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‘Dark money’ and the never-ending election cycle kept a qualified consumer advocate out of the Federal Communications Commission
The Monday before Gigi Sohn withdrew her nomination to the Federal Communications Commission, she sat down in her Washington, DC, home with her wife and teenage daughter to finish drafting the statement announcing the decision.
Nearly 500 days had passed since President Joe Biden first picked her to become the third Democrat to the nation’s top telecommunications regulator, and she was nowhere closer to confirmation than when her name was first announced in October 2021. While other Biden nominees, like now Chair Jessica Rosenworcel, soared through the confirmation process, Sohn was met with a fierce opposition campaign traditionally saved for a president’s Supreme Court or cabinet nominees.
“I had written the withdrawal statement a year before,” Sohn told me over the phone in early June. Whenever a new rumor or attack against her came out in the pages of The Wall Street Journal or headlined a scathing Fox News segment, she’d dig that statement back up wondering whether it was enough to spook Senate Democrats against her.
Her nomination was supposed to be the crowning achievement of her 30-year career — and more importantly, a key piece of Biden’s plans for the internet. The covid pandemic had shown just how necessary improving internet access was across the US. Parents drove up to fast food restaurants for Wi-Fi so their kids could finish their remote schooling homework, and libraries became hubs for rental hotspots. The Biden administration’s goal was to finally bridge the digital divide, expanding access to high-speed broadband everywhere.
But by March 7th, Sohn knew it was over. After three nominations and three confirmation hearings that got nastier with each new iteration, the votes just weren’t there. Her opposition had read all of her tweets, found faults in nearly every position she ever held, and made up new problems when everything else wasn’t enough. Sohn herself felt like she’d been held at arm’s length, unable to respond to the smear campaign consuming her life and nomination.
Pulling out of the running no longer felt so difficult. Instead, the announcement would be an opportunity to speak up for herself, she thought. At least this withdrawal would be on her own terms.
Then, a day before that planned announcement, Sen. Joe Manchin sucked the air out of her plans. The centrist Democrat from West Virginia publicly opposed Sohn’s confirmation. “The FCC must remain above the toxic partisanship that Americans are sick and tired of, and Ms. Sohn has clearly shown she is not the person to do that,” Manchin said in a statement. “I urge the Biden administration to put forward a nominee who can bring us together, not drive us apart.” It was odd timing, Sohn thought — she had only notified the White House, the Senate Commerce Committee, and her family of her plans. If every other Democrat supported Sohn’s nomination, Manchin’s vote wouldn’t matter. But that didn’t stop him from hijacking her announcement.
The rug had been pulled from under her yet again.
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Sohn began her career in tech policy decades earlier — with a battle for access not online but on TV.
When Sohn graduated law school in 1986, the United States was undergoing a television programming revolution. The Reagan administration had unwound many of the regulations limiting cable adoption, disrupting the grasp that dominant roof-top antenna broadcasters like ABC, CBS, and NBC held over what people could watch in their own homes. Cable television’s promise of limitless, even conflicting programming offered a new lane for opening media ownership up to more groups. And with cable companies quickly taking over broadcast as the dominant programming providers, she saw an opportunity to seize the moment.
“I spent a good part of my early part of my career from the late ’80s to the mid-to-late ’90s trying to make broadcasting and cable more democratic,” Sohn said. “A lot of work in my early career was trying to diversify ownership of media, try and get cable to actually give meaningful access to differing voices.”
In 1988, she joined the Media Access Project (MAP), a public interest law firm devoted to diversifying media ownership. Founded in the 1970s, MAP’s early work focused on opening networks to ownership by civil rights and anti-Vietnam War activists. Starting in the 1980s, it pushed for a return to the Fairness Doctrine, a set of Reagan-abolished FCC rules that required broadcasters to present opposing perspectives on controversial issues. But as attempts to reinstate those rules failed, Sohn and her colleagues turned to pressuring the emerging telecom behemoths into hosting a variety of ideologically independent networks.
In the early 2000s, cable companies were getting an appetite for a new medium: broadband internet. Broadband had the potential to do everything cable TV had done and more.
“The internet comes along and changes everything,” Sohn said. “We go from top-down command-and-control media to this medium where anybody who could afford a connection has a voice.”
For one thing, access was wildly uneven. At the beginning of 2005, 32 percent of white Americans had access to broadband in the home, compared to 13 percent of Black Americans, according to Pew Research Center data. Around 58 percent of families making $75,000 a year had internet access at home at the time. Only 15 percent of households making less than $30,000 a year had comparable access.
For another, there was little stopping cable companies from shaping what content went online or how fast it was delivered. Broadband was classified as a Title I “information service” under the Telecommunications Act of 1996. Unlike a Title II common carrier, regulators had little clear authority to stop service providers from discriminating against the online equivalent of upstart cable channels. That meant internet providers could restrict what customers had access to see and interact with online. In 2003, legal scholar Tim Wu coined the term “net neutrality” in an academic paper, calling the idea “no different than the challenge of promoting fair evolutionary competition in any privately owned environment.”
Sohn saw internet access as a landmark struggle for free expression. In 2001, she co-founded Public Knowledge, a policy group that promoted open internet rules and expanded broadband access. The group took hard stances on protecting consumer privacy, opposing carriers being able to snoop on what users are accessing online. It opposed the increasing consolidation of media companies, like Comcast’s merger with NBCUniversal.
Because of Public Knowledge’s goal to enhance competition in cable, its work didn’t always fit neatly along partisan lines. One of the group’s strange bedfellows was Herring Networks, founded by Robert Herring Sr. and his sons, Charles and Robert Jr. The Herrings entered the cable world in 2004 with WealthTV, a channel dedicated to the audacious lifestyles of the rich and famous. But cable companies wouldn’t carry the channel, even when the Herrings offered it for free. By 2007, the family escalated this battle, petitioning the FCC for help. In FCC filings, the company accused large cable providers of discriminating against independent networks in order to protect the audiences of their own outlets.
Despite the support of Sohn and groups like the Media Access Project in filings and amicus briefs, the Herrings’ WealthTV pleas failed in court. But they continued to cross paths, opposing giant mergers between companies like Sinclair and Tribune Media as the Herrings’ latest venture, One America News, started to take off in the late 2010s. “There’s a competitive news network that wants to come on the scene. Why is it, given that cable isn’t channel constrained, that they can’t carry OAN? And it’s because other stations don’t want the competition from a new news channel,” said Greg Guice, government affairs director for Public Knowledge, describing Sohn’s support for the Herrings.
Charles Herring came out in support of Sohn’s nomination shortly after it was announced in 2021. “I’ve fought in the trenches side-by-side with Gigi Sohn for a number of years on multiple issues,” Herring said. “I’m fully aware of Gigi’s personal views, yet I’m even more knowledgeable on her strong belief and advocacy for diversity in the programming lineup, especially in news, regardless of conflicts with her personal views.”
Through the 2000s and early 2010s, broadband access and net neutrality became a cornerstone of progressive internet policy. Republicans — and large cable companies — opposed expanding the FCC’s power by giving it more authority over internet service providers. Sen. Ted Cruz (R-TX) went as far as calling net neutrality “Obamacare for the internet.”
Meanwhile, throughout his presidential campaign, Barack Obama pledged to support the introduction of net neutrality rules. After he was elected, his first-term FCC passed rules banning internet providers from blocking or throttling content by 2010. But not even a year later, Verizon sued the FCC over these rules and ultimately won when a federal appeals court struck down the 2010 rule at the beginning of 2014.
Obama’s pick for a second term was Tom Wheeler, a former telecom lobbyist. Many progressive activists were skeptical of Wheeler. But while preparing to become chair, he approached Sohn with a proposal. “He calls me one day in August and says, ‘I have this crazy idea.’ And I thought to myself, ‘He’s gonna ask me if I want to come work for him,’” Sohn said. “And his crazy idea, which was not so crazy in execution, was for me to basically be his main stakeholder outreach person.”
With Sohn as one of his many advisors, Wheeler led the agency in a number of landmark consumer protections. The Wheeler FCC increased competition for set-top cable boxes and tried to overthrow state laws forbidding municipal broadband networks. But Wheeler’s major achievement was implementing net neutrality nationwide. The net neutrality rules barred internet service providers like AT&T and Verizon from blocking or favoring online content. But most importantly, it gave the agency power to regulate broadband.
