Smear campaign targets nominee who would be FCC’s first openly gay commissioner

A campaign to block the appointment of a commissioner to the Federal Communications Commission has turned ugly.

Gigi Sohn, who was first nominated in October 2021 to complete the FCC’s lineup of five commissioners, was recently the target of articles by DailyMail.com and FoxNews.com that sought to connect her work with a leading digital rights group to sex trafficking and a dominatrix. Sohn is on the board of the Electronic Frontier Foundation, or EFF, a widely respected nonprofit that advocates for privacy and free expression online.

Those articles came after what has been a particularly long wait to have Sohn approved by the Senate, and they’ve triggered growing outrage.

“The press stories ginned up by Ms. Sohn’s opponents are beneath scurrilous and are beneath the dignity of this Committee,” wrote Preston Padden, a former president of ABC Television Network and a founding executive of Fox Broadcast Co., in a recent letter to the Senate Committee on Commerce, Science and Transportation. 

Both articles referred to the EFF’s opposition to a law known as FOSTA-SESTA that aimed to crack down on websites for knowingly facilitating sex trafficking that was opposed by much of the tech community. The Daily Mail also pointed out that the EFF honored a dominatrix with its “pioneer award” for what the nonprofit said was her “research into sex work and equitable access to technology from a public health perspective” in relation to FOSTA-SESTA.

Padden, in a phone interview with NBC News, emphasized how shocked he was by the articles.

“I’m old. I started doing legal lobbying work in the industry in 1973,” Padden, who is now the principal of the consulting firm Boulder Thinking, said. “And I have never seen anything like this. I’ve never seen anything like the micro targeting of senators to try to defeat a nomination. And I’ve never seen anything like this smear campaign.”

It remains unclear who or what was behind the articles by the Daily Mail and Fox News.

Neither the Daily Mail nor Fox News responded to a request for comment. 

Sohn declined to comment.

The campaign against Sohn had already moved beyond traditional Washington lobbying. 

The American Accountability Foundation, which calls itself a “nonprofit government oversight and research organization that uses investigative tools to educate the public on issues related to personnel, policy and spending,” first called for the withdrawal of Sohn’s nomination in February 2022. A New Yorker investigation from April tied the foundation to a variety of aggressive political attacks on Biden nominees including Justice Ketanji Brown Jackon as well as many lower-profile nominees. The foundation’s website invites visitors to read what it calls the “hit piece” published by The New Yorker. The group’s funding is private.

An NBC News review of Facebook’s “Ad Library” showed that the American Accountability Foundation has spent at least $229,000 on ads attacking Sohn since April 2022, according to estimates published by Facebook, with 12 ads having been launched on Jan. 25 and 26. 

The most recent ads from the foundation prior to that recent purchase appeared in November. Most of the ads label Sohn as “too extreme” or her views on police reform, which are not relevant to her work at the FCC but have drawn scrutiny. Almost all the Facebook ads the foundation ran in the second half of 2022 and thus far in 2023 targeted Sohn.

The American Accountability Foundation did not respond to requests for comment.

The Fraternal Order of Police has taken issue with her “animus toward law enforcement officers” and her ties to the Electronic Frontier Foundation because of its promotion of encryption for messaging apps.

Jim Pascoe, the order’s  executive director, told NBC News that his organization did not coordinate with any other group in attacking Sohn, and that he simply opposes Sohn because he believes law enforcement should be able to break encryption in times of emergency. The FCC does not have oversight of that issue. 

“If the FCC had a role, we would certainly be alarmed if she was a part of that role,” he said.

The nomination of Sohn, who would be the FCC’s first openly gay commissioner, languished in a Senate committee where united Republican opposition and inconsistent Democratic support have made her confirmation a low priority. President Joe Biden renominated her in early January.

“Chairwoman [Jessica] Rosenworcel believes Gigi Sohn is a knowledgeable nominee with a long record of commitment to the issues before the FCC,” Paloma Perez, the FCC’s press secretary, said in an emailed statement. “She has consistently re-iterated that the Commission was designed to have five commissioners and looks forward to that day.”

The already contentious nomination process went from aggressive to ugly with the articles about Sohn, which alarmed many of her allies and even some of her professional rivals.

Gary Shapiro, the president of the Consumer Technology Association, a large pro-business lobbyist group, has butted heads with Sohn for years over various issues.

But he said the recent articles about Sohn cross a line.

“There’s a little homophobia going on here. It’s whispered around in the Senate,” Shapiro said. “And that’s a shame. It’s no secret that Gigi would be the first openly gay FCC commissioner. I like to think as a country we’re past that, but apparently we’re not. This smear campaign, it’s been two years already.”

“I think a major injustice is being done here to a super high-quality person,” Shapiro added.

Sen. Ron Wyden, D-Ore., has also praised Sohn. “Between her years working on behalf of regular Americans who lack affordable, reliable access to the internet and her experience inside the government, Gigi Sohn is the epitome of what an FCC commissioner should be,” he said in a statement days after the Daily Mail and Fox News articles were published. “No amount of astroturfed attacks on behalf of the Big Cable companies will change that. Ms. Sohn has broad support from across the political spectrum and should be confirmed as quickly as possible.”

Sohn’s holdup means the FCC is unable to make some major moves, most notably around a law put in place by the Biden administration. 

Biden’s infrastructure bill, signed in November 2021, prohibits internet providers from discriminating against customers based on categories like race, a practice that scholars and journalists have repeatedly verified as a problem.

The law leaves it to the FCC to decide, by this November, how to define that discrimination, a decision that could cost the internet provider industry billions of dollars.

“This is a multibillion dollar-regulatory decision,” said Ernesto Falcon, senior legislative counsel at the Electronic Frontier Foundation, who specializes in some of the topics the FCC regulates, particularly internet access. “It’s the first time we’ve ever had a federal law that explicitly stated broadband access has to be given to people equally, regardless of their income, race, and a number of other protected classes.”

Industry players like AT&T have argued they prefer a definition that requires explicit evidence of intent to discriminate, like internal emails of executives saying they intend to discriminate against certain people. Many Democrats and public rights groups want to define it by evidence of who gets worse internet access, pointing to studies and investigative reports that show providers often offer high-speed internet in richer, white neighborhoods and slower speeds in poorer neighborhoods and communities of color. 

The FCC would be unlikely to pass rules promoting the access definition without Sohn or another Democrat to complete that majority.

Alex Byers, director of communications and public relations at ATT, said in an email: “We have not taken a position on Gigi Sohn’s nomination, have not asked any third-party organization to take a position, and have not funded any campaigns against her nomination.”

One lobbyist who works on telecommunications issues said that pressure from police groups had taken a toll, most notably with Democratic senators who ran for re-election in 2022. Now, she faces the same issues with some who are up for re-election in 2024.

“You’ve got a couple of [Democratic] senators, last time it was folks up in 2022, who were afraid to vote for her because of some of the comments she’s made or positions that she’s taken that got her crosswise with law enforcement,” the lobbyist, who asked to withhold their name to discuss private conversations, said. “Now, the ‘24s are up. … If you lose two it’s done.”

The FCC is an independent government agency tasked with regulating interstate communications that started out overseeing the emergence of radio and eventually adding the television, satellite and wireless industries. Commissioner nominations for the FCC are usually dull affairs that rarely make news outside of trade publications. 

The FCC has five commissioners nominated by the president and approved by the Senate, with a partisan slant to whichever party holds the Oval Office. During President Donald Trump’s term, the FCC counted three Republican commissioners to two Democrats. During President Barack Obama’s term, there were three Democrats and two Republicans.

Biden’s FCC has been different, frozen at two Democrats, two Republicans and one empty seat. That leaves the FCC essentially frozen, unable to make major moves. It’s a situation that suits the major telecommunications companies just fine, with their primary regulator in suspended animation.

Sohn’s appointment once looked straightforward. Sohn is well known in the telecom world, having worked under FCC Chairman Tom Wheeler from 2013 to 2016. Jessica Rosenworcel, who Biden nominated as FCC chair at the same time he nominated Sohn as a commissioner, easily passed a Senate vote in December 2021.

And while Sohn did draw rebukes from some Republicans, she did receive some support from right-leaning news outlets Newsmax and One America News network. 

More than a year later, Sohn has yet to receive a Senate confirmation vote. A third committee hearing was scheduled and then delayed.

“And that’s the definition of success for the lobbyists,” Wheeler said in a phone interview. “When the regulated get to pick their regulator, and delay the establishment of a democratic vote, they succeed in neutering the agency.”

FCC nominations can get contentious and have become a bit more high profile in recent years, most notably as internet regulation and net neutrality issues have gained national attention. And some have taken a while to go through. Sen. Ted Cruz, R-Texas, blocked Wheeler’s Senate confirmation out of concerns that he would push for more transparency around political TV ad buys.

Many who follow the FCC noted the aggressive lobbying of major telecom companies. Jessica Gonzalez, co-CEO of the media advocacy nonprofit Free Press, said the current situation is beneficial for them.

“A 2-2 commission, like a split Republican-Democrat Congress, is good for them, because it means that less regulations are likely to flow and they will have to do less,” Gonzalez said. “This is all about them, minimizing the amount of money they have to spend and maximizing the amount of money they can make, and keeping the commission at bay by not allowing Biden to have his nominees confirmed is an effective strategy for all of the above.”

The telecom industry is among the most enterprising with its lobbying. Telecom companies spent more than $117 million on lobbying in 2022, according to OpenSecrets, a nonprofit that tracks money in U.S. politics. Comcast, the parent company of NBCUniversal and NBC News, spent more than $14 million.

Sena Fitzmaurice, a Comcast spokesperson, referred to an earlier company statement on Sohn, which said she “would bring her tireless advocacy on the critical issue of connecting all Americans to broadband back to the FCC. We have long shared that commitment.”

Comcast did not answer questions about whether it had lobbied against Sohn.

There could be some momentum to get Sohn across the finish line. Padden, the former media executive, said he had recently emailed with Rupert Murdoch, his former boss, about Sohn. Murdoch had expressed “some misgivings about her candidacy.”

Padden said he told Murdoch about her experiences working with Sohn, most notably on securing FCC waivers needed to launch the Fox broadcast network.

“I explained that to Mr. Murdoch. And his response to me was ‘I stand corrected,’” Padden said. “Now, he didn’t say he loved her, and he didn’t say he wanted to see her on the FCC, but he did say ‘I stand corrected.’”