how should the FCC and FTC consider
reigning them in?
Answer. I am very concerned that ISP data collection and use
practices may be violating consumers privacy, which can lead to social,
financial, and sometimes even physical harm. As I discussed in my
previous QFRs, the FTC's Section 5 authority to reign in these
practices is limited to those that are ``unfair or deceptive.'' The
agency has interpreted that authority to apply only to those occasions
where the ISP either promises to engage (or not engage) in a certain
behavior but does it anyway, or whether it has failed to tell a
consumer that it will engage in certain behavior. In other words, if an
ISP reserves the right collect data, keep it indefinitely and sell it
to or share it with whomever it would like, the FTC would likely find
that it cannot regulate that behavior.
The FCC can do little to reign in ISPs privacy practices unless and
until it reinstates its authority over broadband by reclassifying it as
a telecommunications service under Title II of the Communications Act.
If it does so, then it can either just use the plain language of
Section 222 of the Communications Act to enforce pro-consumer privacy
practices, or it can adopt new rules that require ISPs to protect their
customers' privacy. The only constraint on those rules is that they
cannot be ``substantially similar'' to the 2016 FCC broadband privacy
rules that Congress repealed in 2017 pursuant to the Congressional
Review Act. New rules can be different however, and can be stronger
than those adopted in 2016.
Recusal. In your testimony, you mentioned that there was precedent
for the voluntary recusal you entered into regarding retransmission
consent and television broadcast copyright issues.
Question 1. Based on your knowledge, are you aware of other
nominees that have voluntary recused themselves from certain matters or
made other voluntary commitments outside of their ethics agreement? If
so, please provide your understanding on the decisions of other
nominees to voluntarily recuse themselves during the confirmation
process.
Answer. I know of at least 5 nominees who have either voluntarily
recused themselves from certain matters or have made other voluntary
commitments outside of their ethics agreements. They include:
Robert Califf, recently confirmed by the Senate, but then
President Biden's nominee for FDA Commissioner, agreed to
recuse himself from matters involving his former employers and
clients for four years, two years longer than what is required
in the Biden-Harris administration's Ethics Pledge. Dr. Califf
indicated he did not intend to seek a waiver from his recusals.
He also agreed not to seek employment with or compensation
from, including as a result of board service, any
pharmaceutical or medical device company that he interacts with
during his tenure as FDA Commissioner and for four years after
completing his government service. He did so at the request of
Senator Elizabeth Warren in order to win her vote.
In 2014, Ronald Walter and Virginia Lodge, two nominees for
the Tennessee Valley Authority (TVA) Board were confirmed by
the Senate the day after they promised in a letter to TVA's
ethics officer to recuse themselves from any board matters
involving real-estate developer Franklin Haney. Their letter
was in response to concerns raised by Sen. Corker about Mr.
Haney's influence on the nominations process.
As reported in the New York Times on February 9, 2022, Fed
governor nominees Lisa D. Cook and Phillip N. Jefferson and
nominee for Vice Chair for Supervision Sarah Bloom Raskin have
all agreed not to seek employment in the financial services
industry for four years after leaving office at the behest of
Senator Warren. These commitments go beyond any required by law
or the ethics rules.
Question 2. In your testimony, you described how FCC Chairman Bill
Kennard's voluntary recusal provided precedent for your decision to
recuse yourself as outlined in your January 27, 2022, letter. Please
explain how Chairman Kennard's precedential decision to recuse himself
is similar to this situation and your decision to voluntarily recuse
yourself.
Answer. Chairman Kennard's voluntary recusal is almost identical to
my own, other than his came when he was already the sitting Chair. In
1983, he was working as an intern for the National Association of
Broadcasters when he personally signed a Petition for Rulemaking asking
the FCC to repeal the Commission's Personal Attack and Political
Editorial rules, which derived from the fairness doctrine. In 1987, the
FCC repealed the underlying fairness doctrine, but left the Personal
Attack and Political Editorial rules in place.
The question of whether the two remaining rules should be repealed
came before the FCC again in 1998, after the Radio-Television News
Directors asked the U.S. Court of Appeals for the District of Columbia
Circuit to force the agency to do so. The agency agreed to consider the
matter. It was at that point that Chairman Kennard voluntarily recused
himself from participating in the matter.
Like Chairman Kennard, I personally signed a Petition for
Rulemaking seeking changes to a specific set of rules. Like Chairman
Kennard, I voluntarily recused myself from the docket that emanated
from that Petition, although I have gone even a little farther and
voluntarily recused myself from other retransmission consent and
broadcast copyright issues for the first three years of my term. Like
Chairman Kennard's recusal, mine was not required by law or rules, but
was undertaken ``out of an abundance of caution'' (Chairman Kennard's
words) and ``to avoid any appearance of impropriety'' (my words).
______
Response to Written Questions Submitted by Hon. Kyrsten Sinema to
Gigi B. Sohn
Recusal. In January 2021, you pledged to voluntarily recuse
yourself on Federal Communications Commission matters pertaining to
retransmission consent and television broadcast copyright for three
years.
Question 1. Why do you feel this temporary recusal is appropriate
and necessary?
Answer. After the December 1 hearing and reading through the QFRs
from Committee members, and after conferring with Committee staff and
my outside advisors, I decided that the best way forward was to craft a
very limited and narrow recusal, based on precedent, in an effort to
assuage concerns about my participation on the Sports Fans Coalition
NY, Inc. (SFCNY) Board.
Question 2. Will this recusal negatively impact the Commission's
ability to regulate in this industry?
Answer. I do not believe that the recusal will negatively impact
the Commission's ability to regulate the broadcast industry. The
Commission has taken no action in the 12-year-old docket from which I
recused myself since 2014. Retransmission consent disputes only very
rarely reach the full Commission, and in those rare instances when they
do, they are decided unanimously.
Since copyright is outside the FCC's jurisdiction, it is even more
rare that television broadcast copyright is ever ``material'' to an FCC
proceeding, and my recusal only affects those proceedings where
television broadcast copyright is material.
Question 3. In light of this recusal, why do you feel additional
recusals are not warranted for other industries?
Answer. The recusal, which was crafted to address one specific
concern by a number of members of the Committee, is limited in scope
only to those issues at the nexus of my involvement in Locast and my
personal participation in a 12-year-old Petition for Rulemaking seeking
changes to the retransmission consent regime.
I didn't have to recuse myself--ethics officials have looked at all
of the SFCNY documents and found that I required no additional recusals
beyond what is in my ethics agreement.
I relied upon precedent involving former Chairman Kennard, who
voluntarily recused himself from a fairness doctrine related docket
because he had signed a Petition for Rulemaking as an NAB intern many
years before. I had signed a Petition for Rulemaking seeking changes to
the retransmission consent regime, and the docket remains open, so I
have voluntarily offered to recuse myself for a limited period from
issues emanating from that petition.
There is no similar rationale for wide ranging recusals not
tethered to anything and without precedent. Those who are seeking such
recusals are effectively saying that I should be recused from
everything and anything I've ever advocated for or against. Imagine the
implications of that--anyone, whether they be in private practice,
working for a corporation, an academic or a public interest advocate,
would have to recuse themselves from any matter on which they've taken
a public position on, whether or not they were representing specific
clients. The result would be an FCC populated by members with no
background in communications law and policy. I don't believe that is a
result that anybody wants.
______
Response to Written Question Submitted by Hon. Raphael Warnock to
Gigi B. Sohn
Broadband Deployment. With the passage of the Bipartisan
Infrastructure Law, the Federal government is gearing up to make
transformational investments in broadband deployment.
Question. Will you commit to working with me and my staff to
connect every Georgian to accessible and affordable broadband services?
Answer. Yes.
______
Response to Written Questions Submitted by Hon. Roger Wicker to
Gigi B. Sohn
Question 1. Were you advised by anyone in the White House or on
this committee (including both members and staff) to sign the Locast
settlement agreement immediately after the White House announced the
President's intent to nominate you to be an FCC Commissioner?
Answer. No.
Question 2. Did you report to the White House or any member of this
committee (including staff) that you had signed the Locast settlement
agreement?
Answer. No.
Question 3. At any point did you discuss the pending Locast
settlement agreement in your interviews with the White House prior to
being nominated? If not, why not? If yes, what was discussed? Were you
provided any counsel from the FCC or the Office of Government Ethics
(OGE) on how to proceed on the Locast matter?
Answer. I did not discuss the settlement agreement with the White
House prior to being nominated because my interviews with the White
House ended around June 2021, long before the district court made its
decision in the Locast litigation and therefore long before settlement
in the matter was contemplated. I also did not confer with the FCC or
OGE on how to proceed on the Locast matter.
Question 4. At any point in time was there a discussion with OGE
about waiting to finalize your ethics agreement before the Locast
settlement agreement was signed? If yes, why was it decided that your
ethics agreement could be finalized before the settlement agreement was
signed?
Answer. No.
Question 5. After your first nomination hearing, I asked you in a
question for the record: ``Where did the money come from for the
payment of the $32 million settlement in connection with the Locast
case? You responded: ``[t]he settlement funds come from amounts
collected to fund SFCNY operations after SFCNY pays its vendors.'' You
testified that the Locast settlement agreement barred you from writing
about its contents. You could have informed the committee of this
perceived legal constraint, but you chose not to and instead wrote
something misleading.
1. Why did you not offer to discuss verbally the terms of the
settlement with members of the committee in order to clear up
any misunderstanding on this very important issue?
2. Should the committee be concerned about the lack of candor in
your response?
Answer. I answered your question for the record truthfully and
within the constraints of the confidentiality provisions of the
settlement agreement--the Locast settlement was to turn over all used
equipment and any money left after SFCNY pays its vendors, and all of
that money came from amounts collected to fund SFCNY operations. In
those same questions for the record, I offered that the Committee
obtain a copy of the settlement agreement from the parties, which
reveals the amount of money that the two parties agreed that SFCNY
should pay the networks and describes the legal constraints.
I would have been happy to meet with any member of the Committee to
discuss the settlement agreement on a confidential basis and have
offered several meetings to many members of this Committee.
Question 6. At any point during the settlement negotiations did you
consider resigning your position from the board of Sports Fans
Coalition? If not, why not?
Answer. No, because that would have been a dereliction of my duty
as a board member to see the settlement and winding down of the
organization to its conclusion.
Question 7. White House officials have stated that you do not need
to recuse yourself from any issues, if confirmed. When did you decide
to recuse yourself from the FCC docket referenced in your January 27th
letter to the commission?
Answer. I made a final decision to recuse myself on January 24, but
I had been thinking about it on and off since after I submitted my
first set of questions for the record on December 8, 2021.
Question 8. Did anyone at the White House or did any members or
staff on this committee advise or encourage you to develop a recusal
proposal or assist you in developing the recusal? If so, who and when?
Answer. Nobody at the White House advised or encouraged me to
develop a recusal proposal or assisted me in developing the recusal. I
discussed the recusal and its parameters with Committee staff and they
were supportive.
Question 9. When did you begin to consider recusing yourself from
certain FCC proceedings? Who came up with the idea? Please describe the
process for developing the recusal, including your discussions with the
White House and committee staff.
Answer. After hearing and seeing the concern of members of the
Committee about my involvement with Locast at both the December 1
hearing and in the December 8 questions for the record, I first
considered a narrow recusal. No one person came up with the idea--
several times since December 8, I had discussions with my outside
advisors and Committee staff about what the scope might be, what
precedent there was, and whether there might be unintended consequences
for me recusing myself.
Question 10. Did you have any discussions with the White House, or
members, or staff of this committee about the contours and scope of
your proposed recusal before formally submitting your letter on January
27th? If yes, what feedback was provided to you?
Answer. I informed the White House of my plan to recuse myself
voluntarily shortly before formally submitting the letter, but other
than describing the proposal, I did not discuss it with the White
House. As discussed above, I did confer with Committee staff about the
scope of the proposal, precedent to support it and whether there might
be unintended consequences.
Committee staff gave me positive feedback on my proposal.
Question 11. Did the White House sign-off or approve of your
recusal before you submitted it to the committee last month?
Answer. The decision to recuse was mine alone.
Question 12. Were any commitments made from Members of Congress or
third-parties to support you publicly if you recused yourself from
certain issues?
Answer. No.
Question 13. Why shouldn't the companies that you have publicly
disparaged have concerns working with you as a commissioner at the FCC,
if you are confirmed?
Answer. If I am confirmed, as a member of an independent agency, I
am bound by the law to decide matters based upon and supported by the
record of a particular proceeding. If the FCC makes a decision that is
not supported by the record of a particular proceeding, it is likely to
be reversed by the Federal courts of appeal.
Question 14. A number of members discussed net neutrality during
the hearing, and you reiterated your support for Congressional action
on this topic. Would you support legislation that requires net
neutrality principles (no blocking, throttling, paid prioritization,
zero rating), without reclassifying broadband Internet access service?
If not, please explain why not.
Answer. I cannot make a judgment on proposed legislation without
seeing the entire text. That being said, I would support legislation
that (1) gives the FCC proper authority to oversee the broadband market
and (2) either gives the FCC specific authority to adopt net neutrality
rules itself or requires ISPs to abide by net neutrality rules.
Question 15. On January 3rd and on January 18th a White House
spokesperson described ethics concerns surrounding your nomination as
``meritless.'' On January 27th you recused yourself from any matter
where retransmission consent or broadcast copyright is dispositive. Was
the White House wrong to describe ethical concerns as meritless given
the need you expressed in your January 27th letter to recuse from these
matters to avoid an appearance of impropriety? If they were not wrong
to dismiss these questions as meritless, why must you recuse from these
proceedings?
Answer. As government ethics officials had already determined, my
involvement with Locast and the resulting settlement agreement raised
no ethical concerns and required no additional recusals. As I testified
on February 9, I voluntarily recused myself from a narrow set of issues
to address the concerns of a number of members of this Committee about
my involvement with Locast, not because of any ethical concerns.
Question 16. In your January 27, 2022, letter to the FCC, you
voluntarily recuse yourself from matters specifically involving FCC
Docket 10-71, and ``any other matter where retransmission consent or
television broadcast copyright is a material issue.'' No mention was
made of Locastor NY Sports Fans Coalition, Inc., in your January 27,
2022 letter. However, during your testimony before the committee on
February 9, 2022, you repeatedly stated that your voluntary recusal
letter was due to the ``nexus'' of your March 9, 2010, petition and the
Locast issue.
1. Please explain to the committee the apparent disparity for why a
recusal (or any other restriction in lieu of recusal) was
required during your tenure as FCC staff, years before Locast
was conceived.
2. Please explain the disparity between your January 27, 2022,
voluntary recusal which did not reference Locast, and your
testimony of February 9, 2022, in which you firmly linked the
retransmission consent policy with the Locast settlement.
Answer. According to the FCC Office of General Counsel, I was not
recused from participating in FCC Docket 10-71 when I was a staff
member at the FCC. The National Association of Broadcasters was
mistaken in asserting that I was recused from that docket at the time.
As I testified on February 9, it would have been the better course
for me to have referenced explicitly the Locast litigation in my
January 27 letter and I regret not doing so. I decided instead to
reference only prior FCC precedent where Chairman Kennard voluntarily
recused himself from a matter that he had personally participated in
years earlier. However, given the steady and vocal concern from members
of this Committee about my involvement in Locast and the focus of the
recusal on retransmission consent and TV broadcast copyright, it is
readily apparent that the recusal was tied to the Locast matter.
Question 17. Would you withdraw your voluntary recusal if Senator
Cantwell requests that you do so?
Answer. I have no intention to withdraw my voluntary recusal.
Question 18. Do you believe Senator Cantwell should request that
you withdraw your voluntary recusal? Yes or no?
Answer. I have no intention to withdraw my voluntary recusal.
Question 19. Public Knowledge, an organization you founded and led
for more than a decade, released a statement on February 2nd calling
this hearing ``pointless'' and ``senseless.'' Did you have any
communications with any employees at Public Knowledge regarding that
statement?
Answer. No.
Question 20. Do you believe the February 9th hearing to further
consider your nomination was warranted?
1. Was there a legitimate reason for Senator Cantwell to call for
this hearing, yes or no?
2. If yes, could you please share at least one reason why you think
this hearing was necessary?
Answer. I defer to the judgment of the Chair on what is necessary.
Question 21. Public Knowledge, in the same statement referenced in
question 19, urged Commerce Committee members to call on Chair Cantwell
to request you withdraw your recusal letter. Have you coordinated in
any way with Public Knowledge to pressure Chair Cantwell to request you
withdraw your recusal?
Answer. No.
Question 22. Fight for the Future, a group you have financially
supported and publicly praised, called for Senator Schumer to remove
Senator Cantwell from her position as Chair of this committee because
she held the February 9th hearing on your nomination. Do you believe
that Senator Cantwell should be removed from her position as Chair of
this committee?
1. Fight for the Future's statement was signed by Evan Greer who you
have worked with and praised. Did you have any communication
with Evan Greer or any other staff at Fight for the Future
about its request that Senator Cantwell be removed from her
position as Chair of this committee?
Answer. No, I do not believe that Senator Cantwell should be
removed from her position as Chair of this Committee and I had no
communication with Evan Greer or any other staff at Fight for the
Future about this request.
Question 23. Free Press, an organization you have financially
supported and publicly praised, cited ``the White House's indecision
and delays'' in announcing your nomination as a reason why the FCC does
not have a full complement of commissioners. Why do you think it took
so long for the White House to nominate you to this position? When did
you first learn you were under consideration for this nomination?
Answer. My vetting and pre-approval process was completed by the
end of June 2021. From that time until the day I was nominated, I did
not know with certainty if, when, and for what position I would be
nominated.
Question 24. You signed your first financial disclosure on May 21,
2021, but President Biden did not announce his intent to nominate you
to the FCC until October 26, 2021. Clearly you were preparing to be
nominated to serve at the FCC. Were you told why there was a five month
delay between when you completed your financial paperwork in
anticipation of your nomination and when President Biden announced his
intent to nominate you to serve as commissioner?
Answer. I was not told why there was a five-month delay between
when I completed my financial paperwork and when President Biden
announced his intent to nominate me. I had no idea if, when, and for
what position I would be nominated until less than 24 hours before I
was nominated.
Question 25. Former Commissioner Rob McDowell's Ethics Agreement
required him to recuse from a merger proceeding involving AT&T and Bell
South. Then-Chairman Kevin Martin asked the FCC's General Counsel to
determine whether ``the Government's interest would be served'' by
Commissioner McDowell participating in the proceedings.\1\ Should
Chairwoman Rosenworcel direct the FCC's General Counsel to determine
whether the government is best served by you participating in
proceedings where either retransmission consent or broadcast copyright
issues are dispositive?
---------------------------------------------------------------------------
\1\ Letter from Kevin J. Martin, Chairman, FCC, to Congressional
Leaders (dated Dec. 1, 2006).
---------------------------------------------------------------------------
Answer. I would not be opposed to Chairwoman Rosenworcel making
such a request if she believed that the government's interest is best
served by my participation.
Question 26. In former Commissioner McDowell's case, the FCC's
General Counsel found the government's interest in the merger
proceeding outweighed the appearance of a conflict of interest and
authorized him to participate in the proceeding. However, an
authorization to participate from the General Counsel does not require
a Commissioner to participate in the proceeding. Commissioner McDowell
ultimately decided to continue to abide by his Ethics Agreement and
recuse from the proceeding to preserve the public's trust in the
impartiality of the decision the FCC reached in the matter. If the
General Counsel authorizes you to participate in proceedings where
either retransmission consent or broadcast copyright is dispositive,
would you violate the terms or you voluntary recusal to do so?
Answer. I cannot comment on hypotheticals. Such a determination
would depend on the particular proceeding in question, the status of
the proceeding, and the General Counsel's rationale for authorizing me
to participate in the proceeding. However, I will note that Chairman
Kennard was not accused of violating the terms of his voluntary recusal
from a fairness doctrine-related docket when the General Counsel
authorized him to participate in that docket.
Question 27. Will you commit to abiding by the terms of your
voluntary recusal, even if the General Counsel authorizes you to
participate in a proceeding?
Answer. As noted above, I cannot comment on hypotheticals. My
decision would depend on the particular proceeding in question, the
status of the proceeding, and the General Counsel's rationale for
authorizing me to participate in the proceeding. However, I will note
that Chairman Kennard participated in the docket from which he
voluntarily recused after the General Counsel authorized him to
participate in that docket.
Question 28. On December 18, 2006, you praised former Commissioner
McDowell for recusing from the proceeding, saying the proceeding was
too important to be ``clouded by the ethical questions that would have
come up had the Commissioner taken part in the proceeding.'' If you
withdrew your voluntary recusal to participate in a proceeding where
either retransmission consent or broadcast copyright is dispositive,
even with the authorization of the FCC's General Counsel, would your
decision in the proceeding inevitably be clouded by ethical questions?
Answer. As noted above, I cannot comment on hypotheticals. My
decision would depend on the particular proceeding in question, the
status of the proceeding, and the General Counsel's rationale for
authorizing me to participate in the proceeding. However, I will note
that Chairman Kennard participated in the docket from which he
voluntarily recused after the General Counsel authorized him to
participate in that docket.
Question 29. Fight for the Future, an organization you have
financially supported and publicly praised, placed a billboard in
Phoenix, Arizona calling Senator Sinema corrupt because of her stance
on net neutrality.
1. Do you believe Senator Sinema is corrupt? Yes or no?
2. Do you think it was appropriate for Fight for the Future to place
a billboard claiming that Senator Sinema is corrupt in Phoenix,
Arizona? Yes or no?
Answer. No, I do not believe that Senator Sinema is corrupt and no,
I did not agree with Fight for the Future's tactics in this instance.
Question 30. Fight for the Future, an organization you have
financially supported and publicly praised, described Senator Peters'
vote to confirm Ajit Pai to be FCC Chairman as ``disgusting.'' Do you
agree with Fight for the Future that Senator Peters' vote to confirm
former Chairman Pai was disgusting?
Answer. No, I do not agree.
Question 31. Fight for the Future, an organization you have
financially supported and publicly praised, described Senator Manchin's
vote to confirm Ajit Pai to be FCC Chairman as ``disgusting.'' Do you
agree with Fight for the Future that Senator Manchin's vote to confirm
former Chairman Pai was disgusting?
Answer. No, I do not agree.
Question 32. Fight for the Future also solicited funds to place a
billboard in West Virginia implying that Senator Joe Manchin's vote to
confirm Former Chairman Pai was bought by the telecommunications
industry.
1. Did you donate to this crowdfunding campaign?
2. Do you believe that Senator Manchin voted to confirm Former
Chairman Pai because of campaign donations? Yes or no?
Answer. No, I did not donate to this crowdfunding campaign. I have
no opinion as to why Senator Manchin voted to confirm former Chairman
Pai.
Question 33. On August 26, 2020, you tweeted in part ``the only
thing protecting our Republic is the Ds taking over the Senate.'' Which
Republicans on this committee do you think are a threat to this
country?
Answer. I was not referring to any particular member of this
Committee in this tweet.
Question 34. On April 2, 2018, you tweeted ``Sinclair is forcing
its news anchors 2 repeat the same anti-media script. This alone is
reason enough 4 @FCC & @TheJusticeDept 2 block its merger w Tribune.''
Do you plan to vote against any broadcast license transfer to Sinclair
for this reason?
1. How can the committee believe you would be an impartial
commissioner, if confirmed, in light of the tweet referenced
above?
Answer. I cannot pre-judge any particular matter on which I might
vote if I am confirmed. If I am confirmed, as a member of an
independent agency, I am bound by the law to decide matters based upon
and supported by the record of a particular proceeding. My prior
statements about any company or any issue are irrelevant. If the FCC
makes a decision that is not supported by the record of a particular
proceeding, it is likely to be reversed by the Federal courts of
appeal.
Question 35. On May 18, 2017, you tweeted ``[t]he $$$$ cable &
Internet cos give to MoC is sometimes too great & they side against
good policy & common sense. Largely problem w. R MoCs.'' Which members
of this committee do you believe side against ``good policy & common
sense'' because of campaign donations?
Answer. I was not referring to any particular member of this
Committee in this tweet.
Question 36. On March 27, 2020, you tweeted that you heard ``from a
Hill staffer that Senate Rs didn't want 2 ``turbocharge'' subsidy
programs like #ERate & #Lifeline, even if for a limited time. How sad
that their ideology has overtaken their duty 2 serve their
constituents.'' Which members of this committee do you believe have
allowed their ideology to overtake their duty to serve their
constituents?
Answer. I was not referring to any particular member of this
Committee in this tweet.
Question 37. You have argued on Twitter multiple times (Oct. 28,
2020, Nov. 6, 2020, Dec. 9, 2019) that Fox News is destroying
democracy. Do you believe that tens of millions of Americans who watch
Fox News are complicit in destroying democracy?
Answer. No. I have friends and family who watch Fox News and I
watch it on occasion. I have appeared on the network as a guest several
times.
Question 38. What part of your job as a public interest advocate
requires you to argue that Fox News is destroying democracy?
Answer. As I testified at both my hearings, my tweets about Fox
News were made as part of a series of discussions around hearings
concerning big tech platforms and their role and responsibility to
moderate content on those platforms, including political misinformation
and disinformation. I was arguing that if Congress wanted to get the
full picture of the impact of misinformation on our democracy, it
should also look at misinformation on mainstream media.
Question 39. In your testimony, you admitted that, in light of the
grave concerns of many members of this committee, it may take until
April or later for you to be confirmed as the fifth FCC Commissioner.
Meanwhile, there are numerous other qualified candidates who need not
recuse themselves on any matter and who have not recently signed
settlements absolving them from liability owed to the very industry
players they are set to regulate. In light of this, and the alleged
``deadlock'' occurring at the FCC, why should you still be considered
for this position?
Why wouldn't the American people be better served by a less
polarizing fifth FCC Commissioner who need not recuse herself on any
matter and who could actually be approved on a quicker, bipartisan
basis?
Answer. I was asked at the hearing when I thought I might be
confirmed. I answered conservatively based not ``in light of grave
concerns of . . . members of this committee,'' but because of the
uncertainty around Senator Lujan's return.
I would note that many nominees for the FCC have had to recuse
themselves from certain proceedings by law because they either worked
for regulatees, represented them as clients, or served on their boards.
Any nominee that has a family member with a financial interest in a
regulatee also has to recuse themselves from proceedings involving that
regulatee. I should not be held to a different standard than nominees
who have worked for or represented regulatees.
I should be considered for this position for the same reason that
President Biden nominated me, and as even my most fervent opponents
admit--I am extremely well-qualified to be an FCC Commissioner. The
American people would be well-served by a Commissioner who has spent
her entire career working to ensure that everyone has access to
affordable and robust communications networks.
Question 40. During your testimony, in response to Senator Scott
you stated: ``I have praised Republicans on Twitter . . . I have
criticized Democrats--I can list those for you if you'd like in the
QFRs. Have I generally criticized Republicans more than Democrats?
Praised Democrats more than Republicans? Probably. Given who I am
that's not a surprise. But it's not a one-way street, so I want to make
that very, very clear.''
1. Taking you up on your offer, please list each instance in which
you have publicly (e.g., over Twitter, in writing, interviews,
speeches, etc.) criticized Democrats.
2. Please quantify how many times in the past five years that you
have publicly praised Republican elected officials versus
praised Democrats.
3. Please quantify how many times in the past five years you have
publicly criticized Republicans elected officials versus
criticized Democrats.
4. Please identify with specificity any Democrats you criticized and
any Republicans you praised during the past five years.
Answer. See Attachment A.
______
Response to Written Questions Submitted by Hon. John Thune to
Gigi B. Sohn
Question 1. Can you describe in greater detail your role in the
Locast settlement? Specifically, what was your involvement in the
discussions that reduced the $32 million settlement to $700,000?
Answer. As a member of the Board of Directors of Sports Fans
Coalition, NY, Inc., I voted to authorize the organization's lawyers to
try to settle the litigation rather than appeal. I played no role in
discussing, developing, or negotiating particulars of the
organization's settlement, including the payment.
Question 2. With respect to your January 27th recusal, you have
taken the position that the recusal is not required or mandated by
ethics of conflict of interest laws, but rather it is a ``voluntary
recusal.'' Is that correct?
Answer. Yes.
Question 3. With whom did you discuss your January 27th recusal
letter before submitting to the FCC General Counsel? Did you share a
copy of the letter with anyone in advance of submitting it to the FCC?
Answer. I conferred with several of my outside advisors and
Committee staff about the scope, precedent, and possible unintended
consequences of a recusal prior to submitting it to the FCC General
Counsel. I did not share a copy of the letter with anyone in advance of
submitting it to the FCC.
Question 4. During the hearing, I asked you if there were any
commitments made to support you publicly if you recused yourself from
certain issues. In your response you said, ``I don't think I've gotten
anything other than a lot of heartache . . . NAB is not supporting me,
right, they are neutral which is what they were before.'' However, on
January 27, the same day you pledged to recuse yourself from certain
matters before the FCC, NAB President Curtis LeGeyt issued a statement
saying, ``Sohn's recusal agreement resolves the concerns NAB raised
regarding her nomination. 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
and are eager to work with her and the full complement of commissioners
in the very near future.''
1. Do you believe it was misleading to suggest NAB remains in the
same place on your nomination as they were prior to your
recusal?
2. Did you, your advisors, or anyone else involved in your
nomination discuss any aspect of your recusal with NAB prior to
you sending the letter to the FCC Office of General Counsel? If
so, who did and when?
Answer. I did not mislead the Committee. I testified that prior to
my recusal, NAB did not support my nomination, which was a true
statement. The same is true today--NAB does not support my nomination.
I am not aware whether anyone involved in my nomination discussed
any aspect of my recusal with NAB prior to my sending the letter to the
FCC Office of General Counsel.
Question 5. What steps should the FCC take to prevent waste, fraud,
and abuse in the Affordable Connectivity Program?
Answer. I support the recent Commission action to implement the
Affordable Connectivity Program (A), including the provisions designed
to help prevent waste, fraud, and abuse in the program. I supported the
Congressional decision to require use of the National Verifier in the
ACP's predecessor program, and agree with using the National Verifier
for the ACP. Ensuring that the states provide the necessary data to
complete the National Verifier and that consumers can easily use the
Verifier in order to take advantage of the ACP and other USF programs
is essential. I also agree that the Commission should take all
necessary steps to prevent waste, fraud, and abuse in the program.
Question 6. What steps should the FCC take to prevent waste, fraud,
and abuse in the E-Rate Program?
Answer. I support the 2020 GAO recommendations that outline steps
the Commission should take to better manage the fraud risk in the E-
Rate Program. I also support the continued efforts of the FCC's Office
of Inspector General to conduct its audits of the USF programs and to
investigate instances of waste, fraud, and abuse in the E-Rate program.
Question 7. What specific steps should the FCC take to better
coordinate with other Federal agencies on spectrum issues?
Answer. I believe that Chairwoman Rosenworcel is doing an excellent
job in improving the coordination between the FCC and other Federal
agencies. I wholly support her recent announcement of the Spectrum
Coordination Initiative with NTIA.
Question 8. Do you support government-funded competition of
broadband networks?
Answer. If you are asking whether I support the ability of a
community to choose to build its own broadband network, the answer is
yes. As noted in my previous questions for the record, I support
community broadband networks because they foster competition and
choice, two core values that have guided my career.
The real-world evidence in favor of community broadband is
compelling. Community built and run networks have connected unserved
rural communities, driven down incumbent prices, and created jobs. For
example, a recent study found that Chattanooga's municipal network
generated $2.69 billion in economic activity and created 9,516 jobs
over the past decade.\2\ Moreover, my advocacy for community broadband
is rooted in the belief that local governments should have the option
to invest in their own broadband infrastructure if they so choose.
---------------------------------------------------------------------------
\2\ See Bento J. Lobo, Ph.D., CFA, Ten Years of Fiber Optic and
Smart Grid Infrastructure in Hamilton County, Tennessee (August 31,
2020) (https://assets.epb.com/media/Lobo%20-%20
Ten%20Years%20of%20Fiber%20Infrastructure%20in%20Hamilton%20County%20TN_
Published
.pdf).
Question 9. In addition to the FCC's programs aimed at closing the
digital divide, NTIA, USDA, and the Department of Treasury are
disbursing funds to support the buildout of broadband networks. How
would you characterize the coordination between the FCC, NTIA, and USDA
given that they all have programs that support broadband?
Answer. I am not privy to the coordination efforts between the
various Federal entities who are currently working to disburse funding
for broadband networks. But I do believe that it is essential for these
entities to work in close coordination to ensure that the money is
being spent appropriately and accordance with the law. At least with
the Infrastructure Investment and Jobs Act (IIJA), Congress rightly
required that money is not spent until the FCC completes its maps and
requires the FCC to coordinate with NTIA. If confirmed, I plan to offer
my assistance in this area.
Question 10. Are you concerned that programs administered by NTIA,
Treasury, and RUS are going to overbuild FCC-funded locations?
Answer. As I have noted many times in both hearings and the
previous QFRs, I support the Infrastructure Investment and Jobs Act
(IIJA) as it requires that the states receiving funding from NTIA to
first fund connectivity in unserved areas and then and only then, in
underserved areas. I understand that USDA's ReConnect program rules
also require that 90 percent of the households in the proposed funded
service area must lack sufficient broadband service. I know that you
have concerns with the Treasury Department's final rules, but to the
extent there will be any overbuilding, it will be in places where there
is some connectivity but it is not robust enough for applications like
telehealth, precision farming and other high bandwidth applications.
Question 11. You have on multiple occasions expressed your clear
disdain for conservative news outlets, including Fox News. In a
September, 2019 tweet you tweeted ``I agree that scrutiny of big tech
is essential, as is scrutiny of big telecom, cable & media. And trust
me, the latter have played their own role in destroying democracy &
electing autocrats. Like, say, Fox News?'' In an October 28, 2020
tweet, you stated ``Fox News has had the most negative impact on our
democracy'', and in the same tweet you claimed Fox News is ``state-
sponsored propaganda.''
1. In your opinion, how has ``Fox News had the most negative impact
on our democracy'' and ``played their own role in destroying
democracy?''
2. Do you believe the FCC should consider the editorial decisions of
companies when considering their fitness to hold a license?''
3. In response to my question during the hearing, you suggested we
should not be concerned about your statements regarding Fox
News since it is not a regulatee of the FCC. Is Fox News part
of the Fox Corporation that is a direct regulatee of the FCC as
the ultimate owner of broadcast stations? Please explain your
position further that your criticisms of Fox News should not be
of concern to the Committee.
Answer. As I testified at both my hearings, my tweets about Fox
News were made as part of a series of discussions around hearings
concerning big tech platforms and their role and responsibility to
moderate content on those platforms, including political misinformation
and disinformation. I was arguing that if Congress wanted to get the
full picture of the impact of misinformation on our democracy, it
should also look at misinformation on mainstream media.
I do not believe that the FCC should consider the editorial
decisions of companies when considering their fitness to hold a
license. In fact, the First Amendment and Section 326 of the
Communications Act prohibits the Commission from censoring broadcast
stations or infringing on the right to a free press. Fox News is not a
licensee and is not regulated by the FCC. Whatever my personal opinions
of Fox News might have been, they would have no bearing on any
proceeding involving the Fox TV networks and its owned and operated
stations. In those proceedings, I would be bound by the law to decide
matters based upon and supported by the record of that proceeding. If
the FCC makes a decision that is not supported by the record of a
particular proceeding, it is likely to be reversed by the Federal
courts of appeal.
Question 12. In a 2018 tweet, reacting to a report regarding
supposed Republican bias at Sinclair Broadcast Group, you tweeted
``This, and its lack of candor during the failed merger with Tribune,
calls into question Sinclair's fitness to be a broadcast licensee. Will
@FCC do anything when Sinclair's licenses are up for renewal?'' If
confirmed, do you believe you can review matters involving Sinclair
Broadcasting in a fair and neutral way?
Answer. Yes, I believe that I can review matters involving Sinclair
Broadcasting in a fair and neutral way. Regardless of what I might have
said three years ago about a merger that was blocked by the Trump FCC,
it would have no bearing on any future proceeding involving Sinclair.
In those future proceedings, I would be bound by the law to decide
matters based upon and supported by the record of that proceeding. If
the FCC makes a decision that is not supported by the record of a
particular proceeding, it is likely to be reversed by the Federal
courts of appeal.
Question 13. Preventing illegal robocalls from reaching consumers
continues to be a high priority and Congress made that clear when it
passed the bipartisan TRACED Act. In your view, how is the FCC's
implementation of that law going?
Answer. It is my understanding that the FCC has met all of the
statutory implementation deadlines under the TRACED Act. I believe that
the Commission's work is essential to help combat this continuing
consumer problem and I support the Chairwoman's efforts in this area.
If I am confirmed, I look forward to working with my fellow
Commissioners and the Committee on this issue.
Question 14. It is more difficult to identify trustworthy calls
with certain networks, primarily those without IP technology. What can
the FCC do to help authenticate calls across networks?
Answer. As I understand, the TRACED Act required the Commission to
implement the STIR-SHAKEN call authentication protocol by June 30,
2021, but that Section 4(b)(5)(B) of the TRACED Act required that the
Commission provide non-IP network providers with an extension until a
non-IP network call authentication protocol is developed and
``reasonably available.'' I am not aware of the specific industry
efforts to develop a non-IP network protocol. But if I am confirmed, I
look forward to better understanding the current status of industry
efforts and working with your office on this issue.
Question 15. You have used similarly sharp language when
criticizing the FCC's rural broadband policies--and rural broadband
providers themselves. For example, you stated that the FCC has ``made
it as difficult as possible to give out the poor people's money. And by
the way, those poor people are overwhelmingly people of color. And made
it really easy for broadband companies, rural broadband companies tend
to be monopolies, to basically suck at the government teat to the tune
of tens of billions of dollars.''
Do you stand by your statement that rural broadband companies
``suck at the government teat''?
Answer. I do not recall making such a statement and I cannot find a
reference to where I made such a statement. Regardless, I have been
critical of how the FCC (and other government agencies) have spent
ratepayer dollars on deploying broadband in rural areas. In my last
public speech, made to the Association of Public and Land Grant
Universities on January 28, 2021, I argued that the Federal government
needed: (1) more accurate broadband maps; (2) to engage in more due
diligence in determining whether applicants for government funding had
the technical, operational and financial ability to keep their
promises; (3) to conduct continuing and in-person oversight to ensure
that those who have obtained funding to build broadband networks are
indeed building those promised networks; and (4) to hold accountable
those who have not met their promise to build networks.
Even as I have been critical of how the Federal government has
spent money intended to close the digital divide in rural America, I
have always been supportive of ensuring that rural America has robust
and affordable broadband. That support is evident not only in the
aforementioned speech, but in many interviews I have given to the
press, the assistance that I have given to rural states and
communities, and my work on and ongoing support for both the broadband
provisions of the last COVID-19 relief bill, the American Rescue Plan,
and the IIJA, which provides tens of billions of dollars for states and
tribal communities to deploy broadband.
I will note finally that both NTCA--the Rural Broadband Association
and the Rural Wireless Association support my confirmation.
______
Response to Written Questions Submitted by Hon. Roy Blunt to
Gigi B. Sohn
Question 1. Ms. Sohn, thank you for providing clarification at your
hearing into the justification for your voluntary recusal. Even if you
had explained your recusal differently--on the basis of your Locast
settlement--there remain concerns over its scope. There is an
appearance of bias on your part toward the broadcast networks that
litigated against Locast, not limited to the specific issues you
identified in your voluntary recusal letter. Therefore, many have
expressed concerns over your decision to limit your recusal to such a
narrow set of issues for a limited period of time.
To avoid an appearance of bias when it comes to Locast's litigation
adversaries, will you recuse yourself from all proceedings in which the
broadcast networks are interested parties?
Answer. I have crafted a voluntary, temporary, and narrow recusal
to address Committee concerns over my involvement with Locast and I
will not voluntarily recuse myself from any other proceedings involving
the broadcast networks.
Question 2. Do you think it would create an appearance of bias if
you were asked to review a merger involving one of the parties to the
Locast litigation?
Answer. No. If I am confirmed, and if I were asked to review a
merger involving one of the parties to the Locast litigation, I would
be bound by the law to decide matters based upon and supported by the
record of that merger. If the FCC makes a decision that is not
supported by the record of a particular proceeding, it is likely to be
reversed by the Federal courts of appeal.
Question 3. Thus far, litigation related to Locast has only
involved to the broadcast networks. What would you do, as a sitting FCC
commissioner, if another aggrieved party like a local station affiliate
were to initiate litigation related to Locast? Could that create
additional recusal issues for you?
Answer. If I am confirmed as an FCC Commissioner, I would have to
resign from the Sports Fans Coalition NY Board. If a local station
affiliate were to initiate litigation, I would not be a party to that
litigation, just as I was not a party to the previous litigation with
an organization where I was serving as a Board member. In any event,
the concerns and issues would be no different, so it would not present
any additional recusal issues.
Question 4. Why didn't you step aside or resign from the Locast
board while you were being considered as a nominee, to maintain an
appearance of independence from litigation? If you could go back in
time, would you have stepped aside or resigned during the vetting
process?
Answer. I would not have changed anything. First, I believed that
Locast was good for rural and low-income TV viewers and for TV
broadcasters. Second, I believed that Locast would qualify for the non-
profit exemption. And third, I did not know if and when I would be
nominated. White House vetting is no guarantee of a nomination.
Question 5. Did you tell the White House about your active
litigation with the broadcasting networks prior to your nomination?
Please provide the specific details of what information you shared with
the White House with respect to Locast's litigation, and when you
shared those details.
Answer. To be clear, this was not my active litigation. I was never
a party to the Locast litigation and never bore any financial
responsibility. The White House was aware of my membership on the
Sports Fans Coalition NY Board and the pending litigation involving its
Locast service from the very beginning of my vetting process, which
began in May 2021.
Question 6. At your first hearing, you told this committee that as
an FCC commissioner, you would work to support local broadcasting. Do
you agree that Locast's operations were financially harmful to local
broadcasters?
Answer. I do not agree that Locast's operations were financially
harmful to local broadcasters and Judge Stanton did not rule that
Locast's operations were financially harmful to local broadcasters. He
only ruled that Locast did not qualify for the exemption provided under
the law for nonprofits to retransmit broadcast TV signals without
paying fees.
______
Response to Written Questions Submitted by Hon. Ted Cruz to
Gigi B. Sohn
Question 1. Ms. Sohn, in response to my questions about the
settlement between the broadcasters and Sports Fan Coalition NY, Inc.,
you stated that you were unable to disclose the $700,000 settlement to
the Senate Commerce Committee because it was confidential. Specifically
you said:
``I was not allowed. Okay. I was not permitted'' As well as:
``Well, because I wasn't--it's a confidential agreement.'' And,
in response to questions from Senator Wicker, you stated:
``I was bound not to discuss the details of the settlement
agreement. I took that--I took that confidentiality agreement
very seriously.''
Additionally, in response to questions from Senator Thune and me
about the settlement, you said you were ``never a party to the
litigation'' and that ``the settlement--first of all, it's important I
was not a party to the settlement.''
I just want to make sure I have this correct--you are stating that,
as a matter of fact, you (1) were not able to disclose the $700,000
settlement to the Senate Commerce Committee because it was confidential
and (2) were never a party to the litigation and not a party to the
settlement. Is this accurate? If not, please explain in detail what is
inaccurate.
Answer. I signed the settlement agreement reflecting my voluntary
agreement to abide by one paragraph of the settlement agreement, by
which I became a party to the settlement. I am not and never was a
party to the litigation. To the extent that I said at the hearing that
I was not a party to the settlement, I misspoke. As a party to the
settlement agreement, I was bound by the confidentiality provisions of
that agreement.
Question 2. Now the provision in the settlement agreement, which
you stated prevents you from discussing the settlement agreement, is
titled ``6.0 Press Statements Regarding the Agreement and Consent
Judgement'' and it reads:
``No Party will communicate or authorize anyone to contact or
communicate with the media or press (orally, in writing, or
otherwise) concerning the Agreement or the Order, or issue any
press release or other written statement disclosing the terms
of the Agreement. If asked by the media or press about the
Agreement, a Party or its counsel may only state that ``The
litigation is over'' and refer the person inquiring to the
Order.''
The operative word here is ``Party,'' yet you testified that you
were ``never a party to the litigation'' and ``not a party to the
settlement'' while, at the same time, claiming you are bound by this
provision that covers parties to the settlement.
1. So which is it--are you a party to the settlement or aren't you?
2. If you are a party to the settlement, why did you testify
otherwise? If not, then please explain, in detail, how this
provision applies to you.
Answer. I signed the settlement agreement and therefore I am a
party to the settlement, although I am not a party to the litigation.
To the extent I said at the hearing that I was not a party to the
settlement, I misspoke. As a party to the settlement agreement, I was
bound by the confidentiality provision of that agreement.
Question 3. Your testimony is that you considered this
confidentiality provision binding on you and thus you were unable to
discuss the details of the settlement agreement. In fact, you testified
that ``I took very seriously my duty to keep the terms of the
settlement agreement confidential'' and that you ``took that
confidentiality agreement very seriously.''
Now the confidentiality provision clearly states that, if asked,
``a Party or its counsel may only state that `The litigation is over'
and refer the person inquiring to the Order.'' But in your answers to
questions for the record from your first hearing, this was not the
answer you gave to either Senator Wicker or Sullivan.
So why, if you ``took that confidentiality agreement very
seriously'' did you provide a different answer than the one stipulated
by provision 6.0?
Answer. As per the confidentiality provision, I did not reveal any
of the terms of the settlement agreement to either Senator, but instead
offered that Senators Wicker and Blunt obtain the full settlement
agreement from the parties so that they could review its terms.
Question 4. Ms. Sohn, in response to my questions about the
$700,000 settlement, you stated you had not disclosed the settlement to
the White House. Specifically the exchange was:
Senator Cruz: Yes or no, did you disclose the $700,000 secret
settlement to the White House? Yes or no?
Ms. Sohn: No, I did not.
Senator Cruz: So you did not disclose it to the White House?
The entire vetting they did--nobody asked about this?
Ms. Sohn: I was vetted long before . . .
I just want to be clear on this point--you did not disclose to the
White House or anyone in the Executive Branch, at any point in the
vetting process, this $700,000 settlement?
Answer. I did not. The vetting process concluded long before the
litigation was settled.
Question 5. Ms. Sohn, in your testimony you stated:
``Also omitted was the fact that the enforceable term sheet
setting forth the particulars of the settlement was signed on
October 12, two weeks before I was nominated for this position.
That term sheet is expressly referred to in the settlement
agreement. On October 12, when the settlement between the
networks and SFCNY was signed by their representatives, I had
no idea whether or not I was going to be nominated or when
that--or if I was going to be nominated at all. And the parties
didn't know either.''
However, your ``Public Financial Disclosure Report (OGE Form
278e)'' from last year, which you are required to complete as an
``advice-and-consent nominee,'' clearly states that you were filing the
form for the position of ``Commissioner, Federal Communications
Commission.'' Interestingly, it also shows that you electronically
signed the forms on May 21, 2021.
1. When, specifically, did you know whether you would be nominated?
2. When, specifically, did you know when you would be nominated?
3. Why did you testify that ``On October 12, when the settlement
between the networks and SFCNY was signed by their
representatives, I had no idea whether or not I was going to be
nominated or when that--or if I was going to be nominated at
all.'' if you had signed your financial disclosure report on
May 21, 2021, which clearly stated you were being nominated to
the position of ``Commissioner, Federal Communications
Commission.''?
4. What was the source of the almost 5-month delay from when you
completed your financial disclosure report and when you were
actually nominated?
5. Did the delay have anything to do with efforts by outside
parties, such as your former boss FCC Chairman Tom Wheeler, to
have you chair the FCC instead of Chairwoman Rosenworcel?
Answer. I was told that I would be nominated to be an FCC
Commissioner less than 24 hours before I was nominated. I was told then
that I was to be nominated the next day. I was told from the day my
vetting process started that I should not assume that I would be
nominated until I was actually nominated by President Biden.
My vetting process was not completed until the end of June 2021. I
did not ask for an explanation and was not given one by the White
House.
Question 6. This committee has already had one bait-and-switch with
Lina Khan being nominated and confirmed as a Commissioner to the
Federal Trade Commission, but subsequently being designated as
Chairwoman by the President. While this is the President's right under
the law, it was somewhat deceptive and it is likely Senators might have
approached Ms. Khan's nomination differently had they known she would
be leading the FTC and not just a Commissioner.
Ms. Sohn, there is a concern the same thing might happen with you
should you be confirmed, and that the President may designate you as
the Chairwoman and demote Chairwoman Rosenworcel.
1. Have you had any discussions with the White House or anyone in
the Executive Branch about such an arrangement? If so, who and
what was the outcome of those discussions?
2. Will you commit that, even if such an arrangement were offered,
you would not accept? If not, why not?
Answer. I have had no discussions with the White House or anyone in
the Executive Branch about any arrangement by which I would be
designated Chairwoman of the FCC and I do not expect that such an
arrangement will be offered to me. Jessica Rosenworcel is the Chair of
the FCC, and if I am confirmed, I look forward to working with her as
the fifth Commissioner.
Question 7. Ms. Sohn, in June 2018, you stated that ``[t]he end of
the 2015 net neutrality rules and the legal authority on which they are
based will allow companies like Comcast, AT&T and Verizon to take
control of consumers' Internet experience and favor or disfavor
websites, programming services and applications at will.'' That was
more than three years ago. What evidence do you have that ISPs have
engaged in such activities after the FCC under Chairman Pai restored
the classification of broadband services as information services?
Answer. As I noted in the questions for the record from my previous
hearing, the 2017 net neutrality repeal was broader than the bright
line rules--it removed FCC oversight over broadband entirely. Among
other things, that left California firefighters without recourse when a
broadband company throttled its service during the Mendocino complex
fire, which at the time was the biggest in state history, and left
consumers without recourse when Frontier charged monthly fees to
consumers who bought their own modems. It also resulted in some small
wireless providers having to slow or halt fiber deployment because pole
owners either charged higher rates or refused to negotiate a rate.
In addition, researchers at Northeastern University and the
University of Massachusetts at Amherst reviewed crowdsourced data from
the Wehe app and found that for mobile Internet service providers in
the United States, ``we don't see evidence of Internet service
providers throttling only when the network is busy; as far as we can
tell, it's 24/7, and everywhere.'' Professor David Choffnes, the lead
researcher, noted that this throttling created a ``slippery slope,''
because ``[t]oday it's video, but what is it going to be tomorrow? When
Internet service providers decide to take control and make decisions on
behalf of consumers and/or content providers, what's going to be the
fallout for those decisions? Is it actually in everyone's best
interests?''
It's also important to note that there is ongoing litigation over
the 2017 repeal, as well as a growing number of states that have passed
their own net neutrality laws and regulations.
California, Colorado, Maine, Oregon, Vermont and Washington State
have passed net neutrality laws and Hawaii, Montana, New Jersey, New
York, and Rhode Island have put in place net neutrality contracting
requirements. The California law was recently upheld by the 9th Circuit
Court of Appeals, which rejected a pre-emption challenge to the law. As
a result, broadband providers have been cautious about their business
practices.
Question 8. Ms. Sohn, in April 2017, you asserted that ``there's a
real chance the FTC actually won't be able to regulate ISPs at all.''
That obviously hasn't come to pass, nor is it a logical reading of the
FTC Act. On what legal basis did you make this statement?
Answer. In the absence of a citation or the context in which I
allegedly made that statement, I will presume that I meant that if the
FCC were to reclassify broadband as an information service (which it
did in December of that year), then the FTC would not be able to
regulate the network management practices of ISPs other than to enforce
its Section 5 authority to prohibit ``unfair or deceptive trade
practices'' in the event that an ISP were to be untruthful about how it
managed its network.
Question 9. Ms. Sohn, in an op-ed in 2017 written as an attempt to
convince House lawmakers not to pass a Resolution of Disapproval of the
FCC's ISP Privacy Rules, you asserted that ``ISPs like Comcast, AT&T,
and Charter will be free to sell your personal information to the
highest bidder without your permission.''
1. Has that actually occurred in the more than four years since the
Resolution of Disapproval passed?
2. Ms. Sohn, in 2017, you stated that ``[t]he Federal Trade
Commission has no legal authority to oversee ISP practices.''
On what legal basis did you make this statement?
Answer. Without the FCC's ISP Privacy Rules, each ISP is able to
set its own rules with regards to how it will use a subscriber's data.
A Federal Trade Commission October 2021 Staff Report on ISP privacy
noted that although ``several'' of the ISPs it contacted for its study
claimed not to sell the personal information collected, many of them
``provide insufficient information to consumers regarding the myriad of
ways that their data can be used, transferred, or monetized outside of
selling it, often burying such disclosures in the fine print of their
privacy policies,'' and also noted that some ISPs policies allow them
to use consumer data ``for any purpose.'' \3\ In addition, the study
found that ISPs have regularly violated user privacy by disclosing
real-time location data to third parties, including bounty hunters.
---------------------------------------------------------------------------
\3\ See Federal Trade Commission, Staff Report, A Look At What ISPs
Know About You: Examining the Privacy Practices of Six Major Internet
Service Providers (October 21, 2021) (https://
www.ftc.gov/system/files/documents/reports/look-what-isps-know-about-
you-examining-privacy
-practices-six-major-internet-service-providers/
p195402_isp_6b_staff_report.pdf).
---------------------------------------------------------------------------
With regards to the second point, as I noted in my previous
responses to the questions for the record in December, I am unaware of
the context in which this statement arose, but I was most likely
talking about the FTC's ability to enforce net neutrality's bright line
principles, i.e., no blocking, no throttling and no paid
prioritization. While the FTC under its Section 5 authority does
oversee ``unfair or deceptive practices,'' of ISPs, it has interpreted
that authority to apply only to those occasions where the ISP either
promises to engage (or not engage) in a certain behavior but does it
anyway, or whether it has failed to tell a consumer that it will engage
in certain behavior. In other words, if an ISP reserves the right to
engage in blocking, throttling and paid prioritization and tells the
consumer, the FTC has no authority to regulate that behavior.
Question 10. Ms. Sohn, in 2017, you stated that ``[a]ny weakening
of the [FCC's privacy] rules by either the Trump FCC or Congress will
leave consumers unprotected from ISP data collection, use and security
practices that might violate their privacy.'' What privacy violations
by ISPs have occurred since you made that statement?
Answer. As I noted in my previous responses to questions for the
record in December, the Federal Trade Commission in October 2021
published a study of six major ISPs--AT&T, Verizon, Charter, Comcast,
T-Mobile, and Google--that examined the industry's privacy practices
since 2017.\4\ Among other things, the study found that ISPs have
regularly violated user privacy by:
---------------------------------------------------------------------------
\4\ Id.
Disclosing real-time location data to third parties,
---------------------------------------------------------------------------
including bounty hunters;
Collecting data unnecessary for the provision of Internet
service to target ads;
Collecting data on sensitive characteristics such as
political affiliation, sexual orientation, and religious
beliefs; and
Using confusing interfaces, sometimes called ``dark
patterns,'' to mislead consumers into inadvertently sharing
more data.
Importantly, ISPs often retain this data for years, even after
customers have terminated their relationship with the ISP.
Question 11. Ms. Sohn, in response to Congressional passage of a
Resolution of Disapproval of the FCC's ISP Privacy Rules, you stated
that ``[i]f Chairman Pai intends to pursue that same rash, anti-
consumer agenda and expects a different result, he is fooling
himself.'' What did you mean by that statement? And do you think that
every Member of Congress who voted for the Resolution of Disapproval,
including myself, has a ``rash, anti-consumer agenda?''
Answer. That statement was made not in response to the passage of
the Resolution of Disapproval, but in response to the August 30 closing
of the reply period to the proceeding that would result in the
reclassification of broadband and the repeal of the net neutrality
rules. Here is the entire paragraph containing that statement:
``It's no secret that American consumers regardless of party
affiliation overwhelmingly support basic rules that protect
them and the Open Internet they increasingly depend upon. They
expect and deserve the freedom to choose what they see, buy,
hear and share. They made that abundantly clear earlier this
year when Congress rushed to repeal another set of Internet
consumer protections, the broadband privacy rules, and they
will do so again. If Chairman Pai intends to pursue that same
rash, anti-consumer agenda and expects a different result, he
is fooling himself.'' \5\
---------------------------------------------------------------------------
\5\ Statement of Gigi Sohn on the August 30th Closing of FCC's Net
Neutrality Public Comment Period, found at http://gigisohn.com/news/
statement-gigi-sohn-august-30th-closing-fccs-net-neutrality-public-
comment-period/ (August 30, 2017)
So rather than questioning the motivations of members of Congress
in repealing the broadband privacy rules, I was pointing out the
negative reaction among many members of the public to that repeal and
positing that the reaction to a net neutrality repeal would be no
different, and indeed, it was more negative for the latter than for the
---------------------------------------------------------------------------
former.
Question 12. Ms. Sohn, have you said that ``the only thing
protecting our Republic is the Ds [that is, the Democrats] taking over
the Senate'' and if so can you please detail your position here?
Answer. I was concerned that an unnecessary primary challenge to
Senator Markey would divert resources away from the general election.
Question 13. Have you said that it is ``sad'' that Senate
Republicans' ``ideology has overtaken their duty 2 serve their
constituents'' and if so can you please detail your position here?
Answer. I was responding to the inability of Congress at the time
to pass a law that would allow E-Rate funds to be used to fund
connectivity to the home during the early days of the pandemic, when
every K-12 student, regardless of their means, was forced to learn
remotely. After speaking to a Hill staffer, I was told that some
Republican Senators did not want to pass such a law because it would
``turbocharge'' the program. Thankfully, Congress did create the
Emergency Connectivity Fund (ECF) as part of the American Rescue Plan,
and that fund does permit its resources to be used to provide
connectivity to the home. Unfortunately, the ECF is only temporary, and
the FCC is still not able to use E-Rate funding to provide home
connectivity.
Question 14. Have you said that ``Republicans know that the only
way they can win is to suppress the vote'' and if so can you please
detail your position here?
Answer. I was upset that anyone would seek to throw out 100,000
ballots cast through curbside voting, which was legal in Harris County
at the time.
Question 15. Do you think partisan and petty name calling is
appropriate for a public official? Have you called Senator McConnell
``the grim reaper''? \6\
---------------------------------------------------------------------------
\6\ June 11, 2019 Fight For the Future event at minute 20:37
https://www.twitch.tv/videos/440317951 Sohn: ``I think that's why we
need to pass this bill. And Senator McConnell, the grim reaper, needs
to do what 85 percent of Americans on a bipartisan basis want him to
do. And that's reinstate the 2015 Open Internet Order through the Save
The Internet Act.''
---------------------------------------------------------------------------
Answer. I do not think that partisan and petty name calling is
appropriate for a public official. It was an off-hand comment made as a
public advocate and in the context of a policy discussion of the
Senate's consideration of the Save the Internet Act, which would have
reinstated the 2015 Open Internet Order. Senator McConnell said that
the bill was ``dead on arrival'' in the Senate,\7\ hence the ``grim
reaper'' reference. Regardless, I regret the comment.
---------------------------------------------------------------------------
\7\ E.g., McConnell: Net Neutrality Bill ``Dead on Arrival'' in the
Senate, The Hill, found at https://thehill.com/homenews/senate/438133-
mcconnell-net-neutrality-bill-dead-on-arrival-in-senate (April 9,
2019).
Question 16. Have you said that Ranking Member Wicker's views on
net neutrality are ``nothing more than #debunked broadband industry
talking points''?
Answer. I did, and as I discussed at the December 1 hearing, this
tweet was made in the context of the vote on the Save the Internet Act.
Question 17. Have you said that that the ``GOP works so hard 2 pack
the courts--it knows that it is the only bulwark against a country that
is changing demographically, ideologically, & politically'' and if so
can you please detail your position here?
Answer. This tweet describes an article in the Atlantic that I
found interesting and timely given that it was written at the time the
Senate was considering the nomination of now-Justice Amy Coney Barrett.
Question 18. Have you labeled President Trump and other
conservatives ``right-wing extremists'' and if so can you please
identify here all of the conservatives that you had in mind?
Answer. I did not have any specific people in mind. I was
describing an article by Steve Levy of Wired that I found interesting
and timely given the claims of some conservatives that Twitter and
Facebook engage in anti-conservative bias.
Question 19. You have closely aligned yourself with an activist
organization called Fight for the Future. You've done events with them.
You've donated money to them. You've encouraged others to donate money
to them. You have referred to them as your ``great friends & colleagues
fighting 4 an open Internet.'' And they have endorsed you for the FCC.
In one of the net neutrality events you did with them, you said ``thank
you . . . for all the work Fight for the Future [and others] . . . have
done bringing the American people to these issues. . . . I've never
seen anything like it.'' Correct?
Answer. I have worked with Fight for the Future and other
grassroots groups for a number of years now on net neutrality issues
and collectively they have gotten millions of Americans to engage in
supporting net neutrality and FCC authority over broadband. For the
past several years I have given them, and several other organizations
with whom I work, $100 end-of-the-year donations.
Question 20. In terms of what they've done, Fight for the Future
routinely engages in pressure campaigns that direct vitriol and
personal attacks towards Members of Congress, including calling Senator
Sinema ``corrupt,'' Senator Blackburn a ``notoriously corrupt
lawmaker,'' saying that Senator Sullivan ``betrayed'' Alaska due to his
position on Title II, and protesting what Fight for the Future said was
a fundraiser for Senator Wicker where Fight for the Future brought an
oversized check and said they were there to ``BUY A SENATOR.'' Is that
correct?
Answer. I do not support these kind of tactics by any organization.
My work with Fight for the Future has been focused around getting more
Americans interested and supportive of net neutrality and FCC authority
over broadband.
Question 21. I am troubled by the fact that you have repeatedly
embraced, funded, and encouraged the use of those personal attacks and
vitriolic tactics. Indeed, you quote tweeted Fight For the Future's
``BUY A SENATOR'' attack on Ranking Member Wicker and said ``Well done,
@fightfortheftr!'' Is that correct?
Answer. I have not ``repeatedly embraced, funded, and encouraged
the use of those personal attacks and vitriolic tactics.'' Indeed, when
I worked for Chairman Wheeler at the FCC, the Chairman, my colleagues,
and I myself were targets of these tactics, and it was my job to stop
them. My nominal financial contributions and occasional tweets of
support were for the work Fight for the Future and other grassroots
organizations engaged in to educate Americans about the importance of
net neutrality and FCC authority over broadband.
Question 22. Have you said that Fox News is ``state-sponsored
propaganda''? If so, please explain, in detail, how Fox News is state-
sponsored and what you believe to be propaganda.
Answer. As is apparent from the tweet that I commented on shown
above, I was suggesting that in order for Congress to get the full
picture about online bias and misinformation, it needed to examine the
mainstream media as well. By ``state-sponsored propaganda,'' I was
referring to the close relationship between the previous Administration
and Fox News.
Question 23. Have you said that Fox News is ``dangerous to our
democracy'' ? If so, please explain, in detail, the exact dangers you
believe Fox News poses to the United States, and in particular the
specific dangers Fox News poses to democracy.
Answer. I was commenting on the laser focus of Congress and the
mainstream media on bias and misinformation on big tech platforms while
ignoring incidents like the one discussed above--where a major media
outlet refuses to call the duly elected President the ``President-
elect.''
Question 24. Have you said that the FCC should look at revoking the
broadcast license of Sinclair and have you said that about any other
broadcasters?
Answer. The question of whether Sinclair is fit to be a broadcast
licensee came up in the context of its proposed merger with Tribune. I
opposed the Sinclair-Tribune merger not because of Sinclair's
conservative views, but because it would have, in my words, ``put far
too much power over local news and information in the hands of one
company.''
It was the FCC under Chairman Ajit Pai that effectively blocked the
merger because it found that ``there was a substantial and material
fact as to whether Sinclair affirmatively misrepresented or omitted
material facts with the intent to consummate this transaction without
fully complying with the media ownership rules.'' I supported that
decision, and said that, ``[i]f true, this allegation raises a
legitimate question as to whether Sinclair is fit to be a licensee at
all, and not just a licensee of Tribune's stations.'' This is
consistent with the Administrative Law Judge, appointed by then-
Chairman Pai, who said that Sinclair's misrepresentations ``may be so
fundamental to a licensee's operation that it is relevant to its
qualification to hold any station license.''
Question 25. Have you said that ``big telecom, cable, and media''
have ``played their own role in destroying democracy & electing
autocrats'' and if so can you please detail your position here? What
autocrats, specifically, have big telecom, cable, and media elected?
Please also provide your definition of ``autocrat'' as you used it in
your tweet.
Answer. This tweet was commenting on an Axios article about how big
tech companies were under enormous scrutiny by Congress and the
previous Administration, but that telecommunications and media
companies had virtually escaped any similar scrutiny and in fact had
been spending a lot of money to keep the spotlight on tech companies.
Question 26: Have you said that for all your concerns about
Facebook, ``Fox News has had the most negative impact on our
democracy''?
Answer. As is apparent from the tweet that I commented on shown
above, I was suggesting that in order for Congress to get the full
picture about online bias and misinformation, it needed to examine the
mainstream media as well.
______
Response to Written Questions Submitted by Hon. Deb Fischer to
Gigi B. Sohn
Question 1. During the hearing, you said you ``can't think of one
instance where the full FCC has decided a carriage dispute'' such as
one that your ``narrow, temporary recusal'' would cover. Yet, as
recently as September 2020, the full FCC upheld the Media Bureau's
finding that Sinclair-affiliated broadcast station groups had violated
the good faith retransmission consent rules in negotiations with AT&T.
And in July 2021, the full FCC adopted a Forfeiture Order fining the
eight Sinclair-affiliated station groups for such violations. Indeed,
over the course of the past decade the full FCC has issued more than a
dozen carriage dispute-related rulings--including no less than three
during your time serving under former Chairman Wheeler.
Blackouts matter to my constituents. Orphan counties matter to my
constituents. The ability to receive local news, weather, emergency
alerts are matters of consumer protection. Now you're asking us to
confirm you to an agency that's responsible for overseeing these
issues, but you yourself will have your hands tied. Given this, please
clarify the following:
1. Under the scope of your recusal, is it true that you would be
barred from addressing the issue of blackouts, orphan counties,
and more generally carriage disputes involving the ability of
American citizens to receive local news, weather, and emergency
alerts?
2. Please list retransmission consent or broadcast copyright matters
that have come before the full FCC in the past five years that
would qualify as ``material'' under your recusal commitment.
Answer. In my letter to the FCC General Counsel, I pledged to
recuse myself for the first four years of my term ``from participation
in FCC Docket No. 10-71 or any related FCC docket concerning the same
issues.'' In addition, for the first three years of my term, I pledged
to recuse myself ``from any proceeding before the Commission where
retransmission consent or television broadcast copyright is a material
issue in the Commission's disposition of that proceeding.'' I also
pledged to consult with the General Counsel with regard to my
participation in any of these proceedings. If I am confirmed, that
three-year term would start to run in July 2021.
It is important to note that the specific Commission-level
decisions you note above regarding the Sinclair-affiliated station
groups were unanimous decisions, and thus were not dependent on a fifth
vote to render a decision. And it appears that this is the only
Commission-level good faith dispute decision since the good faith rules
were adopted 20 years ago.
As I noted at the hearing, it is my understanding that while
retransmission consent disputes between broadcasters and MVPDs are not
rare, it is not the case that many of those disputes result in a good
faith rule violation complaint. Even further, for those instances where
there are complaints filed, they are most likely resolved at the Bureau
level. In fact, the Commission concluded in implementing the good faith
rules in 2000 that ``the statute does not intend to subject
retransmission consent negotiation to detailed substantive oversight by
the Commission.'' \8\
---------------------------------------------------------------------------
\8\ See First Report and Order, Implementation of the Satellite
Home Viewer Improvement Act of 1999, CS
---------------------------------------------------------------------------
Additionally, in reviewing the Commission's actions in the past
five years, there are two proceedings that conceivably might have
qualified as ``material'' under my voluntary recusal: (1) Cable Service
Change Notifications proceeding;\9\ and (2) Implementation of Section
1003 of the Television Viewer Protection Act of 2019.\10\ However, like
the Sinclair-affiliated station group decisions, these Commission-level
decisions also were unanimous.
---------------------------------------------------------------------------
\9\ The Commission adopted a Notice of Proposed Rulemaking in this
proceeding on December 19, 2019 (34 FCC Rcd 12709) and a Report and
Order on September 30, 2020 (35 FCC Rcd 11052).
\10\ The Commission adopted a Notice of Proposed Rulemaking in this
proceeding on January 31, 2020 (35 FCC Rcd 644) and a Report and Order
on May 12, 2020 (35 FCC Rcd 4961).
---------------------------------------------------------------------------
Finally, without additional information regarding the ``dozen
carriage dispute-related rulings'' referenced above, I cannot comment
further. Regardless, a dozen carriage dispute related rulings by the
full FCC over a decade is still a pretty rare occurrence and the
unanimous decisions in the cases described above indicates that my
temporary and narrow recusal will have a very limited, if any, impact
on the Commission's business. And, as mentioned in my voluntary recusal
letter, any recusal would be subject to consultation with the FCC's
Office of General Counsel.
Question 2. Why does your recusal not extend through the duration
of your prospective FCC appointment?
Answer. I believe that the time frames that I have set out in the
recusal letter are adequate to avoid any appearance of impropriety and
to ensure that the public has full confidence that policymakers will
make decisions free of bias.
Question 3. Public reports indicate you were recused from directly
engaging on retransmission consent issues while working at the FCC in
the office of Chairman Wheeler. Please share all details about any
recusal (or any other restriction in lieu of recusal) that prevented
you from directly engaging on retransmission consent issues, including;
1. How the recusal originated;
2. The parties involved or consulted in deciding to recuse;
3. The person or persons that initiated the recusal;
4. The method of compliance with such recusal during your tenure as
FCC staff;
5. The duration of the recusal and whether it extended for the
duration of your time at the FCC as a staff member; and,
6. Whether the recusal was specifically tied to the March 9, 2010
Petition for Rulemaking that you signed and submitted as
President of Public Knowledge.
Answer. The reports that I was recused from Docket 10-71 when I was
a staffer at the FCC were incorrect and I confirmed this with the FCC
Office of General Counsel. Docket No. 99-363, 15 FCC Rcd 5445 at 6
(Mar. 14, 2000).
______
Response to Written Questions Submitted by Hon. Jerry Moran to
Gigi B. Sohn
Question 1. Ms. Sohn, in your January 27th recusal letter, you cite
a 2010 Petition for Rulemaking that you signed as the president of
Public Knowledge as the reason for your recusal on any FCC proceeding
where retransmission consent is a material issue, if you are confirmed.
This indicates you believe your prior advocacy before the FCC on an
issue would preclude you from conducting your duties at the FCC without
the appearance of impropriety.
During you career as an advocate, you participated in many
petitions and other measures before the Commission, on many topics,
impacting many sectors that you would oversee as Commissioner.
Please explain to me why you believe your advocacy on broadcast
retransmission necessitates your recusal on those issues, but your
advocacy on a host of other issues you have also advocated on does not
similarly require your recusal.
Answer. I do not believe that a recusal is necessary and ethics
officials have determined the same. As I testified at the February 9
hearing, I was trying to address the concerns of some members of this
Committee with respect to my involvement in Locast, so I crafted a
temporary and narrow voluntary recusal at the nexus of my involvement
with Locast and my personal participation in a 12-year-old Petition for
Rulemaking seeking changes to the retransmission consent regime.
I relied upon precedent involving former Chair Kennard, who
voluntarily recused himself from a fairness doctrine related docket
because he had signed a Petition for Rulemaking as an NAB intern many
years before. I had signed a Petition for Rulemaking seeking changes to
the retransmission consent regime, and the docket remains open, so I
have voluntarily offered to recuse myself for a limited period from
issues emanating from that petition.
There is no similar rationale for wide ranging recusals not
tethered to anything and without precedent. Those who are seeking such
recusals are effectively saying that I should be recused from
everything and anything I have ever advocated for or against. Imagine
the implications of that--anyone, whether they be in private practice,
working for a corporation, an academic or a public interest advocate,
would have to recuse themselves from any matter on which they've taken
a public position on, whether or not they were representing specific
clients. The result would be an FCC populated by members with no
background in communications law and policy. I do not believe that is a
result that anybody wants.
Question 2. In your testimony, you claimed that opposition to your
nomination stems from the desire to deadlock the FCC on issues like
IIJA implementation, media diversity, and network resiliency.
1. Hasn't the FCC met all deadlines implementing the IIJA and other
statutory directives? Do you deny that the FCC voted to
implement the ACP (and, before it, its predecessor EBB) under
tight deadlines and across party lines, and voted unanimously
to initiate proceedings to adopt a broadband nutrition label
and consider reforms to the Universal Service Fund, among other
critical, bipartisan statutory objectives?
2. Hasn't the FCC also recently acted to address media ownership and
diversity issues in a bipartisan manner? Do you deny that the
FCC voted unanimously in July 2021 on a diversity proposal that
would require broadcasters to start providing certain EEO data
to the FCC for the first time since 2001? Or that Chair
Rosenworcel issued a public notice in June 2021 to refresh the
record of the 2018 Quadrennial Review?
3. Hasn't the FCC also recently acted to address network resiliency
on a bipartisan basis? Do you deny that the FCC voted
unanimously in September 2021 on a proposal to make mandatory
the existing voluntary network resiliency framework?
Answer. As you note, the Commission to date has met all of the
Congressionally-mandated statutory deadlines to implement the IIJA and
the ACP. However, as I noted at the hearing, there could be issues that
arise with regards to the program that the Commission will need to
resolve and that may need to have a fifth vote. Further, the Commission
only voted to refresh the record on media ownership and diversity
issues. Asking the public to refresh the record in a proceeding is a
simple and non-controversial act. However, when the time comes for the
Commission to actually decide what media ownership rules and policies
may or may not be necessary, there is likely to be a difference of
opinion. The Commission also voted to start a proceeding to review
proposals to improve the reliability and resiliency of communications
networks during emergencies. Policymakers often vote unanimously to
start a proceeding asking the public to comment. Where a fifth vote
will likely be necessary is for a final vote to adopt rules or
policies.
Question 3. In your testimony, you have repeatedly said that you
have been working on communications issues for decades, but then told
the Committee to ignore your ``sharp'' tweets and academic writings and
claim the views you expressed will have no bearing on your work at the
FCC:
[In response to Sen. Blunt]: ``My opinions as a public interest
advocate will have no bearing on how I behave as a
policymaker.''
[In response to Sen. Sullivan]: ``That was as a public interest
advocate as part of my job. Those were my words. Those are my
opinions, but they will have no bearing on how I would act if
I'm confirmed as an FCC commissioner.''
[In response to Sen. Sinema]: ``My views are always evolving,''
and ``What I said in an academic paper, frankly, is just
academic.''
1. How can the Committee be sure that, if confirmed, you won't
similarly disavow what you have told Members during this
confirmation process?
2. In President Biden's announcement of your nomination, the White
House cited your 30 years of advocacy as a qualification for
this job, so why should Senators simply disregard the
inflammatory statements you made as an ``advocate'' if that
advocacy is one of the primary justifications for your
nomination?
3. What is the Committee and Senate supposed to base its
confirmation decision on if not your statements and positions
as a public advocate?
Answer. I have not asked the Committee to ignore my tweets or my
previous advocacy. I explained in both of my confirmation hearings and
previous QFRs that my tweets and other statements were made in a
different role, that of a public advocate. As someone who previously
served at the FCC, I understand that if I am confirmed, my role and
responsibilities as a policymaker will be much different--I would be
bound by the law to decide matters based upon and supported by the
record of a specific proceeding. If the FCC makes a decision that is
not supported by the record of a particular proceeding, it is likely to
be reversed by the Federal courts of appeal.
In this way, my role is no different than the many nominees that
have come before this Committee who have worked for regulatees,
represented them as clients, or served on their boards. Others have
been academics and Hill staffers. Many of them took very public
positions on a variety of communications policy issues either in their
own name or on behalf of their employers, their trade association
members, or corporate clients, yet none of them received the kind of
scrutiny that I have received because I am a consumer advocate. I
simply ask to be held to the same standard that they were. The
Committee and the Senate should base its confirmation decision on
whether I am qualified to be an FCC Commissioner.
Question 4. Ms. Sohn, your recusal letter states that you want to
avoid any appearance of impropriety and ensure that the public has full
confidence that policymakers will make decisions free of bias. If you
are confirmed, and are required to vote on an issue that you have
previously advocated to the FCC on, are you concerned that your
previous advocacy will give the appearance of bias? Or make the
Commission seem biased?
Answer. No, I am not concerned, because my recusal was narrowly
tailored to address the nexus of my involvement with Locast and my
personal participation in a 12-year-old Petition for Rulemaking seeking
changes to the retransmission consent regime.
If I am confirmed, I would be bound by the law to decide matters
based upon and supported by the record of a specific proceeding. If the
FCC makes a decision that is not supported by the record of a
particular proceeding, it is likely to be reversed by the Federal
courts of appeal.
Question 5. Given your recusal, why should this Committee confirm
you, instead of a candidate that is able to oversee all portions of the
FCC's portfolio?
Answer. Any nominee that has worked for regulatees, represented
them as clients, or served on their boards is not ``able to oversee all
portions of the FCC's portfolio.'' Any nominee that has a family member
with a financial interest in a regulatee is not ``able to oversee all
portions of the FCC's portfolio.'' There have been many nominees for
FCC positions who have been recused from various proceedings because of
their relationships with industry. Again, I ask not to be held to a
different standard than nominees with industry ties.
______
Response to Written Questions Submitted by Hon. Dan Sullivan to
Gigi B. Sohn
Question 1. During the hearing you claimed that you were legally
barred in writing from discussing the terms of the Locast settlement
with this Committee. Why did you not make clear at the first hearing or
through your initial QFR responses that you believed you were legally
prohibited from discussing the settlement terms?
Answer. I was not asked about the settlement agreement at the first
hearing. The confidentiality provision is a term in the settlement
agreement, so I was also prohibited from discussing it in writing in
the QFRs. However, I did offer to Senators Wicker and Blunt to obtain
the full settlement agreement from the parties so that they could
review all of its terms. I was and remain happy to answer any questions
about the settlement agreement you may have after reviewing the terms,
and did so at the last hearing.
Question 2. You clarified during the hearing that your motivation
for the recusal was to address the concerns expressed about the Locast
settlement by members of this Committee.
1. If the nexus was so obvious, why not mention Locast and the
concerns of the Committee in the recusal letter?
2. Why did you not consult with the Senators who raised those
concerns regarding the scope and nature of your recusal?
Answer. As I testified on February 9, it would have been the better
course for me to have referenced explicitly the Locast litigation in my
January 27 letter and I regret not doing so. I decided instead to
reference only prior FCC precedent where Chairman Kennard voluntarily
recused himself from a matter that he had personally participated in
years earlier. However, given the steady and vocal concern from members
of this Committee about my involvement in Locast and the focus of the
recusal on retransmission consent and TV broadcast copyright, it is
readily apparent to anyone who has followed my confirmation process
that the recusal was tied to the Locast matter.
I would have been happy to meet with any member of the Committee to
discuss the settlement agreement on a confidential basis and have
offered several meetings to many members of this Committee.
Question 3. Who provided input on your recusal letter? Please
provide a complete list.
Answer. I drafted the recusal letter myself and did not seek any
input.
Question 4. What was the reasoning for the length of your recusals?
Answer. I chose time frames that I believed would be adequate to
avoid any appearance of impropriety and to ensure that the public has
full confidence that policymakers will make decisions free of bias.
Question 5. In your recusal letter, why did you specifically carve
out proceedings ``involving the Commission's media ownership rules . .
. or transfers of control of broadcast, cable, and satellite
companies''? Shouldn't you want to ``avoid any appearance of
impropriety'' with those issues as well?
Answer. No, because the concerns over my involvement with Locast
have nothing to do with media ownership issues or license transfers.
Question 6. You have described the activist group Fight For The
Future as ``good friends and colleagues'', donated to them
periodically, and endorsed their tactics. You tweeted ``well done'' to
the group after they showed up at a fundraiser for Senator Wicker with
an oversized check saying that they were there to ``buy a Senator''.
They have also called Senator Sinema ``one of the most corrupt members
of her party'' and launched a billboard campaign against her, calling
her corrupt. You claimed during the hearing that you don't always agree
with their tactics.
1. When do you consider Fight For The Future's tactics ``well
done''?
2. What are the differences between the two instances mentioned
above?
3. Haven't you repeatedly urged your Twitter followers to contribute
to this organization?
4. You have connections with a number of activist groups. How can we
be certain that, as an FCC commissioner, you won't use your
connections to these groups to coordinate or condone attacks on
your fellow commissioners or Members of Congress?
Answer. While I did not realize that the fundraiser was for Senator
Wicker when I sent that tweet, I think it is legitimate for the public
or an organization to raise questions or object when an industry holds
a fundraiser for a member of Congress who oversees that industry. I do
not view that as a personal attack on Senator Wicker so much as a
criticism of the industry. That is in sharp contrast to the clear and
unfair personal attack on Senator Sinema.
Over the past several years, I have made small end-of-year
contributions to almost every organization with which I work on
communications policy matters and at that time, just once a year, I
urge my twitter followers to join me in supporting them. It does not
mean that I condone every tactic they use, and in fact, a number of
them have disagreed with my decisions and tactics over the past two
decades.
I have never used my relationships with any group to coordinate or
condone attacks on FCC Commissioners, Members of Congress, or any other
policymaker and I certainly would not do so as an FCC Commissioner.
Question 7. Per your offer at the hearing, please list the
instances in which you have publicly criticized Democrats.
Answer. See Attachment A.
Question 8. You have been critical of the FCC's rural broadband
policies stating that the FCC has ``made it really easy for broadband
companies, rural broadband companies tend to be monopolies, to
basically suck at the government teat to the tune of tens of billions
of dollars.'' Do you stand by your statement that rural broadband
companies ``suck at the government teat''?
Answer. I do not recall making such a statement and I cannot find a
reference to where I made such a statement. Regardless, I have been
critical of how the FCC (and other government agencies) have spent
ratepayer dollars on deploying broadband in rural areas. In my last
public speech, made to the Association of Public and Land Grant
Universities on January 28, 2021, I argued that the Federal government
needed (1) more accurate broadband maps; (2) to engage in more due
diligence in determining whether applicants for government funding had
the technical, operational and financial ability to keep their
promises; (3) to conduct continuing and in-person oversight to ensure
that those who have obtained funding to build broadband networks are
indeed building those promised networks; and (4) to hold accountable
those who have not met their promise to build networks.
Even as I have been critical of how the Federal government has
spent money intended to close the digital divide in rural America, I
have always been supportive of ensuring that rural America has robust
and affordable broadband. That support is evident not only in the
aforementioned speech, but in many interviews I have given to the
press, the assistance that I have given to rural states and communities
and my work on and ongoing support for both the broadband provisions of
the last COVID-19 relief bill, the American Rescue Plan and the IIJA,
which provides tens of billions of dollars for states and tribal
communities to deploy broadband.
I will note finally that NTCA--the Rural Broadband Association and
the Rural Wireless Association both support my confirmation.
______
Response to Written Questions Submitted by Hon. Marsha Blackburn to
Gigi B. Sohn
Question 1. In your recusal letter, you said you would recuse
yourself from any proceeding before the FCC on ``television broadcast
copyright.'' Yet you said in your prior QFRs that ``[t]he courts, the
Copyright Office, and Congress have consistently affirmed that the
Commission lacks jurisdiction over matters of copyright policy. If
confirmed as Commissioner, I would commit to ensure that the FCC does
not seek to extend the bounds of its jurisdiction to matters of
copyright.''
1. How can you make the above commitment when you are recused on
broadcast copyright issues at the FCC?
2. You actively pushed for former Chairman Wheeler's set top box
proposal that would have benefitted companies like Google at
the expense of content creators. Do you agree the FCC has no
ability to reprise any such actions due to a lack of
jurisdiction over copyright?
Answer. My voluntary recusal extends only to matters where
television broadcast copyright is ``material'' to a proceeding, and
extends not to copyright generally, but just to ``television''
broadcast copyright. That leaves a good bit of opportunity for me to
ensure that the FCC does not extend the bounds of its jurisdiction.
As one of Chairman Wheeler's staffers, it was my job to help him
with his set-top box proposal, which was intended to give consumers
greater choice in consumer electronics equipment and give content
creators greater opportunity to reach new audiences. I do not expect
the FCC to reprise this proceeding for many reasons, including
copyright concerns.
Question 2. You have made many public statements, tweets, and
participated in interviews during the course of your career that
criticized political officials and companies that the FCC regulates.
Yet you've told the Committee that these statements will have ``no
bearing'' on your work at the FCC.
1. In 2020, you tweeted that the Trump Administration was ``pressing
to get [Commissioner] Simington confirmed ASAP'' in order to
take action on Section 230. Do you think the President should
choose to nominate people who will put his preferred policies
into place? Do you think that is why you were nominated?
2. During your second confirmation hearing, you said, ``There are a
number of media ownership and media diversity initiatives that
will not move until there's a full FCC. So if we want to
strengthen local broadcasting and strengthen media diversity,
we need to have a full FCC. So I hope that is part of the
reason that this body will vote me out favorably because I
think it's necessary.'' Does this mean that you have already
formed your position on these matte's, even before reviewing
any public comments or proceeding record?
Answer. My tweet was a comment on a reporter's tweet that noted
that the FCC did not have three votes to start a proceeding to
interpret Section 230. I tweeted that this was why ``the right was
pressing to get [Commissioner] Simington confirmed ASAP.'' I said
nothing about the Trump Administration. Regardless, I expect Presidents
to nominate people who will put their preferred policies into place and
I suspect that is why President Biden nominated me.
I have not formed a position on pending media ownership and media
diversity matters. I would need to familiarize myself with the records
of those proceedings and the issues raised before I could even form a
position, which by law would have to be based on the record. Nothing
that I said at the hearing suggested that I have prejudged the outcome
of these proceedings.
______
Response to Written Questions Submitted by Hon. Todd Young to
Gigi B. Sohn
Question 1. On September 12, 2012, you were the lone signatory on a
letter accompanying comments filed by Public Knowledge in Comments on
Procurement Documents for the Local Number Portability (LNP
Administration Contract; WCB Docket 09-109, WC Docket No. 07-149, CC
Docket No. 95-116). In this letter you outline a number of requirements
you would likea new LNP Administrator to meet. Will you commit to
recusing from any future proceedings regarding LNP Administrators to
avoid an appearance of impropriety? If not, please characterize your
advocacy in this docket and distinguish it from your filing in 2010
that you have determined requires your recusal.
Answer. No, I will not recuse myself from future proceedings
regarding LNP Administrators. I sought to address the concerns of some
members of this Committee with respect to my involvement with Locast.
So I crafted a temporary and narrow voluntary recusal at the nexus of
my involvement with Locast and my personal participation in a 12-year-
old Petition for Rulemaking seeking changes to the retransmission
consent regime. The concerns over my involvement with Locast have
nothing to do with LNP Administrators.
Regardless, if I am confirmed, and if this docket is moved forward,
I would seek advice from FCC ethics officials on my ability to
participate.
Question 2. On May 10, 2010, you submitted comments In the Matter
of Amendments of the Commission's Ex Parte Rules and Other Procedural
Rules; GC Docket No. 10-43. In these comments you warn that if the
procedural reforms you are advocating for are not adopted the public's
confidence in the Commission's decision making process will be
undermined. Will you commit to recusing from any future proceedings
involving the Commission's procedural rules to avoid an appearance of
impropriety or predetermination? If not, please characterize your
advocacy in this docket and distinguish it from your filing in 2010
that you have determined requires your recusal.
Answer. No, I will not recuse myself from future proceedings
involving the Commission's procedural rules. I sought to address the
concerns of some members of this Committee with respect to my
involvement with Locast, so I crafted a temporary and narrow voluntary
recusal at the nexus of my involvement with Locast and my personal
participation in a 12-year-old Petition for Rulemaking seeking changes
to the retransmission consent regime. The concerns over my involvement
with Locast have nothing to do with the FCC's procedural rules.
Regardless, if I am confirmed, and if this docket is moved forward,
I would seek advice from FCC ethics officials on my ability to
participate.
Question 3. On June 15, 2009, you filed comments In the Matters of
Implementation of the Omnibus Budget Reconciliation Act of 1993 and
Annual Report and Analysis of Competitive Market Conditions With
Respect to Commercial Mobile Services (CMRS); WT Docket No. 09-66. In
these comments you advocate for the use of certain market definitions
and measures of completion in the CMRS report. Will you commit to
recusing yourself from any proceedings involving the annual
Communications Market Report or the biennial report on the state of the
communications marketplace to avoid an appearance of impropriety? If
not, please characterize your advocacy in this docket and distinguish
it from your filing in another docket a year later that you have
determined requires your recusal.
Answer. No, I will not recuse myself from future proceedings
involving the annual Communications Market Report or the biennial
report on the state of the communications marketplace. I sought to
address the concerns of some members of this Committee with respect to
my involvement with Locast, so I crafted a temporary and narrow
voluntary recusal at the nexus of my involvement with Locast and my
personal participation in a 12-year-old Petition for Rulemaking seeking
changes to the retransmission consent regime. The concerns over my
involvement with Locast have nothing to do with the FCC's
Communications Market report or the report on the state of the
communications marketplace.
Regardless, if I am confirmed, and if this docket is moved forward,
I would seek advice from FCC ethics officials on my ability to
participate.
Question 4. On August 11, 2009, you entered a letter on broadband
data collections in WC Docket No. 07-38, WC Docket No. 08-190, GN
Docket No. 09-47, and GN Docket No. 09-51. In this letter you call on
the Commission to expand the broadband data it collects in its Form
477. Will you commit to recusing yourself from any proceedings
involving broadband data collection to avoid an appearance of
impropriety? If not, please characterize your advocacy in these dockets
and distinguish it from your filing in another docket a year later that
you have determined requires your recusal.
Answer. No, I will not recuse myself from any proceedings involving
broadband data collection. I sought to address the concerns of some
members of this Committee with respect to my involvement with Locast,
so I crafted a temporary and narrow voluntary recusal at the nexus of
my involvement with Locast and my personal participation in a 12-year-
old Petition for Rulemaking seeking changes to the retransmission
consent regime. The concerns over my involvement with Locast have
nothing to do with the broadband data collection.
Regardless, if I am confirmed, and if this docket is moved forward,
I would seek advice from FCC ethics officials on my ability to
participate.
Question 5. On February 28, 2008, you filed reply comments in the
Matter of the Petitions of Free Press Et al. for Declaratory Ruling,
Vuze, Inc. to Establish Rules Governing Network Management Practices by
Broadband Network Operators, Broadband Industry Practices, and
Commercial Availability of Navigation Devices; WC Docket No. 07-52, CS
Docket No. 97-80. In the reply comments you take a firm position on
nondiscrimination and disclosure by Internet providers. Will you commit
to recusing from future proceedings regarding network management
practices by broadband network operators to avoid an appearance of
impropriety? If not, please characterize your advocacy in these dockets
and distinguish it from your filings in another docket in 2010 that you
have determined requires your recusal.
Answer. No, I will not recuse myself from any proceedings involving
network management practices by broadband network operators. I sought
to address the concerns of some members of this Committee with respect
to my involvement with Locast, so I crafted a temporary and narrow
voluntary recusal at the nexus of my involvement with Locast and my
personal participation in a 12-year-old Petition for Rulemaking seeking
changes to the retransmission consent regime. The concerns over my
involvement with Locast have nothing to do with the network management
practices by broadband network operators.
Regardless, if I am confirmed, and if this docket is moved forward,
I would seek advice from FCC ethics officials on my ability to
participate.
Question 6. Your voluntary recusal was predicated on the basis that
it was done ``to avoid any appearance of impropriety and in interest of
ensuring that the public has full confidence that policymakers will
make decisions free of bias.'' If you believe that none of the above
listed filings warrants a recusal, how can you assert that none of
these other filings call into question your ability to be an impartial
decision maker? Please explain.
Answer. My voluntary recusal was crafted narrowly to address a
specific concern to some members of this Committee with respect to my
involvement with Locast. None of these other issues has any
relationship to my involvement with Locast.
Moreover, I have never asserted that my involvement with Locast or
my prior personal participation in a Petition for Rulemaking requesting
changes to the retransmission consent regime ``call[ed] into question
[my] ability to be an impartial decision maker.'' Nor have the ethics
officials who have twice reviewed my finances, my business
relationships, and my participation in FCC proceedings made such a
determination.
Question 7. If the motivation for your recusal was, as you say, to
address the concerns expressed about Locast by members of the
Committee, then why did you not consult with me or with the other
Senators who raised those concerns regarding the scope and nature of
your recusal?
Answer. I would have been happy to meet with any member of the
Committee to discuss the settlement agreement on a confidential basis
and have offered several meetings to many members of this Committee.
Question 8. Please provide a complete list of all individuals who
provided input on your recusal letter.
Answer. I drafted the recusal letter myself and did not seek any
input.
Question 9. If confirmed, do you commit to reporting back to this
committee regarding your consultation with FCC ethics counsel when
deciding whether to recuse yourself on matters before the FCC?
Answer. Yes.
______
Response to Written Questions Submitted by Hon. Mike Lee to
Gigi B. Sohn
Question 1. In several of the responses that you provided in the
first round of QFRs, you noted that your main concern with the 2017
repeal was the abdication of FCC ``oversight'' rather than the loss of
the ``bright line rules''.
1. How do you define FCC ``oversight'' in this area?
2. Does ``oversight'' include the 2015 ``general conduct'' standard
or maybe the 2011 ``unreasonable discrimination'' standard?
Both terms are fairly vague. Are there any limitations to what
the FCC could (at their discretion) enforce in the broadband
market under these standards?
Answer. By ``oversight,'' I mean the legal authority to protect
consumers and competition in the broadband market. As I wrote in my
responses to the first round of QFRs, I have been critical of the
general conduct standard in the past. In an October 2020 paper, I
stated that the general conduct standard was ``too vague and
complicated'' and urged that it be replaced with a simple
``unreasonable discrimination'' standard similar to that adopted by the
FCC in 2011. The unreasonable discrimination standard is guided and
limited by FCC and court precedent interpreting similar language in
Section 201 of the Communications Act. FCC action enforcing this
standard is also limited by the requirement of the Administrative
Procedure Act that any decision be supported by the record of a
proceeding.
Question 2. In your first round of QFRs, I asked why you supported
state/local government operation of a broadband network, but not the
Federal government's operation of a broadband network. In your answer,
you noted you have not seen compelling evidence that a ``nationalized
5G network'' would produce the same benefits as state/local operation.
I didn't ask about a specific ``nationalized 5G network'' in my
questions. I asked about Federal ownership/operation of a broadband
network. If you believe that state/local governments should compete as
competitors in the broadband market, then why do you draw the line with
the Federal government as another competitor in the broadband market?
Answer. At the first hearing, you specifically asked whether I
supported a ``federally owned 5G network'' and I indicated I did not
support such a proposal. As noted in my previous questions for the
record, I do support community broadband networks because they foster
competition and choice, two core values that have guided my career. I
do not believe there is any difference between a ``federally owned 5G
network,'' a ``federally owned/operated broadband network,'' or a
``nationalized 5G network''--any of those Federal options would not
catalyze competition or choice.
As previously noted, the real-world evidence in favor of community
broadband is compelling. Municipal networks have connected unserved
rural communities, driven down incumbent prices, and created jobs. For
example, a recent study found that Chattanooga's municipal network
generated $2.69 billion in economic activity and created 9,516 jobs
over the past decade.\11\ I have not seen compelling evidence
demonstrating similar benefits from a nationalized or federally owned
5G network.
---------------------------------------------------------------------------
\11\ See Bento J. Lobo, Ph.D., CFA, Ten Years of Fiber Optic and
Smart Grid Infrastructure in Hamilton County, Tennessee (August 31,
2020) (https://assets.epb.com/media/Lobo%20-
%20Ten%20Years%20of%20Fiber%20Infrastructure%20in%20Hamilton%20County%20
TN_Pub
lished.pdf).
---------------------------------------------------------------------------
Moreover, my advocacy for community broadband is rooted in the
belief that local governments should have the option to invest in their
own broadband infrastructure if they so choose. A nationalized or
federally owned 5G network would not empower local governments in this
manner.
Question 3. Federal officials are held (or supposed to be held) to
high ethical standards for the positions that they hold. The U.S.
Office of Government Ethics notes that even concerns that appear to
show partiality are sufficient to justify recusal so as to avoid the
appearance of favoritism in government decision-making.\12\
---------------------------------------------------------------------------
\12\ U.S. Office of Government Ethics, A Refresher on the
Impartiality Rule, January 25, 2017; https://www.oge.gov/web/oge.nsf/
Resources/A+Refresher+on+the+Impartiality+Rule
1. Given your lengthy career and the positions that you've publicly
taken, is there any scope of ``appearance concerns'' that the
Office of Government Ethics speaks of that you also believe
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would justify your recusal?
2. It's well documented the positions that you've taken, the tweets
that you've publicly made that even denigrate certain
viewpoints. How can we trust that you will govern impartially
and fairly for all parties?
Answer. Other than my personal participation in a 12-year-old
Petition for Rulemaking, I do not have any other appearance concerns. I
also have voluntarily recused from certain issues at the nexus of my
involvement in Locast to address the concerns of certain members of the
Committee. It is important to note that my participation in proceedings
involving certain specific parties with which I have a covered
relationship as a Board member or employee is already limited as part
of my February 1, 2022 ethics agreement (including the Biden ethics
pledge) pursuant to the impartiality regulation at 5 CFR Sec. 2635.502
(d).
Like many prior nominees for FCC Commissioner positions, including
many who have worked for the industries they then regulated, I have
taken public positions on many communications policy issues in my role
as a public advocate. In my role as a policymaker, however, I am bound
by the law to decide matters based upon and supported by the record of
a particular proceeding. My prior positions are irrelevant. If the FCC
makes a decision that is not supported by the record of a particular
proceeding, it is likely to be reversed by the Federal courts of
appeal.
______
Response to Written Questions Submitted by Hon. Ron Johnson to
Gigi B. Sohn
Question 1. During your tenure at Public Knowledge, the
organization filed over 1,100 public comments at the FCC and filed and
opposed multiple petitions, many signed by you. Yet, your recusal
letter only focuses on one particular docket regarding retransmission
consent rules then more broadly, retransmission consent and television
broadcast copyright issues.
1. Why did you limit your recusal to those two issues and that
particular docket?
2. Why did you choose to not recuse yourself from all of the matters
on which Public Knowledge filed comments and petitions,
including the ones signed by you?
Answer. As I testified at the February 9 hearing, I was trying to
address the concerns of some members of this Committee with respect to
my involvement in Locast, so I crafted a temporary and narrow voluntary
recusal at the nexus of my involvement with Locast and my personal
participation in a 12-year-old Petition for Rulemaking seeking changes
to the retransmission consent regime.
I relied upon precedent involving former Chairman Kennard, who
voluntarily recused himself from a fairness doctrine related docket
because he had signed a Petition for Rulemaking as an NAB intern many
years before. I had signed a Petition for Rulemaking seeking changes to
the retransmission consent regime, and the docket remains open, so I
have voluntarily offered to recuse myself for a limited period from
issues emanating from that petition.
By contrast, ISPs are asking for wide ranging recusals not tethered
to anything and without precedent. They are basically saying that I
should be recused from everything and anything I have ever advocated
for or against. Imagine the implications of that--anyone, whether they
be in private practice, working for a corporation, an academic or a
public interest advocate, would have to recuse themselves from any
matter on which they've taken a position on, whether or not they were
representing specific clients. The result would be an FCC populated by
members with no background in communications law and policy. That is a
result that I do not believe that anyone wants.
Question 2. In your recusal letter, you said you would make these
recusals to avoid ``any appearance of impropriety'' and ``in interest
of ensuring that the public has full confidence that policymakers will
make decisions free of bias.'' Your many tweets attacking Fox News,
Sinclair, and Republicans show a strong bias against conservative media
and viewpoints. For example:
Tweet from Oct. 28, 2020: ``For all my concerns about
#Facebook, I believe that Fox News has had the most negative
impact on our democracy. It's state-sponsored propaganda, with
few if any opposing viewpoints. Where's the hearing about
that?''
Tweet from Nov. 6, 2020: ``So do you still want me to believe
that social media is more dangerous to our democracy than Fox
News?''
Tweet from Apr. 2, 2018: ``Sinclair is forcing its news anchors
2 repeat the same anti-media script. This alone is reason-
enough 4 @FCC & @TheJusticeDept 2 block its merger w Tribune.''
Tweet from Apr. 4, 2018: ``Don't forget that Sinclair has a
major merger pending in front of @FCC & @DoJ that would allow
it 2 own an unprecedented 233 broadcast stations & reach 72
percent of American households. For this & other reasons, it
must be stopped.''
Tweet from Oct. 18, 2018: ``This, and its lack of candor during
the failed merger with Tribune, calls into question Sinclair's
fitness to be a broadcast licensee. Will @FCC do anything when
Sinclair's licenses are up for renewal?''
Tweet from Apr. 9, 2019: ``For a party that is so freaked out
about ``government control of the Internet, House Rs are really
eager to regulate websites & other online services.
#NetNeutrality#SaveTheNet'' Tweet from Oct. 30, 2020: ``This is
an outrage. Republicans know that the only way they can win is
to suppress the vote.''
In light of your public statements, why did you choose not to
recuse yourself from media ownership rules or media mergers?
Answer. My voluntary recusal was crafted narrowly to address a
specific concern to some members of this Committee with respect to my
involvement with Locast. The concerns over my involvement with Locast
have nothing to do with media ownership or media mergers.
I have explained in both of my confirmation hearings and previous
QFRs that my tweets and other statements were made in a different role,
that of a public advocate. As someone who previously served at the FCC,
I understand that if I am confirmed, my role and responsibilities as a
policymaker will be much different--I would be bound by the law to
decide matters based upon and supported by the record of a specific
proceeding. If the FCC makes a decision that is not supported by the
record of a particular proceeding, it is likely to be reversed by the
Federal courts of appeal.
In this way, my role is no different than the many nominees that
have come before this Committee who have worked for regulatees,
represented them as clients or served on their boards. Others have been
academics and Hill staffers. Many of them took very public positions on
a variety of communications policy issues either in their own name or
on behalf of their employers, their trade association members or
corporate clients, yet none of them received the kind of scrutiny that
I have received because I am a consumer advocate. I simply ask to be
held to the same standard that they were.
______
Response to Written Questions Submitted by Hon. Shelley Moore Capito to
Gigi B. Sohn
Question 1. Ms. Sohn, you signed a required new Ethics Agreement
letter on February 1st to accompany the updated financial disclosure
documents which were submitted to the committee in tandem with your re-
nomination. This new Ethics Agreement letter does not include the
language or terms set out in your January 27th letter to FCC officials
which you describe as a ``voluntary recusal.''
1. Why didn't you include the terms of your self-described
``voluntary recusal'' regarding retransmission consent and
television broadcast copyright issues in your required February
1st Ethics Agreement letter?
2. The February 1st letter begins by stating that one purpose of the
letter ``is to describe the steps that [you] will take to avoid
any actual or apparent conflict of interest.'' Isn't your
January 27th ``voluntary recusal'' letter specifically designed
``to avoid any appearance of impropriety and in interest of
ensuring that the public has full confidence that policymakers
will make decisions free of bias?''
Answer. The voluntary recusal is separate and distinct from the
Federal statutes and rules that the ethics agreement covers.
Specifically, the ethics agreement relates to 18 U.S.C. Sec. 208 and
Section 4(b) of the Communications Act, both of which govern actions
related to financial interests. It also covers 5 C.F.R.
Sec. 2635.502(d) which relates to matters involving prior employers.
The February 2, 2022 letter to the Committee from the FCC's General
Counsel that conveys my ethics agreement notes that, after conferring
with the Office of Government Ethics (OGE), the voluntary recusal
letter was not included in the updated ethics agreement.
Question 2. Does your January 27th ``voluntary recusal'' letter
remain valid and binding, or has it been superseded by the February 1st
letter?
Answer. As noted at the February 9 hearing, I committed to abide by
the voluntary recusal as outlined in my January 27 letter to the FCC's
General Counsel.
Question 3. Are you free to withdraw your January 27th ``voluntary
recusal'' letter, since it was not included in the required February
1st Ethics Agreement letter?
Answer. As noted above, the January 27 voluntary recusal letter is
separate and distinct from the February 1 ethics agreement and it could
be withdrawn.
Question 4. How can the committee be assured that you will adhere
to your voluntary recusal letter if it is non-binding?
Answer. As noted at the February 9 hearing, I have no intention of
withdrawing my voluntary recusal and would only do so after consulting
the appropriate ethics officials.
______
Response to Written Questions Submitted by Hon. Rick Scott to
Gigi B. Sohn
Question 1. In your response to my written Questions for the Record
in your last confirmation hearing, you stated that you do not believe
the government should regulate Internet rates.
However, you indicated in a tweet in 2020 \13\ that the FCC had the
authority to mandate low cost broadband plans--that sounds like rate
regulation to me. Why has your position on Internet rate regulation
changed?
---------------------------------------------------------------------------
\13\ https://twitter.com/gigibsohn/status/
1241484999326662660?s=20&t=jTZyvrZ97OpTgLmvk
XGJPA
---------------------------------------------------------------------------
Answer. My position has not changed. As I have now testified at
both hearings and stated in my previous QFRs, I do not think that the
FCC should set rates for broadband--it is something that the agency has
tried in the past with respect to cable and it was not successful.
However, and as this tweet indicates, I do believe that the FCC should
have the authority to require an ISP to provide a low-cost broadband
service to low-income individuals and families, particularly if those
ISPs obtain funding from the Federal government. It is well established
that the Federal government can require public benefits in exchange for
public funding. Rust v. Sullivan, 500 U.S. 173 (1991). What I have not
called for is for the FCC to set the rates for those low-cost tiers.
______
Response to Written Questions Submitted by Hon. Cynthia Lummis to
Gigi B. Sohn
Question 1. On November 16, 2017, you argued in a tweet that a
bipartisan group of Senators who asked the FCC to investigate waste,
fraud, and abuse in the Lifeline program were really asking the FCC to
``destroy [Lifeline] & vilify poor people.'' Do you believe it would
``vilify poor people'' for the FCC to ensure there is no waste, fraud,
or abuse in the Lifeline program?
Answer. No, I do not believe that it would ``vilify poor people''
for the FCC to ensure there is no waste, fraud, or abuse in the
Lifeline program. To be clear, the tweet to which you refer was not
criticizing the bipartisan group of Senators who asked the FCC to
investigate waste, fraud and abuse in the Lifeline program. It was
criticizing the then-FCC's proposal that, among other things, proposed
to: (1) weaken the Lifeline program by making it much harder for
individuals to apply and receive Lifeline funds; and (2) eliminate a
class of Lifeline provider (non-facilities based) that made up 75
percent of the carriers that provided Lifeline service. At the time, I
believed that there was far more focus by the FCC on the behavior of
low-income recipients of Lifeline funds than on the behavior of the
companies providing that service.
Question 2. Do you believe it would ``vilify poor people'' for the
FCC to ensure there is no waste, fraud, or abuse in the Affordable
Connectivity program?
Answer. No. As I answered previously in response to Senator Thune's
question, I support the recent Commission action to implement the
Affordable Connectivity Program (ACP), including the provisions
designed to help prevent waste, fraud, and abuse in the program. I
supported the Congressional decision to require use of the National
Verifier in the ACP's predecessor program, and agree with using the
National Verifier for the ACP. Ensuring that the states provide the
necessary data to complete the National Verifier and that consumers can
easily use the Verifier in order to take advantage of the ACP and other
USF programs is essential. I also agree that the Commission should take
all necessary steps to prevent waste, fraud, and abuse in the program.
Question 3. In both of your appearances before the committee you
expressed regret for the sharp language used in some of your tweets,
but explained that the tweets were sent as part of your role as a
public interest advocate. What part of your job as a public interest
advocate required such partisan rhetoric?
Answer. It is difficult for me to respond to this question without
seeing the tweets in question. To the extent that you are referring to
the tweets about Fox News (for which I expressed regret for my sharp
language), those were not ``partisan.'' As I said in both hearings and
in these and previous QFRs, my tweets about Fox News were made as part
of a series of discussions around hearings concerning big tech
platforms and their role and responsibility to moderate content on
those platforms, including political misinformation and disinformation.
I was arguing that if Congress wanted to get the full picture of the
impact of misinformation on our democracy, it should also look at
misinformation on mainstream media.
To the extent that I was critical or praiseworthy of members of
Congress of both parties, it was in the context of policy debates.
Question 4. At multiple points in your testimony, you said that Fox
News is not subject to FCC regulation as a reason why your ``sharp''
statements about Fox News should not be of concern to the Committee,
but isn't it true that Fox News could be a complainant in a program
carriage proceeding at the FCC? Contrary to your testimony, haven't
program carriage proceedings regularly been ultimately decided by the
full Commission-including those involving Herring Broadcasting, Tennis
Channel, and Game Show Network? How do you square these facts with your
testimony that Fox News isn't regulated by the FCC?
Answer. Numerous parties, including individual members of the
public, can be complainants in any number of FCC matters. That they are
able to do that does not make them regulated entities. You are correct
that Fox News can file a program carriage complaint. But that does not
make it an FCC-regulated entity.
______
Attachment A
Response to Senator Wicker Question 40 and Senator Sullivan Question 7
Answer. In my role as a public advocate, I have given hundreds of
press interviews, appeared on electronic and online media scores of
times, written dozens of published articles, given dozens of speeches
and tweeted thousands of times. Below is a list of the requested
information which I have compiled to the best of my ability given my
long career and prolific public statements.
1. Taking you up on your offer, please list each instance in which
you have publicly (e.g., over Twitter, in writing, interviews,
speeches, etc.) criticized Democrats.
Maryland State Delegate Kumar P. Barve (Dist. 17)
Music City Blues (August 21, 2006)
Representative Howard L. Berman (D-CA)
Public Knowledge's President Reacts to Peer-to-Peer
Self-Help Bill (July 25, 2002)
Nov 28,2012: Praise 4 Rep. Berman at #IRFA hearing. As
much as I won't miss his positions on #copyright, I will
miss tussling w. him at hearings.
Nov 09, 2012: Forget about #Netfreedom if Berman
becomes Secretary of State: http://bit.ly/PJsI5k
Jun 25, 2012: I tell people about the Berman P2P bill
when they insist that #SOPA and #PIPA will never return.
Hollywood never forgets or gives up.
Jun 25, 2012: @sivavaid @xor @CopyrightLibn @khtasker
@itsme2020 it was my 1st time testifying 4 PK. Rep. Berman
tried 2 rip me a new one. He didn't.
Biting the Hand that Fed Him (May 1, 2006)
Joseph R. Biden, current President of the United
States, Former Vice President of the United States, Former
U.S. Senator (D-DE)
Public Knowledge Disappointed with White House
`Piracy' Meeting (December 15, 2009)
Representative John Conyers (D-MI)
Anti-open access bill a real head-scratcher (February
9, 2009)
Senator Chris Coons (D-DE), Barbara Boxer (D-CA) &
Jeff Bingaman (D-NM)
Jan 18, 2012: Shame on Sens. Coons, Boxer & Bingaman 4
continuing to support #PIPA: http://t.co/wNeD9Ypr #SOPA
#stopsopa
Former New York Governor Andrew Cuomo
June 26, 2019: RT @ZerlinaMaxwell: White Democrats
need to stop this performative smack down of @aoc based on
things SHE DID NOT SAY. It's not a good look.
Congressional Democrats
Aug 27, 2018: RT@IndivisibleTeam: It is STUNNING that
there are two dozen Democratic Senators who are still
undecided about Brett Kavanaugh's confirmation. Tell your
Senator to #StopKavanaugh
June 11, 2012: .@DarrellIssa beats up on the Sony Bono
#copyright act for extending ``black & white'' copyrights
too long. Et tu Democrats? #PDF12
Jan 18, 2012: Democrats! Republicans are kicking your
butts on #SOPA & #PIPA: the future (and the present) is the
Internet. Time 2 give up Hollywood $$.
Sep 15, 2011: Blue Dogs, very poor showing 4
#attmobile. #KRT @dandhicks: Not so fast: House Democrats
want DOJ to settle with AT&T. http://t.co/C7SQpTfh
Public Knowledge Comment on Latest Misleading
Congressional Letter (May 28, 2010)
Rep. Anna Eshoo (D-CA)
Feb 13, 2019: I love you @RepAnnaEshoo & I agree with
you on most things, but you are just flat out wrong about
the #TMobileSprint merger. Have you read what your
colleagues in the Senate are saying? https://blumenthal
.senate.gov/imo/media/doc/
Tmobile%20Sprint%20Letter%20to%20FCC.pdf
Senator Dianne Feinstein (D-CA)
Public Knowledge Disappointed with PERFORM Act
(January 12, 2007)
Preparing for the 110th (January 5, 2007)
Recording Rights Under Attack (Again) (April 21, 2006)
Billzapoppin' (April 5, 2006)
Julius Genachowski, former Chairman of the Federal
Communications Commission
Nov 21, 2017: Replying to @BerinSzoka and @FCC: You
can't possibly be blaming me for Genachowski. That's very
funny.
FCC's Chief Hires a Critic of the Agency (November 4,
2013)
FCC Chairman Genachowski to Step Down (March 22, 2013)
The Next FCC Chair: Decisive Protector of the Public
Interest (March 19, 2013)
FCC Out to Lunch Presentation to Personal Democracy
Forum (June 13, 2012)
Head of Consumer Group Takes on Net Neutrality Plan
(December 15, 2010)
Barking up the wrong tree on net neutrality (Sept. 21,
2010)
Dec 21, 2010: Genachowski leads with transparency.
That cannot possibly be the most impt. part of the
#netneutrality rules. #FCC #oir.
Dec 21, 2010: Genachowski once again blesses tiered
pricing in a sop to cable. #netneutrality #FCC #oir
Representative Joseph Heath Shuler (D-NC)
Public Knowledge Statement on Congressional Letter
regarding AT&T Takeover of T-Mobile (September 15, 2011)
Representative Ruben Hinojosa (D-TX) & Representatives
George Miller (D-CA)
Act Now! House Sneaks Higher Ed Filtering Requirement
in 750 Page Education Bill (November 12, 2007)
Representative Henry C. ``Hank'' Johnson, Jr. (D-GA)
May 16, 2013: Johnson notes absence of ``writers'' fr.
#copyright principles proj. Profs Samuelson & Gassaway must
be surprised 2 hear they're not writers.
William Earl Kennard, former Chairman of the Federal
Communications Commission
Oregon, Past and Present, A Model for the Nation on
Broadband Policy (October 26, 2012)
Rep. Joe Kennedy (D-MA)
August 26, 2020: .@CharlesPPierce really explains it
here. What is Kennedy's rationale for running? If it's that
he needs to leapfrog @AyannaPressley, that's a poor reason
to divert time and resources from the D's taking over the
Senate.
August 26, 2020: The question 4 me is why, in a year when if
g-d forbid Trump wins, the only thing protecting our Republic
is the Ds taking over the Senate, is why Joe Kennedy feels the
need 2 run this year, diverting resources from battleground
Senate races 2 a primary race that isn't necessary.
Feb. 19, 2020: RT @esquire: If you can figure out why we
should turf out a progressive of Markey's caliber based on
Kennedy's fog of words Tuesday night, you're a hell of a lot
smarter than I am says @CharlesPPierce
August 17, 2019: Say it ain't so @JoeKennedy!
Senator Patrick J. Leahy (D-VT)
Nov 19, 2010: @polisoniccom: Thank you, I agree and have
been working with Leahy staff to find that balance. Not there
yet in this bill.
Nov 02, 2010: Another big loss for copyright moderates: Russ
Feingold. Was friend on Leahy bill to block ``rogue'' websites.
Barack Obama, Former President of the United States
Mar 29, 2013: It's time 4 Prez @BarackObama 2 deliver on his
promise of a more open & diverse communications system: http://
bit.ly/10n7xXS
Aug 7, 2011: MUST READ: Drew Westen on the stories &
messages President Obama should have delivered on the financial
crisis: http://nyti.ms/pRnBFq
Jun 26, 2011: Cuomo: passing same -sex marriage ``is at the
heart of leadership & progressive government.'' Are you
listening President Obama?
Oct 20, 2010: Pls. explain to me why the Obama admin.
continues to fight to uphold DADT. Gov't doesn't have to defend
laws it believes are unjust.
Oct 15, 2010: Prez says something (sort of) about LGBT
bullying, but not enough: RT @HilliconValley: Obama addresses
online bullying http://bit.ly/bdG0t3
Oct 15, 2010: When is Prez Obama going to speak out on anti-
gay bullying and suicides? He's gone public on far more mundane
matters.
Mar 12, 2010: Disappointing: Obama shows support for ACTA:
http://bit.ly/c44Lji. But the way he describes it doesn't make
sense.
Obama Administration
For the Justice Department-RIAA Connection, the Fifth Time
is not the Charm (May 17, 2009)
Updated: The Fifth Time is Not the Charm (April 14, 2009)
IP Appointments, Time for Some Balance: Updated (Feb. 9,
2009)
Public Knowledge: ACTA Draft Favors Big Media Companies.
(April 21, 2011)
Public Knowledge Criticizes New Trade Report (April 30,
2010)
Jun 22, 2010: ACT NOW! Tell the Obama Administration what
you think of #ACTA: http://bit.ly/b6xdXu PK thinks it's bad for
free speech, economy.
Obama FCC (generally)
Aug 20, 2010: PK's @artbrodsky on how little the Obama #FCC
has accomplished: http://bit.ly/dokuWD
Public Knowledge Disappointed with FCC Broadband Plan
(December 16, 2009)
Who's Running the Show--the FCC or Hollywood Execs?
(September 21, 2009)
Maria Pallante, former United States Register of
Copyrights
Public Knowledge Disappointed with House Intellectual
Property Hearing (November 16, 2011)
Senator Harry Mason Reid Jr. (D-NV)
School Yard Bully Entertainment Industry Now Picking on
Higher Education (July 30, 2007)
Andrew Yang (Candidate for President of the United
States)
2/27/2020: RT: Matthew Feeney: Has Yang spoken to anyone who
thinks about privacy for a living? This is almost a universally
rejected approach for a reason. It's not a new idea.
11/18/2019: RT TechDirt: Andrew Yang's Horrible, No Good
Very Bad Tech Policy
2. Please quantify how many times in the past five years that you
have publicly praised Republican elected officials versus praised
Democrats.
Over the past five years I publicly praised Republican elected
officials in approximately 326 tweets versus praising Democrats in
approximately 1535 tweets.
3. Please quantify how many times in the past five years you have
publicly criticized Republican elected officials versus criticized
Democrats.
Over the past five years, I publicly criticized Republican elected
officials in approximately 247 tweets and criticized Democrats in
approximately 10 tweets. 180 of the 247 tweets criticizing Republican
elected officials focused on former President Trump.
4. Please identify with specificity any Democrats you criticized
and any Republicans you praised during the past five years.
Senator Shelley Wellons Moore Capito (R-WV)
Senator Susan Collins (R-ME)
Senator John Cornyn (R-TX)
Senator Lindsey Graham (R-SC)
Senator Josh Hawley (R-MO)
Senator John Kennedy (R-LA)
Senator Jerry Moran (R-KS)
Senator John McCain (R-AZ)
Senator Lisa Murkowski (R-AK)
Senator Rob Portman (R-OH)
Senator Mitt Romney (R-UT)
Senator Ben Sasse (R-NE)
Senator Dan Sullivan (R-AK)
Senator John Thune (R-SD)
Senator Roger F. Wicker (R-MS)
Senator Todd Young (R-IN)
Representative Anna Eshoo (D-CA)
Representative Ken Buck (R-CO)
Representative Darrell E. Issa (R-CA)
Representative Joe Kennedy (D-MA)
Representative Steve Scalise (R-LA)
Representative Greg Walden (R-OR)
Julius Genachowski, Former Obama FCC Chairman
Andrew Yang, Former Democratic Candidate for President of the
United States
Brendan Carr, Republican FCC Commissioner
Nathan Simington, Republican FCC Commissioner
Ajit Pai, Former FCC Chairman
Michael O'Rielly, Former Republican FCC Commissioner
Andrew Cuomo, Former Democratic Governor of New York
Ken Paxton, Republican Attorney General of Texas
[all]