The Federal Communications Commission (FCC) voted today along party lines to begin the process of reinstating net neutrality.

The 3-2 vote, supported by FCC Chairwoman Jessica Rosenworcel, Geoffrey Starks, and President Joe Biden's new appointee Anna Gomez, is on a Notice of Proposed Rulemaking, which would reclassify net neutrality under Title II of the Communications Act, granting the government great authority in regulating the big telecom companies that control web traffic and access.

Net neutrality has been a source of constant fighting for nearly a decade, ever since the Obama administration instituted the rules in 2014. Those regulations allowed the FCC to prevent internet service providers from blocking or throttling content and promised fairer and freer access to the web as it became an integral tool in society.

But in 2017, President Donald Trump's FCC repealed the rules, prompting a number of attempts by Congress to reinstate the regulations, all of which failed.

When President Joe Biden took office, the hope was his FCC would rapidly reinstate net neutrality, but the president dawdled on picking a fifth FCC commissioner. His first nominee, Gigi Sohn, languished in Congress and faced attacks from right-wingers vehemently opposed to her candidacy.

Just last month, over two-and-a-half years into his presidency, Biden was able to fully staff the FCC when Gomez cleared the Senate.

However, the reinstatement process isn't nearly as swift as this initial vote. Now that the proposed policy has passed, the FCC will open it open to public comment. The last time the FCC did that, in 2017, the process was beset by bots and spam who pushed support for the repeal, despite it being widely unpopular. After reviewing public comment, the FCC votes on an official policy.

Given the length of the process, concern exists that the Biden FCC won't have enough time to finish the reinstatement prior to the 2024 election. If Republicans retake the White House, they will regain a majority on the Commission and could halt any efforts.

In a statement about the vote, Rosenworcel laid out the case for reinstating the rules.

"The internet needs to be open. That is why for as long as I have served on the FCC, I have supported net neutrality.  But in 2017, despite overwhelming opposition, the FCC repealed net neutrality and stepped away from its Title II authority over broadband. This decision put the agency on the wrong side of history, the wrong side of the law, and the wrong side of the American public," she said.

"Today, we begin a process to make this right. We propose to reinstate enforceable, bright-line rules to prevent blocking, throttling, and paid prioritization," Rosenworcel added. "They would ensure that the internet remains open and a haven for creating without permission, building community beyond geography, and organizing without physical constraints."

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Analysis

The Federal Communications Commission (FCC) is asking the public to tell them how much they hate data caps imposed by their internet service providers (ISPs). 

The call for horror stories comes as FCC Chairwoman Jessica Rosenworcel called on her fellow commissioners to support a formal Notice of Inquiry “to learn more about how broadband providers use data caps on consumer plans.” 

Data caps typically restrict the amount of bandwidth or data a consumer can use before they are throttled or charged more money. 

The goal of the Notice of Inquiry, according to the agency, is to “better understand the current state of data caps, their impact on consumers, and whether the Commission should consider taking action to ensure that data caps do not cause harm to competition or consumers’ ability to access broadband internet services.” 

“Internet access is no longer nice-to-have, but need-to-have for everyone, everywhere.  As we emerge from the pandemic, there are many lessons to learn about what worked and what didn’t work, especially around what it takes to keep us all connected,” Rosenworcel said in a statement. 

“When we need access to the internet, we aren’t thinking about how much data it takes to complete a task, we just know it needs to get done.  It’s time the FCC take a fresh look at how data caps impact consumers and competition,” she added.

The announcement from Rosenworcel was cheered by consumer advocacy groups, who pointed out that data caps can interfere with low-income consumers trying to access services online like educational tools, Video Relay Services, telehealth, and more. 

“There is scant evidence that such caps are necessary and their consequences can be especially disastrous for vulnerable populations,” Benton Institute for Broadband & Society Executive Director Adrianne B. Furniss said in a statement, later adding: “In general, data caps are not popular with consumers, nor are they an effective means of managing network congestion.” 

Why it matters 

If you are one of the many people who probably have a word or two to say about data caps, the FCC is urging you to fill out a “Data Caps Experience Form.” The form isn’t a formal complaint, so it won’t be shared with your ISP. 

Of course, if the FCC were to get to the point of taking regulatory action against data caps, they’d likely need a full 5-person commission with a Democratic majority—something many of you long time readers know has been a process filled with false attacks, lobbying, and more. 

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The Federal Communications Commission (FCC) officially fined right-wing influencer Jacob Wohl $5 million. At the time it was proposed, it was the largest amount ever under the Telephone Consumer Protection Act (TCPA).

Wohl, along with his partner Jack Burkman, used robocalls to attempt to convince people of color that they could be arrested if they voted by mail in the 2020 presidential election. Voting by mail was a popular option in that election, as the country was still being ravaged by the COVID-19 pandemic.

The FCC's decision unanimously agreed to the $5,134,500 amount.

The calls, which were directed at voters in Ohio, a swing state, said that "personal information" could be put in a public database if people voted by mail, "used by police departments to track down old warrants."

The duo also claimed debt collectors would have access to the information, all in an attempt to help swing the state toward former President Donald Trump, as voters of color were more likely to break for President Joe Biden.

In their defense to the FCC, Burkman and Wohl argued that they should not be held liable for the calls, but rather the provider they used.

However, the FCC, which investigating the case, found emails that "show Burkman and Wohl directing the dialing companies on specific details of the calling campaigns such as which zip codes to call, pricing, and other matters related to the robocalling campaign."

According to the FCC, if Wohl and Burkman don't pay, the case could be transferred to the Justice Department.

Wohl and Burkman also faced criminal charges for the scheme in Ohio, where they were sentenced to 500 hours of community service, and required to register voters in low-income communities.

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Hoping to break long-standing, lobbying-fueled gridlock at the nation’s top telecom and media regulator, the White House nominated Anna Gomez to fill the remaining empty spot at the Federal Communications Commission (FCC).

Gomez previously worked as a lobbyist at Sprint-Nextel, as an administrator for the National Telecommunications and Information Administration (NTIA), and for 12 years in various roles at the FCC. She also has extensive experience as a corporate attorney for a variety of companies that routinely have business before the agency.

“She is eminently qualified for this role at the FCC,” Jessica González, Co-CEO for consumer group Free Press, told the Daily Dot. “She would also be the first Latinx FCC commissioner in more than two decades, and we celebrate the White House’s nomination of experts from diverse backgrounds for these important roles.”

Biden’s previous nominee to the agency, Gigi Sohn, saw her nomination falter in the wake of a coordinated telecom and media industry smear campaign that falsely framed the respected consumer advocate and media reformer as a fringe radical. 

The homophobic industry-backed campaign—which also falsely claimed Sohn held animosity for both law enforcement and rural America—provided superficial justification for unified opposition to Sohn by the GOP, and by three key Democrats: Sen. Mark Kelly (D-Ariz.), Sen. Catherine Cortez Masto (D-Nev.), and Sen. Joe Manchin (D-W.V.).

Gomez, currently serving as a senior adviser for international information and communications policy in the cyberspace and digital policy bureau of the State Department, would be the first Latina FCC Commissioner since 2001. Several civil rights groups—including some with financial ties to the telecom sector—had criticized the Sohn choice. 

Unlike Sohn, Gomez’s positions on several key telecom policy issues haven’t always been clear. In particular, Gomez has made no public comment on whether she supports classifying broadband as a common carrier service under Title II of the Communications Act of 1934, a cornerstone in restoring popular net neutrality protections stripped away during the Trump era.

Such restrictions were designed to prevent telecom monopolies from abusing their market power to unfairly penalize consumers and competitors. The 2017 decision to kill the protections not only eliminated the rules—which have broad, bipartisan public support—but pared back much of the FCC’s dwindling consumer protection authority over telecom giants.

“I would say that given the Biden Administration's support and the support of the other two Democratic commissioners for restoration of Title II authority and net neutrality, I think she will genuinely be supportive,” Greg Guice, director of government affairs for Public Knowledge, told the Daily Dot. 

By law, the party that holds the White House enjoys a 3-2 Commissioner voting majority at the FCC. But with the Democrats’ third seat effectively held captive by unchecked lobbying influence for two years, the agency has lacked the voting majority to impose any policy reform deemed remotely controversial by the telecom and media giants the agency oversees.

That includes not only issues like net neutrality, but the potential restoration of media consolidation limits—previously crafted over decades with bipartisan support—also unceremoniously stripped away during the Trump administration.

Gomez’ ambiguous track record on key consumer issues like net neutrality could prove beneficial to her nomination, as it provides little ammunition for industry opposition. At the same time, should Gomez not support Title II and net neutrality reform, the agency would still lack the voting majority needed to restore net neutrality and FCC consumer protection authority.

That could prove problematic in a country where unchecked monopoly power generally results in expensive, patchy, and sluggish broadband access due to a dearth of competition. Increasingly, federal regulators routinely pay lip service to bridging this digital divide, but often lack the political courage to address or even criticize telecom monopoly power.

Outspoken reformers like Sohn, keen on disrupting this profitable status quo, generally struggle to survive a nomination process through a Congress heavily reliant on campaign contributions from the politically powerful telecom industry.

"When I accepted his nomination over sixteen months ago, I could not have imagined that legions of cable and media industry lobbyists, their bought-and-paid-for surrogates, and dark money political groups with bottomless pockets would distort my over 30-year history as a consumer advocate into an absurd caricature of blatant lies," Sohn said at the time.

In stark contrast, telecom giants were quick to laud the Gomez pick, suggesting her nomination process could be less acrimonious than the unrelenting lobbying assault that greeted Sohn. 

“I have come to know Anna over the years in her roles as an advocate in the public and private sectors, and if confirmed, I look forward to working with her and a full five-member FCC on our shared objective to connect everyone everywhere to the power and promise of broadband,” said Jonathan Spalter, president and CEO of USTelecom, a trade organization that represents telecom giants like AT&T and Verizon. 

Similarly, Comcast chief legal officer Tom Reid issued a statement saying that Gomez’s “deep knowledge across the breadth of issues before the FCC makes her exceptionally qualified to be a Commissioner.”

Despite the positive comments, media and telecom giants remain incentivized to drag out the Gomez nomination process for as long as possible. An FCC without a voting majority is an agency incapable of implementing any meaningful reform. 

At this point, most consumer groups are keen to see any progress whatsoever. The Trump FCC was widely seen as little more than a rubber stamp to industry interests, and the agency during Biden’s tenure has spent two years avoiding even semi-controversial policy. That’s six straight years of regulatory inaction policy groups are eager to see come to an end.

“This senseless delay is harming millions of people, including working families trying to pay their rising monthly bills and Black, Indigenous, Latinx, and rural communities that the biggest telecom companies and broadcast conglomerates have long neglected,” González said.

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Yesterday, after facing down an ugly, year-and-a-half-long, industry-backed campaign, popular telecom and media reformer Gigi Sohn withdrew her nomination to the Federal Communications Committee (FCC). It is the latest in a long line of victories for U.S. telecom monopolies and media giants keen on stymying federal oversight of one of the most disliked industries in America.

And, experts say, it is a startlingly new low point for a government that already constantly fails to protect the public interest against the whims and profit-seeking motivations of big telecom.

“Sohn's nomination was marred by right-wing extremist attacks that centered on misinformation and politics of division and hate rather than her record and role at the FCC,” Demand Progress Communications Director Maria Langholz told the Daily Dot. “While it would be easiest to blame the right-wing for her nomination failing, there was missing urgency and commitment from Democrats in the White House and Senate.”

Sohn, who would have been the first LGBTQ commissioner in agency history, is broadly popular across both sides of the aisle, with significant experience across government and consumer advocacy. But a coordinated smear campaign by the industry—peppered across major outlets—cast her as an anti-police, pro-censorship radical and had its intended effect, Sohn said in a statement.

“When I accepted his nomination over sixteen months ago, I could not have imagined that legions of cable and media industry lobbyists, their bought-and-paid-for surrogates, and dark money political groups with bottomless pockets would distort my over 30-year history as a consumer advocate into an absurd caricature of blatant lies,” Sohn said. “The unrelenting, dishonest and cruel attacks on my character and my career as an advocate for the public interest have taken an enormous toll on me and my family.”

With Sohn’s nomination now scuttled, the Biden FCC remains stuck in policy purgatory without a voting majority, despite being mandated one by law as the party in control of the White House. 

Without it, the agency can’t hold wireless companies accountable for playing fast and loose with user location data, can't take broadband providers to task for years of refusing to upgrade low-income and minority neighborhoods, and can't police a cable industry that has spent years tacking on nonsensical fees.  

As the Daily Dot reported, President Joe Biden delayed nominating Sohn for nine months, giving the telecom industry ample runway to craft an opposition campaign. Key Democratic leaders then failed to whip the needed votes, folded to GOP demands to hold repeated, unnecessary hearings, and failed to publicly support Sohn as she faced down attacks alone.

Sohn’s nomination never appeared to be a meaningful priority for the Biden administration, which in recent days has intervened to pressure Congress to be tougher on TikTok, but never publicly expressed concern that the nation’s top telecom and media regulator has spent years mired in regulatory gridlock by the telecom lobby. 

“This nomination process was bungled almost from the start, with a long wait in selecting the nominee in the first place, three different confirmation hearings, and endless excuses for why various senators weren’t ready to vote,” Craig Aaron, co-CEO of consumer rights group Free Press told the Daily Dot. “All this dithering and delay allowed the industry to refuel their attack machine, bankroll front groups, and deploy legions of lobbyists against Sohn.”

A source close to the nomination process also lamented a consistent lack of urgency by Senate Majority Leader Chuck Schumer (D-N.Y.) and the White House, which helped further doom Sohn’s struggling nomination.

Even Sohn’s potential Democratic future colleagues at the FCC, Chairwoman Jessica Rosenworcel and Commissioner Geoffrey Sparks, failed to publicly and meaningfully support Sohn as attacks on her became increasingly unhinged and homophobic.  

While the GOP routinely operates in policy lockstep with telecom monopolies (such as when the GOP-controlled Senate blocked the FCC from protecting broadband consumer privacy in 2017), Sohn’s nomination was ultimately scuttled by the waffling of a handful of Democratic senators, including Sen. Mark Kelly (D-Ariz.), Sen. Catherine Cortez Masto (D-Nev.), and Sen. Joe Manchin (D-W.V.), the last of whom only confirmed his opposition publicly on Tuesday.

A source familiar with the nomination roadblocks also stated that Sen. Jacky Rosen (D-Nev.), Sen. Kyrsten Sinema (I-Ariz.), and Sen. Jon Tester (D-Mont.) contributed to some last-minute waffling that prevented Sohn from even being voted out of committee unless they received assurances she’d be confirmed by the full Senate, which they say, according to a source, Masto prevented from happening.

Axios first reported that the trio of senators was waffling on Sinema. All three previously voted for her in her last confirmation hearing. Rosen, Sinema, and Tester did not respond to Daily Dot requests for comment.

“Unfortunately, the abject failure of Democratic leaders to stand up and advocate for their own nominee means that these companies will likely only double down on the kinds of deceitful and dirty tactics they deployed against Sohn,” Aaron said. “What other lessons could they draw from how easily senators folded in the face of easily fact-checked lies and slanders—including by their former colleagues who are now on the corporate payroll.”

That came from a separate, additional smear campaign spearheaded by industry lobbyist and former Democratic senator Heidi Heitkamp. Heitkamp’s campaign falsely claimed that Sohn wasn’t interested in ensuring that rural Americans had access to affordable broadband, despite that being a central thrust of Sohn’s mission at consumer group Public Knowledge.

Heitkamp’s false claims that Sohn opposed delivering broadband to rural Americans was the basis of a line of questioning during Sohn’s second confirmation hearing by Sen. Dan Sullivan (R-Alaska). 

Masto similarly cited numerous false claims seeded by the industry that Sohn had “serious animus” against law enforcement. 

A source familiar with the nomination process indicates that Sohn had the full support of Biden, prompting him to renominate her at the beginning of the year. But without the support of key Democratic senators or her future FCC colleagues, Sohn was unable to get the 51-vote majority in the Senate needed for confirmation.

Sohn’s experience was in stark contrast to the Trump administration’s FCC appointment of Nathan Simington, whose confirmation process took all of 28 days despite widespread concerns about his lack of meaningful telecom industry experience. 

In a statement, Manchin claimed his opposition to Sohn was primarily based on his desire to see a less “partisan” agency. Sohn’s cardinal offenses appear to have been several old tweets supporting police reform and calling Fox News “state-sponsored propaganda.” 

“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. “For those reasons, I cannot support her nomination to the FCC, and I urge the Biden Administration to put forth a nominee who can bring us together, not drive us apart.”

Yet Manchin supported the nomination of Trump FCC boss Ajit Pai, whose agency was not only nakedly partisan, but was routinely mired in numerous controversies as it delivered just about everything telecom and media giants wanted, from the repeal of popular net neutrality rules, to the stripping away of longstanding media consolidation restrictions.

Not only did the Trump FCC effectively neuter the agency’s consumer protection authority, it even attempted to ban states from protecting broadband consumers, something the courts haven’t looked kindly upon. 

Between Trump and the Sohn fracas, the agency has now spent six straight years on the sidelines courtesy of telecom industry lobbying.

As it stands, the Biden administration will need to nominate a new candidate to fill the empty seat at the FCC. That nomination process, even if industry approves of the new pick, will likely be dragged out indefinitely, leaving the agency incapable of implementing meaningful reform before the next presidential election risks once-again shifting control of the FCC.

That’s a particular problem given the federal government is preparing to dole out more than $45 billion in broadband subsidies made possible by the recently passed infrastructure bill. Who gets that money will be determined by an FCC whose broadband maps have been routinely criticized for being an inaccurate mess.

“If I don’t get confirmed at all, there’s not going to be a fifth person on the FCC in time to do anything about those maps,” Sohn warned during a third hearing earlier this year. Sohn noted her experience with numerous state leaders would have proved invaluable in the agency’s effort to ensure an historic round of broadband subsidies were dispersed equitably.

As it turns out, Sohn will never get that chance.  

“It is a sad day for our country and our democracy when dominant industries, with assistance from unlimited dark money, get to choose their regulators,” Sohn said. “And with the help of their friends in the Senate, the powerful cable and media companies have done just that.”

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The Federal Communications Commission (FCC) will be deadlocked at four commissioners—at least for now.

Gigi Sohn, President Joe Biden’s nominee to fill out the FCC and a longtime internet rights advocate, told the White House she was withdrawing her nomination on Tuesday, according to the Washington Post. 

In a letter obtained by the Post, Sohn said the “unrelenting, dishonest and cruel attacks” she faced took a toll on her and her family.

“When I accepted his nomination over sixteen months ago, I could not have imagined that legions of cable and media industry lobbyists, their bought-and-paid-for surrogates, and dark money political groups with bottomless pockets would distort my over 30-year history as a consumer advocate into an absurd caricature of blatant lies,” she said.

During her nomination process, Sohn faced an onslaught of attacks from both sides of the aisle. First nominated in October 2021, Sohn was hit with vocal opposition from Republicans from the jump. She faced heavy lobbying efforts from telecom companies that attempted to stall her nomination and a six-figure ad campaign from a former Democrat who said she was the “wrong choice for America.”

The attacks worked.

Sohn’s nomination stalled, forcing her to be renominated in January. Even then, Republicans found new criticisms and grilled her over made-up tweets during her second confirmation hearing in February. 

Now, she said the attacks were too much to handle.

“It is a sad day for our country and our democracy when dominant industries, with assistance from unlimited dark money, get to choose their regulators,” she said in the letter. “And with the help of their friends in the Senate, the powerful cable and media companies have done just that.”

Sohn said despite this being “the most consequential opportunity for broadband in our lifetimes” the FCC will remain deadlocked for “a long time.”

“Unfortunately, the American people are the real losers here,” she said. “This means that your broadband will be more expensive for lack of competition, minority, and underrepresented voices will be marginalized, and your private information will continue to be used and sold at the whim of your broadband provider.”

Sohn said high-priority initiatives like nondiscriminatory broadband access and fast internet for low-income and rural Americans are now unlikely to be adopted, but said she is hopeful Biden’s next nominee will mirror her interests.

“I hope the president swiftly nominates an individual who puts the American people first over all other interests. The country deserves nothing less,” she said.

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Analysis

Gigi Sohn, President Joe Biden’s nominee to be the fifth and final commissioner at the Federal Communications Commission, had yet another confirmation hearing this week as her nomination continues to drag on. 

We’ve covered the saga of Sohn’s nomination for more than a year. It has included false attacks on her, misleading claims from the Fraternal Order of Police, and a lot of grandstanding and disingenuous remarks by Republican lawmakers who are attempting to sink her candidacy (despite major conservative networks backing Sohn’s candidacy in 2021). 

Oh, and after this week’s hearing, you can add making up hypothetical tweets to the list of things her nomination has endured. 

Sohn’s confirmation would have major implications. The president’s political party is supposed to have three of the five seats at the FCC. Sohn would be the third Democratic commissioner, allowing the agency to vote on issues and agenda items (like potentially restoring net neutrality rules) that would almost assuredly require a party-line vote. 

But Sohn and other lawmakers took the opportunity to call out the attacks as a result of big telecom. 

In her prepared remarks for her third confirmation hearing, Sohn said she felt her confirmation was being blocked because the telecom industry doesn’t want a “pragmatic, pro-competition, pro-consumer policymaker” at the FCC. 

“I believe deeply that regulated entities should not choose their regulator. Unfortunately, that is the exact intent of the past 15 months of false and misleading attacks on my record and my character,” Sohn said. “My industry opponents have hidden behind dark money groups and surrogates because they fear a pragmatic, pro-competition, pro-consumer policymaker who will support policies that will bring more, faster, and lower-priced broadband and new voices to your constituents.” 

During the confirmation hearing, several lawmakers also blamed big telecom for the seemingly-never ending smear campaigns and delays her nomination has been subject to. 

“This position remains vacant because the companies that are lawfully subject to oversight by the FCC don't want a watchdog,” Sen. Ben Ray Luján (D-N.M.) said. “They don't want to be regulated, and these companies have spent an immense amount of money and influence to keep this position vacant. The more that I read, the more time that goes by, it seems more and more clear to me.”

Sen. Maria Cantwell (D-Wash.), the chair of the Senate Commerce Committee, said she felt like Sohn’s nomination became a “proxy fight” fornet neutrality, but evolved into something else. 

“The vitriol of these attacks made me think, no, it’s even more than this,” Cantwell said, adding: “You are a smart, talented individual that’s going to go there and fight for affordable broadband anywhere. And somehow, if affordable broadband gets deployed anywhere, then somehow more affordable broadband might get deployed everywhere. So I think there’s probably billions of dollars at stake here, and that is why the vitriol is coming at you. Now I hope that we can see through that today.”  

Why it matters

Sohn’s nomination has been drawn out for a comically long time. Perhaps after a third confirmation hearing the Senate will finally vote on her nomination. Her nomination is expected to pass through the Senate, especially now that some Democratic senators who seemed wishy-washy on her candidacy might fall in line with the rest of the party. 

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The post Big telecom called out for attacks and delay of Biden’s FCC nominee appeared first on The Daily Dot.

In 2017, the Trump administration worked closely with the telecom industry to strip away popular net neutrality rules protecting consumers from the profit-motivated whims of broadband monopolies. The decision was hugely controversial, in part because the telecom industry faked support by using dead Americans to pretend the decision was what actual, living citizens wanted.

More than five years later and the quest to restore net neutrality continues to face a steep, uphill climb. That’s in part due to a protracted industry smear campaign designed to stall the appointment of popular reformer Gigi Sohn to the Federal Communications Commission (FCC). 

On Tuesday, President Joe Biden’s nominee faced repeated attacks by congressional lawmakers eager to scuttle her nomination and keep the agency without the majority needed to do anything deemed remotely controversial.

At the hearing, Sohn’s third since her nomination, Republicans found a new line of attack. That the right-leaning Supreme Court had already neutered the FCC and Sohn’s belief in restoring net neutrality would be downright illegal.

The argument put forth, primarily by Sen. Eric Schmitt (R-Mo.), doesn’t carry weight, according to a number of legal experts. But the combined effort—despite Democrats having the clear majority in the Senate needed to muscle her through—may have been effective and put Sohn’s position on the FCC in peril. 

While the GOP is uniformly opposed to Sohn’s appointment, a source familiar with the process indicates that key Democrats—specifically Sens. Catherine Cortez-Masto (D-Nev.), Mark Kelly (D-Ariz.), and Joe Manchin (D-W.V.)—continue to prevent Sohn from getting the 51-vote Senate majority needed for confirmation to the agency. 

A source familiar with the nomination process told the Daily Dot that 15 straight months of baseless attacks seeded in the press by News Corporation, AT&T, and Comcast are having their intended effect on key Democratic senators and committee members, who continue to waffle on advancing Sohn’s nomination to a Senate floor vote.

Should Sohn’s nomination be scuttled, her replacement will likely be far friendlier to industry interests and may be swayed by the conservative argument that the FCC can’t actually do anything. 

Even if a slightly more palatable reformer is put in place, whoever is finally seated will have a very limited window of opportunity before the next presidential election potentially hands control of the agency back to a Republican party that’s fiercely loyal to some of the least-liked companies in America. 

Even if net neutrality is restored, years of additional legal wrangling is likely waiting in the wings, based on the Republican tack against Sohn.

During the hearing, Schmitt proclaimed that a recent EPA ruling would prohibit the FCC from restoring hugely popular net neutrality rules and that Sohn and the FCC would be running afoul of the Supreme Court and Congress if they tried to do so anyway. 

But industry lawyers and Sohn alike say that’s wishful thinking by Republicans.

“I believe the FCC can and has the authority to act, it doesn’t mean it won’t be challenged and the West Virginia case is going to be a challenge for net neutrality rules,” Sohn said.

The case in question, West Virginia v. The Environmental Protection Agency (EPA), declared that the environmental regulator could not implement state-level caps on carbon emissions under the 1970 Clean Air Act without the explicit approval of Congress. It was a stark reversal from a prior 2007 Supreme Court ruling and a painful blow to environmental reforms. 

Chief Justice John Roberts’ decision in the EPA case focused on the “major questions doctrine,” which Roberts stated required “clear congressional authorization” when agencies regulate issues of great “economic and political significance.”

The problem: The court ruling was so nebulous about what specifically constitutes a “major question,” court watchers quickly began to worry that this vague interpretation was intentionally crafted to be abused down the road to derail any and all regulatory efforts opposed by U.S. industry using errant hand-waving and pseudo-legalese.

For years, industry and the right wing have dreamed of dismantling the U.S. regulatory state, freeing American corporations from consistent and meaningful government oversight. While often framed as a populist reform, such a shift would effectively give carte blanche to U.S. monopolies and polluters to behave with impunity.

U.S. regulatory agencies, like the FCC and EPA, have varying degrees of rulemaking authority laid out by Congress, which historically has deferred to individual agencies’ subject matter expertise. 

But with Congress increasingly under lobbying assault by coalitions of deep-pocketed corporations, it’s often impossible to expand regulator authority or implement reforms, like net neutrality, which was beset by attacks from the moment it was implemented by the Obama-era FCC. 

And as the U.S. courts shift increasingly rightward, even existing regulatory authority is consistently eroded, forcing states into a greater role on issues like environmental and consumer protection.

The push has been particularly effective in the telecom and media sectors, where rules governing everything from longstanding media consolidation limits to basic broadband privacy protections have been stripped away over the last decade by industry lobbyists. 

The Supreme Court’s EPA ruling was considered a landmark victory in the effort to lobotomize competent regulatory oversight. And during Sohn’s third confirmation hearing, Schmitt claimed that Sohn—should she ever actually be approved to the agency—would be defying Supreme Court precedent if the FCC restored net neutrality.

But experts say that several key legal rulings—including the 2005 National Cable & Telecommunications Ass’n v. Brand X Internet Services Supreme Court case—have made it clear that the FCC has the authority to restore (or dismantle) net neutrality rules as it sees fit, without seeking additional congressional approval. 

“The EPA ruling is unlikely to prevent the FCC from enacting net neutrality protections,” Ryan Singel, a fellow at Stanford Law School’s Center for Internet and Society, told the Daily Dot.

“Congress explicitly told the FCC in the Communications Act to classify services as either Title I Information Services, over which it has little authority, or Title II telecommunications services, which are then subject to FCC authority and common carrier obligations. Though the FCC can decide, via that statute, what obligations don't have to apply to a particular service.”

If broadband service is classified as a telecommunications service under Title II of the Communications Act, as it was by the pro-net-neutrality Obama administration in 2015, the FCC is empowered to police those services for “unfair and unjust practices.” 

Similarly, the Trump administration had the same authority to reverse that decision in 2017, despite a broad bipartisan majority of Americans who supported the rules.

Ideally, Congress would pass a net neutrality law to end this perpetual game of regulatory ping-pong, but given the telecom industry spends an estimated $320,000 every single day lobbying the federal government, that’s proven to be a largely impossible task.

Meanwhile, the FCC’s interest in seriously policing telecom monopolies ebbs and flows depending on which party holds the White House and an FCC majority. When the GOP is in power, the FCC largely demurs to the telecom lobby. When the Democrats take over, the FCC is generally rife with infighting between reformers and the corporate-cozy status quo. 

And that’s in the best of times, when it can even get a 3-2 majority. Sohn’s case has shown that Republicans won’t even allow a modicum of liberal policy at the agency, despite the legal requirements. 

Sohn’s popularity as a genuine reformer clashes with members of both parties afraid of upsetting telecom giants that are not only significant campaign contributors but bone-grafted to the government.

"I believe deeply that regulated entities should not choose their regulator," Sohn said at the hearing. "Unfortunately, that is the exact intent of the past 15 months of false and misleading attacks on my record and my character. My industry opponents have hidden behind dark money groups and surrogates because they fear a pragmatic, pro-competition, pro-consumer policymaker who will support policies that will bring more, faster, and lower-priced broadband and new voices to your constituents."

Reformers say the killing of net neutrality rules didn’t just kill net neutrality rules. It effectively gutted the FCC’s consumer protection authority, leaving the nation’s telecom giants largely unaccountable for years of predatory billing, substandard service, and misleading marketing.

The Trump FCC’s net neutrality repeal even attempted to ban states from protecting broadband consumers, though courts have since frowned on the effort, saying the agency can’t abdicate its responsibilities on consumer protection, then dictate the scope of state enforcement efforts.

As a result, states are now the last line of defense on everything from consumer privacy and environmental regulations to broadband consumer rights. But for every California or Maine that enacts its own net neutrality or broadband privacy rules, there are numerous states where broadband consumer protection is a performative afterthought.

Singel stated that while the industry will certainly attempt to use the EPA ruling in court to scuttle any FCC attempt to restore net neutrality, it will require some serious distortions of the law to make the argument, dramatically reducing the industry’s chance of success. 

If that is, the FCC can even pass new rules.

“For the EPA ruling to block net neutrality, it would have to be read to ban the FCC from classifying broadband at all, which would overthrow all FCC classification decisions past and future and basically say that Congress can never delegate power to federal agencies. While that might be the dream of conservatives that hate federal agencies, the EPA decision didn't go that far.”

Harold Feld, a lawyer at consumer group Public Knowledge, also told the Daily Dot that the EPA ruling shouldn’t impact the FCC’s ability to restore net neutrality. In a blog post Feld argues that while the law is murky, and the industry will most certainly try to use the ruling to scuttle any restoration of net neutrality, it’s probably not going to be effective.

“As far as net neutrality goes, it doesn’t change anything,” Feld said. “Those who were convinced Title II was doomed before yesterday will see the inkblot confirming their belief.”

The goal of the GOP and industry alliance has long been to dismantle meaningful state and federal oversight of U.S. corporations. From environmental law to telecom, that effort has been a smashing success, forcing reformers to increasingly give up on waiting on competent federal leadership and shift their focus toward state governance and locally owned alternatives to monopoly power.

And now, it may have completely stopped Biden’s best hope at the federal level to improve America’s broadband and battle monopolistic control of the telecom industry. 

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The post The new Republican claim that the FCC can’t reinstate net neutrality is wrong—but it might still work appeared first on The Daily Dot.

Gigi Sohn, President Joe Biden’s pick to fill a long-vacant seat on the Federal Communications Commission, said in a hearing that the Federal Communications Commission (FCC) can still rule on net neutrality despite a recent, potentially major Supreme Court hurdle.

During Sohn’s hearing before the Senate Commerce Committee Tuesday, Senator Eric Schmitt (R-Mo.) asked her about a recent Supreme Court ruling that might affect the FCC’s ability to reinstate net neutrality, one of Sohn’s top priorities if approved.

In July, the Supreme Court decided a case between the Environmental Protection Agency and West Virginia over coal emissions that restricted the federal agency's ability to make bold, unilateral rules, saying the power must be derived from Congress.

That ruling came after Sohn's first confirmation hearing in 2022, when she said that the FCC had the authority to reinstate net neutrality if Congress didn't act. In the year since Sohn's first hearing, Congress has yet to take any action on net neutrality.

If Sohn were approved to the FCC, it would have a Democratic majority and be able to pass net neutrality rules with a 3-2 majority, one of Biden's stated priorities when he campaigned for president.

At its core, net neutrality would mean that all internet service providers (ISPs) would be forced to treat all data and traffic equally without discrimination in favor of or against any one application or user. It would create strict rules against ISPs throttling internet service or offering paid prioritization of internet traffic.

The Supreme Court found that while the EPA may makes “unheralded” use of authority, it must be "acting pursuant to a clear delegation from that representative body."

Schmitt and Sohn engaged in a somewhat tense exchange and Schmitt repeatedly narrowed his line of questioning in order to get Sohn to give a short answer.

“Do you believe you can act on net neutrality if Congress doesn’t act?” Schmitt said.

Sohn said she believes they can.

“I believe the FCC can and has the authority to act, it doesn’t mean it won’t be challenged and the West Virginia case is going to be a challenge for net neutrality rules,” Sohn said.

Sohn was then grilled by Schmitt for saying she and the FCC could defy Supreme Court precedent. 

“Let’s add another thing to the list of reasons you should not be confirmed,” he said. “It appears to me that regardless of what the law says, regardless of what the Supreme Court of the United States precedent is, that you think you can act on issues of major economic significance or political significance just because you’re frustrated Congress hasn’t.”

However, given the FCC has previously reinstated net neutrality, it might not be considered an "unheralded" act by the agency.

Sohn also responded that she believes that the 2005 National Cable & Telecommunications Ass'n v. Brand X Internet Services Supreme Court case allows the FCC to regulate broadband.

“The Brand X case says that the FCC has the authority to decide whether broadband is a telecommunications service and an information service, and that’s kind of the crux of net neutrality,” Sohn said. “Now, whether the FCC could actually adopt net neutrality rules, I think that’s a more difficult question I’ll be honest with you.”

Sohn is in her third round of confirmation hearings after she was nominated by Biden. In 2022, she endured a slow-moving Democratic Congress and attacks from Republicans who stonewalled her nomination, forcing Biden to re-up her in 2023.

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The post Gigi Sohn says recent Supreme Court ruling won’t stop FCC from reinstating net neutrality appeared first on The Daily Dot.

Republican lawmakers pushed back against Gigi Sohn on Tuesday by bombarding the Federal Communications Commission (FCC) nominee with a barrage of criticisms that even included made-up tweets.

Appearing before the Senate Commerce Committee for her third confirmation hearing, Sohn, who was originally nominated by President Joe Biden in October 2021, was asked to respond to hypothetical statements that she never actually made.

Sen. J.D. Vance (R-Ohio) proceeded to read a fictitious tweet referring to former President Barack Obama as a "raggedy Black Supremacist" before asking Sohn if she believed anyone who made such a statement should be confirmed to the FCC.

The hypothetical statement made by Vance was purposely crafted to be similar in nature to a tweet previously made by Sohn in which she had criticized former President Donald Trump as a "raggedy White Supremacist."

Vance also invented a tweet calling Supreme Court Justice Ketanji Brown Jackson an "angry Black woman" and asked if someone who posted that should sit on the FCC. Sohn criticized Justice Brett Kavanaugh as an "angry white man" during his confirmation hearing.

The display was seen by conservatives as an example of Sohn's divisive political nature, which they have been harping on throughout the hearing.

"JD Vance exposes Biden FCC nominee Gigi Sohn as a partisan, racist clown," one user triumphantly wrote.

Vance claimed the tweets inflamed racial tensions, liking her posts to a toddler using a gun.

Progressives, however, shot back by arguing that Sohn's tweet was being taken out of context.

"So, now, when white people are critical of other white people, that means they’re racist?" one Twitter user asked.

Sohn defended herself by noting that the remarks were made as a private citizen and would have no bearing on how she would act as an FCC commissioner.

Similar critiques were made by Sen. Ted Cruz (R-Texas), who asserted that political donations made by Sohn to Democrats while her nomination was pending proved that her tenure would be controlled by her political bias.

Sohn once again argued that the donations, which totaled a little over $1,000, were made as a "citizen who just wanted to participate in the Democratic process."

According to records, Sohn gave to at least one senator who was considered to be on the fence about her nomination, Sen. Catherine Cortez Masto (D-Nev.).

Aside from her back-and-forth with Republicans, Sohn highlighted her history as a longtime consumer advocate as well as her support for reinstating net neutrality.

"The FCC has been without a majority for the entirety of the Biden administration—over two years—at a time when closing the digital divide is front and center," Sohn said during testimony. "There are too many important issues in front of the commission to lack a full complement of members, including improving the broadband maps, fixing the Universal Service Fund, closing the homework gap, ensuring fair access to broadband, and protecting consumers' privacy. Americans deserve a full FCC where I could play a critical role in addressing every one of these, but time is of the essence."

Whether Sohn's latest appearance will finally help see her nomination go through remains to be seen, although after the 2022 midterms, Democrats theoretically have the votes to push her through the Senate.

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The post JD Vance demands Gigi Sohn defend hypothetical tweets he made up at confirmation hearing appeared first on The Daily Dot.