Net neutrality and the rest of US President Joe Biden's broadband agenda hang in the balance as the president's nominee for the deadlock-breaking fifth commissioner on the Federal Communications Commission awaits a vote in the US Senate. But the process has stalled for nine months and time is running out.
Gigi Sohn, a longtime public-interest advocate and former FCC adviser, was nominated in October last year to be the third Democrat at the agency. Since then, she's faced two contentious Senate confirmation hearings in which Republicans grilled her over her social media activity and other issues, like her criticism of Fox News.
With a 50-50 Senate and strong opposition to her nomination from Republicans, every Democrat is needed to get her nomination over the finish line. But with only three weeks left on the Senate calendar before the August recess in an election year, the clock could run out on Sohn's nomination, leaving the FCC without a functional majority. The agency has already gone more than 500 days with a deadlocked 2-2 split between Republicans and Democrats.
If Democrats lose control of the Senate in November, Sohn's nomination is almost certainly dead. Republicans would then control the Senate calendar, and even if Biden renominated her and the Senate voted, they'd likely have the numbers to vote down her nomination. This would likely leave the FCC split 2-2 for the duration of the Biden presidency, unable to enact bold policies that might stir controversy or dissent between the parties, said Greg Guice, director of government affairs for Public Knowledge, a consumer watchdog group that Sohn helped found and led for 12 years.
Sohn's confirmation as the fifth member is key to Biden's agenda on broadband policy, which includes net neutrality and making broadband available to 100 percent of Americans. If confirmed, Sohn would become the vote to break the FCC deadlock, putting Democrats in charge. Without that majority, the agency will be hamstrung in fulfilling Biden's promise of delivering affordable, equitable broadband service to all Americans, as well as his promise to restore Obama-era federal net neutrality protections. And given that the FCC commissioners tend to vote along party lines, having an even split means the agency would be unlikely to enact anything but middle-of-the-road policies.
"What's happening with this nomination has nothing to do with Gigi Sohn," Guice said. "This is about politics and the Democrats having the fifth seat on the FCC. No matter who Biden nominates, Republicans will use the same playbook to stall the process and keep the administration from enacting its agenda on broadband."
Some Democrats are getting fed up with the inaction, and they're pushing Senate Majority Leader Chuck Schumer of New York to schedule a vote on her nomination.
"The @FCC has important tools to enforce privacy protections and lower prices by promoting competition," Sen. Elizabeth Warren, a Democrat from Massachusetts, tweeted earlier this week. "We need to swiftly confirm Gigi Sohn, who has decades of experience, as the final FCC Commissioner so the agency can carry out its mission."
What's at stake
Elected during the height of school shutdowns prompted by the COVID pandemic, Biden said early in his presidency that providing affordable, reliable, high-speed broadband to all Americans was a priority. He also made it clear in an executive order issued a year ago that he wanted to bring back net neutrality protections that had been gutted under then-President Donald Trump.
The bipartisan infrastructure bill, which commits $65 billion to getting broadband where it's most needed, also includes mandates to make access equitable by dealing with issues of digital redlining, a term used to describe when broadband providers purposefully leave low-income customers on slower, legacy broadband infrastructure while upgrading infrastructure in wealthier communities. It's a practice rooted in the early part of the 20th century, when banks developed maps to withhold loans for high-risk, "undesirable inhabitant types," who were almost always poor people of color.
Under the 2-2 split, the FCC hasn't even begun to tackle the issue of reinstating Obama-era net neutrality protections, which in addition to establishing the FCC's authority to regulate broadband, had prevented broadband companies from blocking or slowing down traffic or prioritizing their own services over those of competitors. In March, the agency did open public comment on how to create policies that combat digital discrimination and promote equal access to broadband.
But without a 3-2 majority in the FCC, the rules adopted won't likely go far enough, said Ernesto Falcon, senior legislative counsel for the Electronic Frontier Foundation, a nonprofit focused on defending digital privacy, free speech and innovation.
"The Biden administration with a clear Democratic majority on the FCC has a real opportunity to make a huge difference in the lives of millions of low-income families, if they can get some strong nondiscrimination regulations in place," Falcon said.
Though a clear set of federal net neutrality protections would also be good, experts say it isn't necessary. Without federal regulation or federal law codifying net neutrality protections, it'll be up to each state to pass its own regulation.
"Then service providers can comply with 50 sets of regulations," said Public Knowledge's Guice. "It's not ideal. But I guess that's what the ISPs want, because that's what's happening without a fifth commissioner."
What's the holdup?
Even though Biden said broadband was a priority, he waited 10 months into his presidency to nominate Sohn and Jessica Rosenworcel as chair. He also waited to nominate Alan Davidson to lead the National Telecommunications and Information Administration, another key agency tasked through the infrastructure bill with allocating to the states $42 billion in funding to build broadband in unserved communities.
Rosenworcel was confirmed in December and Davidson was confirmed in January.
The White House didn't respond to a request for comment on why the president waited so long to nominate Sohn, nor did it respond to questions about whether Biden is considering pulling her nomination. A person familiar with the White House's thinking said the president is committed to seeing her nomination through and has no intention of nominating someone else.
People close to Sohn say she has no intention of pulling out before a Senate vote on her nomination. Chip Pickering, a former Republican Congressman from Mississippi and now CEO of Incompas, a trade association advocating for competition policy across all networks, has known Sohn for more than 20 years.
"Anyone who knows Gigi knows she always sticks things out and fights to the very end," Pickering said. "I expect her to do the same on this nomination and the confirmation process."
Still, the timing of the nomination late in Biden's first year has likely contributed to the confirmation process dragging on and becoming politicized in a midterm election year. On top of that, the president and Congress have also been grappling with other political issues, including gun control, abortion rights, inflation, the pandemic and the war in Ukraine.
Compounding the problem is the Democrats' slim majority in the Senate, with the 50-50 split and Vice President Kamala Harris holding the deciding vote on contentious issues, like controversial nominations. With Republicans looking to slow Biden's agenda, this means the Democrats need every vote, and because several senators have been out for COVID quarantines and other health issues, it's been hard to find a time to even schedule a vote, Guice said.
"If you had a broader majority, the absences may not matter as much," he said. "But right now it's impacting things pretty consequentially. At this point, everybody understands there needs to be a vote, but it's more about corralling everybody, and making that time available."
Some people have speculated that Schumer has also been holding off on the vote, unsure that Sohn has the support of all 50 Senate Democrats.
Schumer's office didn't respond to a request for comment.
There are a small handful of Senate Democrats who haven't publicly indicated they'd vote for Sohn, including Sens. Joe Manchin of West Virginia; Mark Kelly and Kyrsten Sinema of Arizona; Maggie Hassan of New Hampshire; and Catherine Cortez Masto of Nevada.
Representatives from the offices of Manchin, Kelly, Hassan, Masto and Sinema didn't respond to requests for comment.
There's still time
Sohn's supporters admit it's unlikely the Senate will vote on the nomination before the August break, as three Senate Democrats, including Schumer, aren't in Washington due to illness.
But the Senate is scheduled to be back in session in September, and given that there are still several other big pieces of legislation that have yet to pass, including bipartisan antitrust reform and privacy regulation, Guice thinks there's a chance the nomination could be voted on in September.
If not September, the next, and likely final, opportunity would be during the lame duck session of Congress after the November election and before the end of the year. Falcon said he's confident Democrats will get Sohn over the finish line, even if it's late in the year.
"There comes a time when Biden and the Democrats need to deliver on campaign promises," he said. "If they completely flub this simply because they can't get a full slate of FCC commissioners when they control the Senate, then what is the argument that they're giving people to support any of their goals?"