Analysts at New Street Research say Federal Communications Commission nominee Gigi Sohn has a "decent but not certain" chance of confirmation before the year ends.
Federal Communications Commission nominee Gigi Sohn may finally be confirmed to her post in a Senate session following midterm elections in November, but conversations regarding her potential replacement are hovering.
President Joe Biden selected Sohn as his FCC nominee nearly a year ago. Since then, controversy over her social media posts and her recusals from commission items relating to retransmission consent and TV broadcast copyright have given senators on both sides of the aisle reason to believe she is too left-leaning to effectively be a commissioner.
A handful of Democratic senators have indicated they are ambivalent on Sohn, including Sens. Joe Manchin, D-W.Va., and Catherine Cortez Masto, D-Nev., who have not yet taken public stances on the nominee.
In the nearly evenly split Senate, all 50 votes from a party are needed to pass disputed nominations. However, it is likely that Democrats previously opposed to her nomination will stand with other members of their party in order to finally move the nomination along, said Public Knowledge Senior Vice President Harold Feld. Sohn co-founded Public Knowledge and served as CEO from 2001 to 2013.
"Reality is setting in, and making sure the agency can fully function is critical," Feld said. He added that while her confirmation in a regular Senate session would be favorable, he believes it is more likely to happen post-midterm elections in the Senate's "lame-duck" session.
History of lame-duck sessions
The term "lame duck" refers to members of Congress whose terms are about to end due to losing an election. This year's lame-duck session, occurring after the Nov. 8 midterms, allows those departing lawmakers to wrap up unfinished business before stepping down.
In recent years, lame-duck sessions — which typically run from mid-November to the end of the holiday season — have addressed a variety of topics including nomination matters, according to congressional data.
Exploring options
Boutique firm New Street Research believes Sohn has a "decent but not certain" likelihood of confirmation.
"We think that regardless of who wins control of Senate in the midterms, Sohn will be on the list of lame duck confirmations but the priorities and trade-offs in that limited time make actual confirmation odds highly volatile," wrote policy adviser Blair Levin in a note to investors.
Names of potentially less polarizing candidates are circulating and may be seen as attractive alternatives to congressional members opposed to Sohn's confirmation. A former FCC official who spoke anonymously due to knowledge of nomination proceedings told Market Intelligence that two candidates are being considered to replace Sohn in the event her confirmation fails.
The official, citing conversations with a Democrat lobbyist close to the White House, said retired telecom attorney Anna Gomez and Susie Perez Quinn, chief of staff for the National Aeronautics and Space Administration, are on the docket as possible replacements.
Gomez served as deputy assistant secretary for communications and information at the National Telecommunications and Information Administration under former President Barack Obama and was later a partner at Wiley Rein LLP representing telecom clients. Quinn served as director of government relations at the National Governors Association. Before that, she spent 17 years in the Senate managing policy and communications affairs.
The former official said those nominees would satisfy enough Republicans to garner bipartisan support for a confirmation that would complete the FCC's lineup. They added that there is a chance Sohn is confirmed in the lame-duck session, but it is unclear if ambivalent lawmakers would change their minds.
Senate Commerce Committee ranking member Roger Wicker, R-Miss., told Market Intelligence the White House should pull Sohn's nomination. "I've made my views clear," Wicker said when asked for elaboration.
Wicker initiated a second nomination hearing for Sohn over her retrans and copyright recusals, as well as her involvement in the now-defunct TV streaming service Locast, where she served as a board member. The Senate Commerce Committee is responsible for the procedure on Sohn's nomination.
A Senate Commerce spokesperson did not respond to a request for comment about Washington Sen. Maria Cantwell's stance on the matter. Cantwell, a Democrat, chairs Senate Commerce and has voiced support for Sohn since she was nominated last year.
Senate Majority Leader Chuck Schumer, D-N.Y., did not provide an update on the matter. "I have to check on it," Schumer said.
The White House did not respond to a request for comment. Earlier this year, a White House spokesperson told Market Intelligence the administration continues to support Sohn's nomination.
Impact to pending TEGNA sale
Standard General LP's announced acquisition of television broadcast station group TEGNA Inc. is expected to be completed later this year following an FCC review. Members of trade organizations including NCTA - The Internet & Television Association and the Communications Workers of America believe the merger will lead to higher subscriber rates and a loss of journalism jobs. Both organizations have urged the FCC to halt the merger.
The FCC is currently led by two Democrats and two Republicans. Sohn's appointment would shift the power balance in favor of the Democratic party, but this would not have any major impact on how the FCC handles the merger, according to New Street's Levin.
"We think the two Republicans would vote to approve the deal and the two Democrats would like to impose conditions on jobs and prices," Levin wrote. "Approval requires three votes. If we are right, to move the deal forward, the Republicans would have to vote with the Democrats or the deal just stays in limbo."