A divided Senate Commerce Committee finally voted Thursday (March 3) along party lines to send the nomination of Gigi Sohn to the full Senate for a vote, a big step toward her ultimate confirmation. The vote was 14-14, which means the nominee can get a floor vote, but with no favorable or unfavorable recommendation.
The Federal Communications Commission has been at a 2-2 political tie for well over a year, so the tie vote to potentially break it was appropriate.
Sohn would be the fifth Democratic commissioner, giving the Biden administration the majority it needs to tackle some tough issues, including network neutrality and media ownership/equity.
Also reported in a partisan vote was a fifth Federal Trade Commission member, Alvaro M. Bedoya. The vote on Bedoya was also 14-14.
Committee chair Maria Cantwell (D-Wash.) said Sohn needed to be seated, in part because of the importance of the Administration's broadband priorities. Cantwell thanked all her colleagues for being there, which may have been a reference to reports that Republicans had considered not showing up to deny a quorum, and thus a vote, on Sohn.
Ranking member Roger Wicker (R-Miss.) said he could not vote for Sohn or Bedoya. He said he appreciated Sohn's responsiveness, but said she was not the right choice to fill the FCC vacancy because she would continue to have an appearance of a conflict of interest.
Sohn was nominated last year but had to be renominated in January after the committee Democrats were unable to secure enough votes, then her first vote had to be postponed after one of the committee Democrats — Sen. Ben Ray Lujan of New Mexico — suffered a stroke.
Lujan got a lengthy standing ovation when he entered the chamber for the meeting.
Also: Sohn Says Fox Criticism Does Not Extent to Viewers
Republicans have pushed back on her nomination over past criticism of Fox News Channel and her relationship to Locast, the shuttered streaming service that was found by a court not to be entitled under a copyright carveout from streaming TV station signals without having to ask permission or pay for the transmissions.
But her backers have suggested that internet-service providers were pushing back because they did not want the FCC to reinstate net neutrality rules, and Republicans were pushing back generally because they wanted to stall the Biden regulatory agenda until the midterms.
If the Republicans took over the Senate and House, they could nullify any FCC attempt to reinstate the rules, as they did to a privacy regulatory regime under Obama-era chairman Tom Wheeler.
Wicker took issue with Cantwell's phrasing of the nomination as being reported to the floor, saying only that the tie vote was being reported to the floor. Though Cantwell first said she thought that was the proper wording, she agreed that that technically constituted reporting a tie vote to the floor.
According to the Congressional Research Service, "a Senate majority can vote to discharge a committee from consideration of a matter, including a nomination, if it is not reported because of a tie vote in committee."
That means a Senate majority will first have to vote to discharge the nomination from committee consideration, then vote on the nomination, but both those things will almost certainly now happen.
It is unclear whether Sohn will get the Senate vote anytime soon. Sen. Thom Tillis (R-N.C.) has pledged more than once to put a hold on the nomination, though his office had not returned requests for comment on whether that hold was still going to be placed.
Consumer Technology Association president Gary Shapiro; Shirley Bloomfield, CEO of NTCA-The Rural Broadband Association; and three former heads of the FCC's Homeland Security Bureau, among others, had publicly endorsed Sohn.
Tillis, ranking member of the Senate Intellectual Property Subcommittee, had earlier asked President Joe Biden to withdraw Sohn‘s nomination, saying he had many concerns, but copyright was chief among them.
As head of Public Knowledge, Sohn had long advocated for fair use carveouts from copyright law and argued that content providers were being overprotective, but she has pointed out that the FCC is not in the business of regulating copyrights and, in any event, as a commissioner she would look at all issues on a case-by-case basis and rule accordingly.
Following the vote, Cantwell gave the Republicans a chance to talk, Sen. Ted Cruz (R-Tex.) extensively, about their opposition to the Sohn nomination.
Responding to that Republican criticisms, Cantwell said she did not think Sohn would engage in partisanship or censorship.
“At a critical moment in our nation’s history, Gigi Sohn and Alvaro Bedoya will bring sterling credentials, deep expertise, and an unrelenting commitment to consumer protection to their posts," said Sen. Ed Markey (D-Mass.), a member of the committee, following the vote. "The challenges facing consumers today are significant, and President Biden has chosen nominees that are up to the task. The American public deserves our best and brightest at the Federal Communications Commission and the Federal Trade Commission to accomplish pressing priorities, such as keeping the internet free and open, closing the digital divide, protecting online privacy, stopping scams, and promoting competition. I am proud to vote for Ms. Sohn and Mr. Bedoya, two eminently qualified nominees, and I look forward to their swift confirmation by the United States Senate.“
Joshua Stager, deputy director of New America's Open Technology Institute, urged the full Senate to take action.
"[I]t’s time for Majority Leader Schumer to get to work. He needs to schedule floor votes for Ms. Sohn and Mr. Bedoya immediately," he said. "The American people cannot afford to wait any longer. It’s been more than a year since we had a fully functioning FCC and FTC. These agencies oversee some of the nation’s most problematic companies, including AT&T, Comcast, and Facebook.” ■
