Independent Agencies Under Threat: Gigi Sohn on FCC’s Future - Episode 637 of the Community Broadband Bits Podcast

Gigi Sohn (00:07):
It is hard to ignore the President's preference, but there's a difference between knowing what the President's preference is and being told you must do.

Christopher Mitchell (00:17):
Welcome to another community Broadband Bits podcast. I'm Christopher Mitchell. I'm at the Institute for Local Self-Reliance, and I'm here today with Gigi Sohn, Senior Fellow and Public [00:00:30] Advocate at the Benton Institute for Broadband and Society, as well as other important titles including that of Thinker, independent thinker, person who helped build the telecom field. Just going to start off by forcing you to have some humility, Gigi. So who has intimate experience with the Federal Communications Commission? Welcome back to the show.

Gigi Sohn (00:54):
Thanks for having me, Chris.

Christopher Mitchell (00:56):
I am excited to be chatting with you about something [00:01:00] that I think is pretty important, and there's a number of people that I feel like we could have brought on, but you had, after you were denied the seat on the Federal Communications Commission, you made it clear that you felt that this agency needed to be defended and it was under threat. And now the President Trump has basically said, all independent agencies are not going to be so independent anymore. We're going to unpack that, but I think you are a particularly important person [00:01:30] to hear from on this because you've thought a lot about the role of the Federal Communications Commission in modern times and how it should act. So I think I would like to start by asking you what does it mean to be an independent agency?

Gigi Sohn (01:44):
What it means in the most simple terms is that the White House cannot tell you what to do. Okay. It can suggest, it can consult, but it can't tell you what to do. The FCC, like [00:02:00] agencies, like the Federal Trade Commission, like the Federal Election Commission, like the Securities and Exchange Commission, they were created by Congress to be overseen by Congress and not subject to the whims of the White House, like the Treasury Department, like the Department of Labor, like all those cabinet agencies that are now getting filled with their heads right now. So it's a very, very different animal. These organizations, [00:02:30] these agencies tend to be set up as multi-member commissions. Although in the case of something like the Consumer Financial Protection Board, the CFPB Congress decided that this could be one administrator, but for the most part, you'll have a panel of bipartisan commissioners and whoever is in the White House gets to pick the majority, and that's what the FCC is.

Christopher Mitchell (02:55):
So we have an executive branch run by the President of United States [00:03:00] who has a cabinet of agencies that he has a lot of power over indirectly.

Gigi Sohn (03:05):
Correct.

Christopher Mitchell (03:06):
And then there's kind of an outer ring of agencies, the independent agencies where the president sets the agenda by selecting the people. And Congress has decided that some of those people can only be fired with cause and specific causes, whereas the Secretary of State could be fired for having the wrong color hair or not brushing their teeth.

Gigi Sohn (03:27):
Well, let me be very clear though, Chris, there's nothing [00:03:30] in the Communications Act that says an FCC Commissioner can only be fired for cause.

Christopher Mitchell (03:37):
Okay. May have heard that. So we have a variety of agencies that have different rules.

Gigi Sohn (03:42):
Correct. So the NLRB, the National Labor Relations Board in its organic statute, when I say that the statute that created the NLRB, it says point blank, no commissioner can be removed, no member can be removed unless [00:04:00] they've done something really, really bad, you've got to be removed for Cause that is unfortunately not in the FCC's Charter. It's not in the Communications Act.

Christopher Mitchell (04:11):
And so I think one last piece of table setting, and I'm curious how you reacted. I heard an interesting discussion. It was actually with George Conway and he was saying that it's pretty clear that the settled law more or less, is that Congress can create some number of boards and people [00:04:30] that are insulated from the President, but they can't say that everything is insulated from the President, and there's some line between everything and nothing that Congress can designate as independent agencies, and we're about to see that tested. I think that's accurate context, right?

Gigi Sohn (04:47):
Yeah, it's accurate. I mean, look, the fact that you've barely heard a peep from at least one side of the aisle, I don't think I'm hearing a lot of peeps from either side of the aisle about the way that the President is sort of [00:05:00] trying to rip away this independence really gives me, really causes me great agita. I mean, again, these are creations of Congress and Congress ought to be defending them, and it shouldn't matter whether you're a Democrat or Republican, but I'm not hearing a whole heck of a lot about this, and I don't know why. Maybe it's because the President has flooded the zone with so many things that people don't know what to protest first. Right? He's also taken away the power of the purse from Congress, and [00:05:30] you're hearing some meow, meow, meow from people of his own party, but not the kind of outrage that you would think would Congress is a co-equal branch of government would say, excuse me, this is our job, not your job. But boy, that's not happening as much as I would've thought.

Christopher Mitchell (05:47):
Yeah. I'm there with you. I frankly think that I'm trying to avoid this being too unappetizing for who don't share my politics, but I feel [00:06:00] like the framers anticipated a president that would act as strongly and decisively as Trump, let's say, and they did not expect a Congress that would be so supine as not to defend its interests. And I find that disappointing, but this is not a show about theory of the founders perhaps,

Gigi Sohn (06:20):
But let me remind people that what's good for the goose is good for the gander, right? If Trump succeeds in [00:06:30] his goal of having what they call the unitary president, the President controls everything. A Democrat gets elected, a progressive gets elected, well then they have the same power, and is that really what you want?

Christopher Mitchell (06:43):
I mean, you must have felt like a slap across the face. The number of senators that I have seen saying the President won the election, he gets to get the confirmations he wants. I don't know why you waited so long to be thrown away, Gigi.

Gigi Sohn (06:58):
Let's not go there [00:07:00] for a different episode. I mean, yeah, I'm happy to say that when I see the number of unqualified and unethical people getting elected, even with Democratic votes, it gives me a little bit of PTSD, but that's not what we're talking about.

Christopher Mitchell (07:16):
Yes. No, right. I appreciate your strength of being able to continue to try serve these issues. Let me ask you about the Federal Communications Commission. Why is it important, getting into your concern about making [00:07:30] sure that everyone benefits from wired and wireless communications in this country, why should the head of the Federal Communications Commission be able to ignore a President's preference on an issue? And is there an example that you can think of where that's happened?

Gigi Sohn (07:45):
It's hard to ignore the president's preference, but there's a difference between knowing what the President's preference is and being told you must do. And I mean, I'll give you an example ripped from my own experience at the FCC. [00:08:00] So when we were doing Net Neutrality, when the FCC was considering reinstating Net Neutrality under Tom Wheeler, and by the way, we had to reinstate it because the previous FCC chair, Julius Genachowski tried to adopt rules under Title I of the Communications Act, that is the title that is less regulatory than Title II of the Communications Act. Let's just say it that way. And he got tossed from [00:08:30] the DC circuit, which said, I'm sorry, you can't adopt rules that are regulatory under a deregulatory part of the Communications Act. I'm making this as simple as possible. Now, Tom Wheeler, I'll be honest, and he'll admit he wanted to adopt strong Net Neutrality rules and stronger ones that Genachowski adopted, but he really didn't want to go the title two route because at the time, that was like the third rail. And [00:09:00] I mean Genachowski, to be fair to him, and I often wasn't when I was at Public Knowledge, he was getting reamed by both parties for even suggesting to go title II. And he did suggest he didn't ultimately go there, but Wheeler didn't want to go there. He thought it was a third rail. He was trying all these other theories, which I won't get into.

Christopher Mitchell (09:22):
If I could summarize, Tom Wheeler had things he wanted to accomplish. He didn't want to use a lot of time and energy on something [00:09:30] that wasn't in his top priorities. And he ultimately, I think to his credit, did wrestle with it. But I can appreciate the frustration of someone who has things they want to accomplish limited time, and this is what everyone has to choose between.

Gigi Sohn (09:42):
And I think that's a really good point, but because very early in my tenure there, so I got to the FCC in end of 2013, and so did he, I think a week after he got there, it wasn't until January, 2014, we got the Net Neutrality decision out of the DC circuit saying, sorry, you can't use Title I [00:10:00] to, so yes, he was hoping this was not going to be on his agenda. He wanted to reform E-Rate in the Universal Service Fund. He had so many other things he wanted to do. You're right. And this thing was taking up a lot of time because that's where all the fervor was. So we were going to move forward with a different theory, and I remember I was having a meeting with some Wall Street dude to my office and somebody rushed into my office and said, President Obama was just on YouTube calling for [00:10:30] Title II Net Neutrality.

(10:33):
Now at that point, Jeff Zients, who was the chief of staff at the time, it wasn't chief of staff, but he was high level, high level staffer. He did tell Wheeler a couple of days before about what the president was going to do, but there was no directive that you must do. We're just telling you the president's going to voice his opinion. I didn't even know about it. Nobody told me. But once the president did that, number one, was Tom Wheeler going to get the two other Democrats votes [00:11:00] for anything else? Not really. So I think he felt like he had really at that point, no choice and did Title II Net Neutrality, which was the right decision, which was the decision I was urging him to do from the very first day we found out that the DC Circuit overturned. It was not a smooth ride for me, to be perfectly honest.

(11:21):
But yeah, obviously he heard what the president said as something similar happened in George W. Bush time where he expressed [00:11:30] a desire to deregulate the media market, right? Deregulate media ownership rules. Now, would Michael O' Powell have done that anyway? Of course, but still it was the President making very clear to the FCC what he wanted, and that's not prohibited, right? The president's not prohibited from expressing an opinion. What they're prohibited from doing is putting their thumb on the scale. Now, when we talk about this new executive order, this is much more than putting one's thumb on the [00:12:00] scale. This is essentially running the agency from the White House.

Christopher Mitchell (12:04):
Yeah. There's a line that I picked up from John Bodkin and Ars Technica, who's a terrific writer on these things. His employees of independent agencies would also be forbidden from issuing legal interpretations that contradict the president's legal interpretations. Now, I don't like the sentiment of that. I actually, I'm super curious how you even operationalize it.

Gigi Sohn (12:28):
Well, I don't know how you operationalize [00:12:30] running an agency like the FCC, which is so highly technical from the White House, and those folks tend to be generalists, right? I don't think there's a spectrum expert. Well, there probably is. I mean, the National Economic Council does have somebody, a wonderful person named Robin Calwell who knows a lot about this stuff. But is she going to be basically pulling the strings, jotting tittle on every single technical issue? No. I mean, for the most part, [00:13:00] the White House doesn't have that kind of expertise, but I think you put your finger on what is, I think the most remarkable part of this executive order is the part that says that the White House shall interpret what the law is. I mean, at that point, the commissioners are just vessels. If the independent agency is not interpreting its organic statute, then what the hell is it doing?

(13:26):
I mean, it's bad enough. Again, the executive order requires [00:13:30] basically pre-approval from the White House of draft and final rules. It can adjust the budget depending on what its needs are. I mean, for the White House to adjust the budget of an independent agency, again, unheard of. It has to help or basically put its thumb on the scale for strategic planning. I mean, these are all things that agency did on its own accord, but to me, the most kind of mind blowing is [00:14:00] we shall interpret the law, and you shall not only in your rulemaking, but in your litigation and basically everything you do, you must follow our interpretation of the law.

Christopher Mitchell (14:13):
Yeah. This is where I think it's worth noting why Congress wants expert agencies to be doing this without being interfered with on the basis of day-to-day politics. I think about the fact that these decisions should be guiding industry [00:14:30] in terms of where we're going in terms of privacy and security issues that have perhaps decisions that are made should be guiding another 10 or 20 years of private investment and setting the rules for that. And you don't want those rules to be set differently in six months than now, based on the politics with China or some other thing that comes through the White House, I think.

Gigi Sohn (14:54):
Yeah. So here's the irony. One of the many, many ironies, so a lot of folks in this administration [00:15:00] pushed for the Chevron Doctrine, which gave agencies discretion in the way they interpreted their statute. They wanted that overturned, which they did successfully, and in its place is the Loper Wright decision, which says, okay, the court shall decide what the law is. So think about that for a minute, but one of the rationales, and it's not exactly a rationale I disagreed with for going to the court interpreting the law, was that every time there was a new [00:15:30] administration, a position changed. And we obviously have seen that with Net Neutrality, right? So Wheeler says, Title II Pai says Title I, Rosenworcel says Title II, Carr is Title I. So there's some legitimacy in that. But by putting the White House in complete control of an independent agency like this, you're introducing that same flip-flop [00:16:00] ability into an independent agency's decisions.

(16:05):
And you made another point, which I really want to make this very clear. It's important, as you well know, industry thrives on certainty. They thrive on speed such as it is in the government, and it's not always speedy, I'll admit, and they thrive on certainty. Well, when you're going to have the White House reviewing every single regulation, interpreting the law itself, [00:16:30] figuring out budgets, planning, consulting with the agency constantly, that is going to inject a great deal of delay and a great deal of uncertainty, particularly with this White House. I tell people this all the time. Throw out your notions of what you think a Republican administration ought to be doing in the regulatory sphere. Just throw them out.

Christopher Mitchell (16:56):
Let me give you an example. So I was mystified [00:17:00] by this and I was not supportive of it, but there was elements of the Trump Administration five years ago, six years ago, that wanted to take over the spectrum and create a national 5G federally owned wireless network. I thought it was a terrible idea, but at this point, that could be policy of the FCC without any of the commissioners agreeing to it.

Gigi Sohn (17:21):
Absolutely. Look, my example is moving to block the AT&T - Time Warner merger. Now, I was delighted, [00:17:30] but that was not a typical thing that a Republican antitrust AG would do because it was a vertical merger, but it was a vertical merger involving Time Warner the parent company of CNN. So I mean, this executive order injects enormous uncertainty on top of uncertainty of this administration to begin with, and again, it will without a doubt, slow things down to a crawl. So, so much for government [00:18:00] efficiency, this is going to be the exact opposite,

Christopher Mitchell (18:04):
Right? In practice, I think one of the things that I saw from Blair Levin's reaction to this was a sense of, as you mentioned, someone on the National Economic Council, which advises the president, the executive branch might know quite a bit about this stuff. Now that person's going to spend their day educating the people around them as to why this is the right decision. How many people are just going to say, oh, we're going [00:18:30] to go with her because she's the only person that knows any of this stuff. To me, it seems like not only is it going to slow down the FCC and make the National Economic Council move much more, you're giving them so much more responsibility Now, are they going to have more staff to deal with all these 30, 40 independent agencies that they're now reviewing and babysitting? That's remarkable.

Gigi Sohn (18:50):
It is remarkable, and I think like many other things as administration is doing, rather than using a scalpel to government, [00:19:00] which I would agree with, they've taken a sledgehammer to it without really thinking about the unintended consequences. So Robin, I feel sorry for you because it's going to be a lot more work on your plate, and it's again, not just going to be the FCC, it's going to be dozens of other agencies.

Christopher Mitchell (19:18):
Yeah. I have to assume that this will be reversed, and then perhaps they'll try to go about it in a different way. But like you said, there's [00:19:30] so much that's happening. I feel like this can easily fall through, but it's a real threat to a lot of things. I think the FCC is one of the lesser concerns. Frankly, I think the SEC Security and Exchange Commission, the Federal Reserve Board, are going to have much more immediate impacts on our lives.

Gigi Sohn (19:47):
The Federal Election Commission, I mean, now granted, the FEC has been dysfunctional for a long time because it's set up with six,

(19:55):
Three and three. So Congress has kept it, [00:20:00] and I have to say, I do have to point my finger at the Republican Party has basically kept it deadlocked for years and years and years, but that one I think is particularly dangerous given the history of this administration and elections.

Christopher Mitchell (20:14):
So Congress has sidelined the Federal Communications Commission with regard to distributing funds. I think in a good way. I think it's the right thing to do given its capacity in recent years. The maps, we just did a Connect This!episode in [00:20:30] which we're talking about how bad the maps are with millions of rural locations still misidentified. What do you think the future of the FCC is? Let's assume for a second that we more or less come out of the Trump administration with it being an independent agency. No one has a lot of faith in it. Do you have a sense of what comes next for it?

Gigi Sohn (20:53):
Well, look, I'm not as sanguine as you are that this will get struck down [00:21:00] by the courts.

(21:01):
I mean, and you may know that the administration is going after a precedent called Humphrey's Executor, which this was actually Franklin Delano Roosevelt's time where the Supreme Court said, you can't fire an independent agency head before their term is up, and they're going after that, and they may well, with the Supreme Court. So I'm not so sanguine that this thing is going to get knocked down. Look, the FCC has become nearly irrelevant over the last [00:21:30] several years anyway. I think it makes it even more irrelevant. Now, what can it continue to do? Obviously under this administration, it can continue to deregulate, right? So it'll deregulate media ownership regulations. The chairman's already doing, I would say, an outstanding job, and I'm somewhat being a little bit facetious of Sare rattling using his bully pulpit to scare the living daylights out of broadcast licensees, and he doesn't even have a majority, so it'll have a bully pulpit

Christopher Mitchell (21:59):
For people who aren't familiar. [00:22:00] That's because the fifth person hasn't yet been confirmed by the Senate.

Gigi Sohn (22:06):
They haven't even had a hearing yet, and who knows? I've heard rumors about Trump maybe wanting to fire one or both of the Democrats. Now, the law says it has to be bipartisan, but the law doesn't really seem to mean all that much to this administration. So I have no idea what is to come for the two Democratic [00:22:30] commissioners. But the larger point is the FCC also doesn't have spectrum authority, authority to auction spectrum. That would be a natural thing for them to do, and probably, again, they probably would have to run whatever idea they would have to auction Spectrum up the flagpole, but that's something I think that the administration would want them to do. Another thing on the agenda is this whole idea of regulating tech platforms through Section [00:23:00] 230 of the Communications Act, which provides protection from liability for platforms, Facebook like X, if they post a third party content that somebody finds objectionable,

Christopher Mitchell (23:15):
Right? It includes me as well. Anyone that hosts a website that has third party content.

Gigi Sohn (23:19):
Exactly. Reddit. I mean, you name your favorite medium, Substack, you name it, it includes it. Now, the previous Trump FCC wanted [00:23:30] to actually started a rulemaking, which never went anywhere because the administration changed. We know who's going to interpret the law at this juncture. It's going to be the White House. Will they move forward? It's a good question because now Elon Musk actually has a stake in how this turns out, but I suspect that the FCC will move forward with this, but the White House will have a much heavier hand in determining how the law is interpreted than just the FCC.

Christopher Mitchell (24:00):
[00:24:00] One of the things I've been telling people that ask me is that at this point, all scenarios are low probability scenarios. Whatever happens is unlikely to happen, but there's just a lot of unlikely scenarios, and one of them is going to play out.

Gigi Sohn (24:14):
Yeah, I mean, again, this is all about uncertainty, and to the extent that there were industry players who supported this, who voted for this, I'm not sure it's going to land up to be what they wanted it to be. I feel the same way, frankly, about the demise of Chevron. [00:24:30] A lot of what the FCC is in the middle of is fights between industry, and don't you want precedent to kind of take the lead? But that's out the window now, so it's kind of a fraught time if you are any kind of stakeholder. Obviously, if you're the public, it's huge, but even if you're an industry stakeholder, it's a very, very fraught time for you.

Christopher Mitchell (24:56):
Thank you so much today for your time, Gigi.

Gigi Sohn (24:59):
Of course, my pleasure. [00:25:00] Ask me back again.

Ry Marcattilio (25:02):
We have transcripts for this and other podcasts available @communitynets.org/broadbandbits. Email us at podcast@communitynets.org with your ideas for the show. Follow Chris on BlueSky. His handle is @SportShotChris. Follow communitynets.org stories on BlueSky, the handles @communitynets. Subscribe to this and other podcasts from ILSR, including Building Local Power, Local Energy [00:25:30] Rules, and the Composting for Community Podcast. You can access them anywhere you get your podcasts. You can catch the latest important research from all of our initiatives if you subscribe to our monthly newsletter @ILSR.org. While you're there, please take a moment to donate your support in any amount. Keeps us going. Thank you to Arnie Hesby for the song Warm Duck Shuffle, licensed through Creative.