Sohn Agrees to Temporary Recusals Before Senate Commerce Vote

Democratic FCC nominee Gigi Sohn told the FCC Thursday she will, if confirmed, recuse herself during the first three years of her term “from any proceeding before the Commission where retransmission consent or television broadcast copyright is a material issue.” Sohn’s recusal pledge appears to be the result of negotiations with Senate Commerce Committee leaders aimed at securing support from all 14 Democrats before a planned Wednesday panel vote to advance her nomination to the full chamber, lobbyists told us. Some panel Republicans pressed for concessions from Sohn over ethics concerns about her role as a board member for Locast operator Sports Fans Coalition (see 2201130071).

Senate Commerce’s vote on Sohn will be just one of three telecom policy meetings on Congress’ agenda next week. The House Transportation Aviation Subcommittee plans a Feb. 3 hearing on the aviation safety implications of commercial wireless operations on the C band. Commerce Secretary Gina Raimondo will testify at a planned Tuesday Senate Appropriations Commerce Subcommittee panel on how to implement $48 billion in broadband money under the Commerce Department’s control from the Infrastructure Investment and Jobs Act.

“While I am not required by my” Oct. 26 ethics agreement “to recuse myself from that docket or from any other matter where retransmission consent or television broadcast copyright is a material issue in the Commission’s disposition of a proceeding, 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, I voluntarily agree” to the temporary recusal on retrans and broadcast copyright matters, Sohn wrote to acting FCC General Counsel Michele Ellison.

Sohn also pledged to recuse herself for the first four years of her term from participating in docket 10-71, citing her role as Public Knowledge head in 2010 when that group and 13 others petitioned the FCC in the docket to change how it handles retrans disputes (see 1007150079). Sohn noted her recusals don’t extend to not participating in the 1996 Telecom Act Section 202 rulemaking “or any other proceeding involving the Commission’s media ownership rules or any assignment or transfer of control of broadcast, cable, and satellite companies.”

Sohn didn't comment Thursday. Senate Commerce didn't immediately comment.

Confirmation Prospects

Sohn and Democratic FTC nominee Alvaro Bedoya are on the docket for Commerce’s executive session, as expected (see 2201250073), the committee said Wednesday. The panel will also vote on advancing CPB board Vice Chair Laura Ross and three other board nominees: MacArthur Foundation Director-Journalism and Media Kathy Im, CPB ex-member Elizabeth Sembler, and Sony Pictures Entertainment’s Motion Picture Group Chairman-CEO Tom Rothman. Also on the docket: Commerce undersecretary-economic affairs nominee Jed Kolko and Consumer Product Safety Commission nominee Mary Boyle. The meeting will begin at 10 a.m. in 253 Russell. Commerce advanced Bedoya (see 2112010043), Boyle and Kolko in December.

Senate Commerce member Kyrsten Sinema of Arizona, the lone Democrat on the committee still seen as undecided on Sohn, didn’t comment Thursday. Panel Chair Maria Cantwell, D-Wash., confirmed last week she hadn’t personally gotten word of Sinema’s intentions. “There were a couple” Democrats who previously “were unsure and then told me they were all good with” Sohn, Cantwell told reporters earlier this month.

Sinema’s backing is likely to be crucial to getting Sohn beyond the committee since all 14 panel Republicans are likely to vote against the nominee, Democratic aides and lobbyists said. The committee is likely to again tie 14-14 along party lines on Bedoya, lobbyists said. Tie votes on either nominee will mean Senate Majority Leader Chuck Schumer, D-N.Y., will need to hold a floor vote to discharge Commerce from further consideration of a nominee and bring them to the floor.

FCC Chairwoman Jessica Rosenworcel told reporters Thursday she looks forward to the commission having a full five-member complement. She sidestepped a question about how she rates Sohn’s confirmation prospects given unified GOP opposition. Sohn’s confirmation would shift the FCC from 2-2 to a 3-2 Democratic majority.

The Fraternal Order of Police repeated its opposition to Sohn Thursday. FOP “remains very concerned” by Sohn’s role as an Electronic Frontier Foundation member (see 2201040071) due to that group’s “forceful advocacy of end-to-end encryption and ‘user-only-access,’” National President Patrick Yoes said in a letter to Cantwell and Senate Commerce ranking member Roger Wicker, R-Miss. Sohn has “never moderated her extreme views on this subject” and “it is not surprising” she hasn’t “gotten any support from within the law enforcement community.” Yoes discounted three former FCC Public Safety Bureau chiefs’ endorsement of Sohn because they all served under Democratic administrations. “Democrats endorsing Democratic nominees is hardly news,” he said.

Senate Appropriations Commerce Chairwoman Jeanne Shaheen, D-N.H., wants the Tuesday broadband infrastructure money hearing with Raimondo to center on ensuring the $48 billion under Commerce control is “distributed as intended," Shaheen said in a statement. “There is bipartisan determination in Congress to enhance our high-speed internet capacity, and I believe we can continue to get important work done here.” The partly virtual hearing will begin at 2:30 p.m. in 192 Dirksen.

C-Band Hearing

FAA Administrator Stephen Dickson will testify at the House Transportation Aviation C-band hearing, the Transportation Committee said Thursday.

“I hope” Dickson and other to-be-announced witnesses from the wireless and aviation sectors “come prepared for a robust discussion about how the goal of a successful 5G deployment can co-exist with the safety of our skies,” said Transportation Chairman Peter DeFazio, D-Ore. “While the recent agreement by AT&T and Verizon to delay 5G deployment near certain airports” (see 2201180065) was “necessary, we are now seeing the operational impacts to airline travel. All interested parties must come together to address these impacts and implement long-term solutions that will increase safety and reduce disruptions for affected airports.” The partly virtual hearing will begin at 11 a.m. in 2167 Rayburn.

Rosenworcel defended the Biden administration’s handling of the C-band fracas, which allowed Verizon and AT&T to start turning on their holdings in the frequency for 5G. “I’m optimistic that 5G deployment can safely coexist with aviation technologies in the United States just because it does in other countries,” she told reporters Thursday. “We will continue to work with our counterparts at the Department of Transportation and the FAA to continue to make sure that takes place.”

Certainty is important in spectrum auctions, Rosenworcel said. “I continue to care about it,” she said: “We’ll have to make sure going forward that we can continue to guarantee it.” On other bands “we are going to have to engage in more coordination, early and often,” she said.

Administration Criticism

Commissioner Brendan Carr slammed the administration’s approach, during a news conference Thursday. “Where we’ve landed I don’t think is a good deal,” he said: “Right now, I can’t tell you what the deal was that was struck because I wasn’t in the room. I don’t think that’s a great way to do spectrum policy.”

“I’m concerned about a lot of negative consequences that can flow from this,” Carr said. “Some people have viewed this very myopically in terms of C band itself. … My macro concern here has to do with a lot of knock-on issues when you effectively incentivize rogue agency actions like this.”

The FCC could create uncertainty in bidding in future auctions, Carr said: “We’ve now seen a process in which you get that license from the FCC and you can’t operate pursuant the parameters of that FCC license. You may have to deal with the White House, over the weekend, behind closed doors. You may have to deal with another agency.” The White House “kind of opened up Pandora’s box” by saying “come in, let’s talk about it, let’s find a solution.”

GAO criticized NTIA’s spectrum coordination processes in a Thursday report and recommended the agency “align its spectrum reallocation-planning efforts with leading practices for program management.” NTIA should “document and disseminate to federal agencies policies and procedures describing how it collects and considers agencies’ views on spectrum-related matters to present the views of the executive branch to FCC,” GAO said. It recommended the agency assess whether there are “gaps in key occupations that manage federal spectrum use and develop and implement a plan to address any identified gaps.”

NTIA’s Redbook manual of regulations and procedures for spectrum management “only details requirements related to the transition activities after the decision-making process to identify a band for reallocation has concluded and FCC has provided the required 18-month prior notification of its intent to commence an auction,” GAO said. “The decision-making process to identify a spectrum band for reallocation can be lengthy, and NTIA officials told us that no other guidance exists for this portion of reallocation process.”

The Commerce Department “generally concurs” with GAO’s recommendations and believes the change would “formalize activities that we routinely do informally,” acting Chief Financial Officer Wynn Coggins said in a response attached to the report. But, “establishing more formal processes can require additional resources” and “may not be justified in terms of additional benefits.” That’s “particularly the case with spectrum management, inasmuch as the more difficult cases often present unique challenges that may require unique approaches,” Coggins said. “Resolving those difficult cases typically requires the cooperation and resources of the federal agencies that operate the systems that depend on the spectrum we manage but are outside of our control.”