FCC nomination logjam needs to end

Leave it to the United States Senate to get bogged down over what should be a routine appointment of a federal agency bureaucrat. That’s the nature of political polarization these days, as the Senate grapples with the confirmation process of President Biden’s nominee to the Federal Communications Commission, Gigi Sohn. Of course, Biden did the Senate no favor when he nominated Sohn, a lightning rod for Republican senators.

Biden’s delayed nomination was also a misstep; it wasn’t offered to the Senate until October, ten months after Biden entered the White House. That delay was quite a statement about the administration’s lack of priority for a key appointment.

The Senate Commerce Committee advanced Sohn to the full Senate for a final decision way back in March, but only with a 14-14 vote, not surprisingly along partisan lines. Since then, Sohn’s confirmation has been held up in bureaucratic wrangling.

Sohn would seem to be an ideal candidate for an FCC vacancy, having served as a legal counselor to FCC Chair Tom Wheeler during the Obama administration. She co-founded and headed up Public Knowledge, an organization advocating for consumers on technology issues. She has served as an adjunct law professor at Georgetown. She has the backing of a number of tech organizations and the Parents Television Council.

Despite the seemingly stellar resume, Sohn brought some baggage to the nomination process. The Fraternal Order of Police opposes Sohn based on her Twitter activity, perceived as unsupportive of law enforcement. Other tweets have attacked former President Trump, and referred to Fox News Channel as having a “negative impact on our democracy” and being a source of “state-sponsored propaganda.” Such public comments, even on social media, scare GOP senators from supporting Sohn. It’s also unclear at this point if Sohn even has the support of all Democratic senators.

The broadcast industry is wary of Sohn because she was a board member of Locast, a streaming app that carried broadcast television content. Broadcasters sued for copyright violations and won a permanent injunction against Locast, shutting the service down.

The comments about Fox raise fears of bureaucratic censorship. While the FCC really has little direct avenue in which to control content in media, the statements create a bad partisan optic for somebody who could be on a regulatory commission.

This open seat means the FCC has only four of its normal five members. Two are Trump Republican nominees and two are Democrats, including Chair Jessica Rosenworcel, who was nominated by Biden and confirmed easily by the Senate last December. The Trump appointees have differing views than the Democrats on matters such as media ownership and net neutrality, which would leave deadlocked votes on any major communications policy initiative of Rosenworcel or the White House. Thus, FCC policy trains are pretty much stalled on the tracks, which is the whole point for GOP senators holding up Sohn’s confirmation.

Needless to say, it is time to get the FCC trains moving again.

Barring an unforeseen breakthrough with GOP senators, it is time for Sohn to step aside or for the White House to withdraw her nomination and offer an alternative nominee. Otherwise, the FCC will be left stalled with a 2-2 membership, meaning only the most routine agency actions will move forward.

Time is running out fast to have an alternative nominee processed and confirmed. Senate recesses during the summer, not to mention the distraction of midterm elections, complicate the timing. An expedited schedule won’t be easy, but things won’t be any easier in the future, particularly if the GOP takes control of the Senate after the midterms. Trump’s last-minute FCC nominee, Nathan Simington, was nominated in September 2020, had his hearings in November of that year, and was confirmed in December, 2020.

Surely, the White House can provide a suitable nominee who wouldn’t raise automatic red flags from the opposition party, not to mention law enforcement and the broadcast industry.

In the hyper-partisan world that is today’s Senate, any nominee might be dismissed in partisan bickering, but the Sohn nomination made it too easy for that bickering to stall everything.

Jeffrey M. McCall is a media critic and professor of communication at DePauw University. He has worked as a radio news director, a newspaper reporter and as a political media consultant. Follow him on Twitter @Prof_McCall.