Should the FCC Review Fox’s “Character” Qualifications to Remain A Broadcast Licensee?

 

As Tucker Carlson said almost nightly on his Fox News show, “I’m just asking the question”!

 

I was a Fox executive from 1990 to 1997 helping to build Fox Broadcasting Company (“FBC”), the long sought fourth free-over-the-air commercial TV network.  I successfully secured for Fox, and its principal Rupert Murdoch, waivers of numerous laws and regulations necessary/helpful to launch FBC.  My colleagues and I were proud to build FBC and a new brand in television – FOX, a brand with integrity that stood for competition and innovation (like showing viewers the scrimmage line electronically in NFL broadcasts).  In my time at Fox I greatly admired Rupert whose vision and boldness made our good work possible.

 

In addition to FBC, Fox owns cable channels like Fox News Channel (“FNC”) and 28 local broadcast TV stations.  The Federal Communications Commission (“FCC”) has almost no regulatory authority over cable channels like FNC but heavily regulates local broadcast stations that use public airwaves.

 

Section 308 (b) of the Communications Act requires the FCC to assess the character qualifications of parties licensed to broadcast on the public airwaves.  The FCC considers conduct at the broadcast station and elsewhere.  The FCC has revoked broadcast licenses based on character issues.

 

On March 31, 2023, Judge Davis of the Superior Court of Delaware, in the Dominion case, issued a written Order finding that Fox repeatedly presented false news – “news distortion” in FCC parlance – about the 2020 election on FNC.  Judge Davis’s Order states: 

 

“The evidence developed in this civil proceeding demonstrates that it is CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true. Therefore, the Court will grant summary judgment in favor of Dominion on the element of falsity”. Emphasis in original.

 

Fox did not appeal this decision.  In fact, it issued a Statement in which it acknowledged the Judge’s ruling.  

 

The record before Judge Davis is full of evidence that Fox management and FNC personalities knew that the 2020 election had not been stolen but were worried that if they told the truth it would alienate their core viewers.  In my opinion, that means that the false news was presented knowingly.

 

In a month’s long series of email exchanges, I tried to get Rupert to stop the false news on FNC.  Without my knowledge, Fox produced those emails as part of discovery in the Dominion case. I would not otherwise share them here.

 

On January 5, without a clue what would happen the next day, I sent Rupert the following email:

 

“It would be a great service to the Country that I know you love, and to the party, to record and saturate a spot with Sean, Tucker, Laura, etc. saying something like: “We will never stop fighting for Freedom and the American way of life and against extreme liberal policies. While we are frustrated just like you are, the facts are that President Trump and his lawyers have not produced any evidence of widespread voter fraud that would change the fact that Joe Biden was elected President on November 3.  All of us at Fox will work tirelessly for you and to serve as a watchdog on the Biden Administration. Meanwhile, please wear a mask and get vaccinated so that we can crush the virus.” 

 

I knew from earlier email exchanges that Rupert did not believe that the election had been stolen.  This was his response: 

 

“I’ll think about it.  Perhaps something like that in a few days!”

 

 

From the finding below in Judge Davis’ Order we know that Rupert followed up on my suggestion on the same day:

 

‘On January 5, 2021, Rupert Murdoch emailed Ms. Scott [CEO of FNC] that it was suggested the “prime time three should independently or together say something like ‘the election is over and Joe Biden won’. Ms. Scott forwarded it to Ms. Cooper and said “I told Rupert privately they are all there – we need to be careful about using the shows and pissing off the viewers but they know how to navigate”.

 

To my knowledge, no such statement ever was telecast.

 

The same senior management including Rupert and his Son Lachlan, oversee both FNC and the Fox Owned television stations – they call the shots.  FNC produces a weekly program, “Fox News Sunday” that is broadcast by the Fox Owned Television Stations.  FNC also provides national and international news coverage to the Fox Owned television stations.

 

False news has consequences.  Despite all the factual information available to the contrary, millions of Americans, including Fox viewers, believe that the 2020 election was stolen.  The rioters at the U.S. Capitol on January 6 were chanting “Stop the Steal”.  

 

To the best of my knowledge, the FCC never before has been confronted with a judicial holding that a broadcast licensee knowingly and repeatedly presented false news.  It is hard to imagine an issue that more directly impacts a broadcast licensee’s character qualifications.  Can anyone imagine Walter Cronkite, Peter Jennings or Tom Brokow (and their bosses Bill Paley, Tom Murphy and Jack Welch) knowingly and repeatedly presenting false news?  It simply is unimaginable.

 

So, the question arises, should the FCC review Fox’s character qualifications to remain a steward of the public airwaves.  

 

Just asking the question.

 

Preston Padden served in multiple executive roles at Fox; as President of the ABC Television Network; and as Exec VP of The Walt Disney Company

Fighting for the right of consumers to pay for only the cable channels they want, former Conservative Republican Senate Commerce Committee Chairman John McCain repeatedly asked, ‘Why should the little old lady living on Social Security in Gila Bend, AZ have to pay an extra $7 a month because ESPN (that she never watches) is a mandatory part of her cable bundle?’ His tireless Republican advocacy for competition, consumer choice and lower prices for Cable and Telecomm services was shared by other former great Republican Communications Policy Leaders like Billy Tauzin who waged a courageous one-person floor fight to give satellite TV services access to leading cable channels. [Full disclosure, working for Disney/ESPN at the time I lobbied against Senator McCain on cable consumer choice. I was no more principled then than are other industry lobbyists today.]

In FCC nominee Gigi Sohn’s lifelong advocacy for competition, consumer choice and lower prices, there is the unmistakable echo of these former great Republican Communications Policy Leaders. And yet, at her third confirmation hearing, some (not all) of today’s Senate Commerce Committee Republicans sounded like they were aligning themselves with Cable/Telecom industry giants instead of with consumers. And at other times they harped on extraneous issues completely unrelated to the mission of the FCC.

The FCC needs Gigi Sohn. And her advocacy for competition, consumer choice and lower prices bears the unmistakable echo of great Conservative Republican Leaders of Communications Policy. The Senate should confirm her without delay.

”OpEd By Preston Padden In The Denver Gazette

Colorado’s New Housing Boom Meets The Water Crisis

A recent Denver Gazette article highlighted the urgency of our water crisis – “The Water Wars Of The West Have Begun” February 4, 2023.  Colorado – in fact the entire West – is in a water crisis.  Local Governments are imposing water restrictions on current residents.  “Aurora water department warns of drought projections, need for restrictions”, Denver Gazette, February 6, 2023.

Colorado Attorney General Weiser has announced that he is not afraid to sue other States for using more than their legal share of water from the Colorado River.  New York Hedge Funds are buying up our water rights hoping to turn our water scarcity into a “Trillion Dollar opportunity”.  CBS News, January 31, 2023, “New York Investors Snapping Up Colorado River Water Rights, Betting Big On An Increasingly Scarce Resource”. 

In an ominous sign of what could happen to current residents of Colorado, the NY Times reports that a community of $500,000 homes on the border of Scottsdale, AZ just was told that Scottsdale can no longer supply them with water. They can’t shower, wash dishes or flush commodes.  Their homes are unlivable.

At the same time, local governments throughout Colorado continue to approve Hundreds of Thousands of new homes – homes that will need water – water that we don’t have.  Eastern Boulder Country where my wife and I live is an example.  A marketing brochure for a new retail development on the Lafayette/Erie border touts 59,000 new homes in the pipeline just in our little area – 59,000 new homes!  Multiply that many times over to get a sense of what is happening throughout Colorado.

Some  local governments argue that they make residential developers identify “new” sources of water for their developments.  But this argument is specious.  First, there are no “new” sources of water.  Our water supply is finite.  Second, if those “new” sources of water were not earmarked for new homes, those “new” sources would be available to serve existing residents.

There are powerful forces that want to keep approving an endless stream of new homes – developers, builders and Local Governments (who like the impact fees they collect).

But continued Local Government approval of Hundreds of Thousands of new homes is not sustainable in the face of our water crisis.  It is imperative that Colorado Local Governments pause the approval of new homes.  Your ability to shower, wash dishes, flush your commode – live a normal life, depends on it.”

Book Review For The Journal of Fluency Disorders. Book: Every Waking Moment

Author: Christopher Anderson

Review Written By: Jennifer McGuire jenny.padden@gmail.com

In Every Waking Moment (EWM), intelligence analyst and PWS Chris Anderson recounts his stuttering experience over the span of almost four decades. The book is largely a series of chronological vignettes that succinctly depict key moments in Anderson’s journey from a prisoner of his own feelings and attitudes about stuttering to an empowered, confident communicator. The economy of Anderson’s words juxtaposed with the level of detail that he is able to depict provides some insight into his skills as an analyst at the highest levels of government. He has a knack for getting to the point and moving forward, all while managing to weave in illustrative details that cut right to the heart of his lived experiences. The result is a book that is both incisive and deeply affecting.
Anderson describes in granular detail that for much of his life, stuttering and its downstream effects impacted his thoughts, feelings, and behaviors every waking moment. He depicts the all-encompassing nature of contending with a nonstop firehose of mental gymnastics, emotional pain, and relational disruptions that stuttering–when intersecting with internalized stigma–entails. EWM recounts in visceral detail the ways in which the stuttering experience felt as though it would swallow Anderson whole, but it never reads as a bitter litany of complaints. The manner in which he conveys a raw account of the pain followed by an inspiring tale of healing allows him to shine a light on the many causes for optimism that exist for the stutterer, none of which hinge upon the mythical “recovery” narrative. Critically, EWM opens up a conversation around trauma and the stuttering experience. An increasing number of PWS are resonating with the idea that developmental stuttering can give rise to complex trauma. Anderson’s descriptions of freezing and leaving his body in the moment of stuttering, and his recounting of how frequent and compounding these experiences were gives vivid color to the conversation around the relationship between stuttering and trauma.
The childhood experiences that Anderson describes in the early pages of EWM will no doubt resonate with readers, especially PWS and parents of children who stutter. As a stutterer, I found that my brain ran two parallel film reels as I read about Anderson’s childhood. One reel depicted the visuals of his life as I read about his experiences, while the other reel played complimentary scenes from own childhood. In his signature crisp style, Anderson writes, “stuttering shaped much of my early development and took over who I became.” For me, those 13 words capture a behemoth web of painful memories, sensations and fears. In this way, recounting the particulars of Anderson’s childhood becomes a mere tool to convey the shared experience of many stutterers during their formative years. Underneath the specifics of Anderson’s childhood lies the mass of confusion, isolation, and shame that characterizes the childhood stuttering experience for many. I believe this firsthand account will be tremendously illuminating for parents, siblings, grandparents, and therapists of children who stutter.

Just as children who stutter contend with shared internal experiences as a result of their stutter intersecting with the world, family systems often play out in similar manners as well. Thus, not only did Anderson’s feelings of isolation and shame resonate with me, so did the dance that his family and speech therapists engaged in. A concerned mother advocating for her child, well-meaning SLPs drilling fluency techniques because that is what they had been taught to do; all of it hit home. What makes Anderson’s perspective so compelling is that he is able to hold two things true at once. He acknowledges that neither he nor those who loved him employed effective coping strategies, and at the same time, he expresses loving compassion toward his younger self and the loved ones and SLPs who unwittingly did more harm than good in their quest to help him. This duality is one of the most powerful elements of EWM. Anderson can describe what hasn’t worked for stutterers in the past and what still isn’t working in service of our healing, while also expressing empathy and compassion for those who misstep. Expressing empathy toward current norms is a much more effective way to lead change than criticizing and shaming the people and practices that do not serve us. The moment in which we live does not seem to prize this sort of nuance, but Anderson’s narrative exemplifies the power of allowing understanding and forgiveness to coexist with advocacy for change.
EWM progresses from Anderson’s childhood to his young adult years. In these pages, the reader encounters three themes that will feel intimately familiar to young adult stutterers. First, the paralyzing fear of not being a worthy partner and the accompanying choice to settle on–and cling to–a relationship that isn’t working. Second, crippling anxiety about being able to make it in the professional world and the accompanying terror of trying to cleave from one’s family of origin and become self-reliant. Third, contending with the societal stigma that is reflected back on stutterers by professors, career counselors, and potential employers.
What is so impressive about this phase of Anderson’s life is the relentlessness he exhibits in the face of these obstacles. Anderson’s ascent from college to professional life exemplifies a level of tenacity and perseverance that I could have only dreamt of. He identifies his “dream college” and a specific program within that institution. During an interview, the program director revealed his stigma-informed reservations about Anderson when he queried, “if Christopher can’t effectively communicate, how will he be able to meet the academic requirements?” Incredibly, Anderson agrees to matriculate on a conditional basis with the understanding that he will be reevaluated in a year. What bravery it took to willingly consent to being placed under a microscope when the aim of the intense scrutiny was to evaluate how much stuttering impacted his success as a student. It is during this time that he really starts to challenge the limiting beliefs that he and others have used to hold him back, a practice that continues to serve him to this day. For me, these pages read like a biography of an underdog athlete who has decided to excel and commits mind, body and soul to his goals despite a lack of faith from those around him. Cue “Eye of the Tiger” and play it on repeat.
These muscles that he built during his college years serve him well in the professional journey that follows. While still mired in self-stigma and grappling with many of the debilitating fears that plagued his childhood, Anderson now has a seed of perseverance that has taken root in his
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mind. This is no orchid seed that requires perfect conditions to grow; Anderson’s seed is more akin to that of a dandelion–a weed, really–that is destined to take hold and thrive despite the ravages of stuttering stigma that aim to choke it out before it can even sprout. By this point, Anderson has developed a regular practice of forward momentum that will not stop in the face of doubt. The fruits of this practice are jaw-dropping. After securing his dream job at the FBI, a young Anderson begins to regularly find himself called to give intelligence briefings to senior officials including none other than then Bureau Director James Comey. When Anderson struggled mightily during his initial introduction to Comey, the Director responded by maintaining eye contact, smiling calmly, and asking Anderson to sit next to him at the table. There is a growing conversation in stuttering circles about stuttering gain. If being invited to the most privileged seat at Comey’s table is not stuttering gain, then I don’t know what is.
Having established how he would respond to Anderson’s way of speaking, Director Comey’s treatment of Anderson remained consistent. Anderson explains, “when I briefed, he waited patiently again and asked questions that did not let me off the hook even though he recognized how difficult it was for me to speak.” This sentence prompted me to pause and take a few deep breaths. I wanted to let the underlying message permeate my body. Anderson and Director Comey’s interactions exemplify what a conversation with a stutterer looks like when both the PWS and communicative partner move past a reflexive bias toward fluency and focus instead on the many other elements of communication that fuel an exchange. Comey valued Anderson’s contributions because of the numerous attributes that Anderson brought to the table, including deep knowledge of his subject matter and diligent work ethic. For his part, Anderson leads the reader through a master class of how to put self-stigma in the backseat by his very choice to place himself in such high-feared, high-stakes situations. Anderson and Comey’s interactions provide compelling models of what de-stigmatized conversation can look like with a PWS.
With his professional life no longer being dragged down by self-stigma around stuttering, Anderson shifts his focus to personal goals. He had gained momentum in his practice of pushing through fear to achieve success at work, and it was time for him to deploy these skills in the service of finding his soulmate. He begins training to compete in an Ironman competition around the same time that he begins a new kind of stuttering therapy–avoidance reduction therapy for stuttering (ARTS). The tenets of ARTS dovetail nicely with his own growing instincts to push past his communication fears to achieve his goals. ARTS takes place in a group setting, so it also introduces him to a community of like-minded people. He meets stutterers of all ages who are unified by their shared desire to break the chains stuttering has on their psyches. For the first time in his life, he is in relationship with others who stutter, and moreover, they are all working toward stuttering with abandon.
This therapy accelerates his momentum, and he is ready to take a risk on love. As a reader, I smiled through the pages depicting him falling in love with his wife, Maria. Efforts to suppress stuttering often lead to disconnection and isolation, so it is particularly gratifying to read about Anderson’s success in pushing past these impulses to hide, choosing instead to embrace authentic connection with a human who excites him– mind, body and soul. Much like Anderson’s intentional avoidance of a happily-ever-after narrative around stuttering, he is
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deliberate in his description of married life. Like so many, the couple experiences fertility issues. In the face of these struggles, Anderson is able to paint a picture of how the strength and resilience that he has honed throughout his stuttering journey continues to serve him in all areas of life. He has a deep confidence in his and Maria’s ability to get through the painful and discouraging medical interventions and come out triumphant on the other side. And so it is that we come to the last developmental milestone depicted in EWM–Anderson becomes a father.
Despite the fact that Anderson has achieved personal and professional success by all standard measures, his journey is not complete. He has a deep reservoir of empathy for other PWS, parents of kids who stutter, and clinicians who want to help their clients in more authentic and effective ways. In many ways EWM is a love letter from Anderson to the stuttering community. Through the pages, he offers his story as a stepping stone, so that others might feel empowered to cross the terrifying waters of stigma and find their wholeness on the other side of that treacherous river. Indeed, having found a way to allow personal and professional success to live alongside his stutter, he hopes to inspire others that there is happiness and fulfillment to be found outside of the quest for fluency.
Still not convinced? Read the book. Anderson’s experiences as depicted in EWM lend credence to this lofty idea that success and stuttering do not need to be held in opposition to one another. After all, the broad strokes of Anderson’s present-day life represent the outcome that we dream about for our kids–and he stutters. For those who remain attracted to the safety presumed to lie within fluency, it is worthwhile to ask: Would Anderson have ended up (a) an FBI analyst with access to the senior most officials at the agency, (b) married to the woman of his dreams, and (c) a father, had he not run toward stuttering instead of away from it? EWM is a revolution because it writes a playbook for how to get there by breaking out of the old paradigm that prizes fluency. It is a stuttering-ever-after-story, not a happily-ever-after story, and thus provides “proof of concept” to the rumblings about a reimagining of stuttering and its treatment that have been stirring in the community for years.

I am no virgin on the dark arts of lobbying.  But what Comcast is doing to Gigi Sohn – President Biden’s nominee to the FCC – is egregious.

I highly respect Comcast and it’s head lobbyist who is a former colleague and friend.  Comcast is a company with impeccable Democrat credentials.  It’s former Executive VP is President Biden’s Ambassador to Canada.  All of this makes Comcast’s extremely targeted campaign against President Biden’s FCC nominee harder to accept.

Politico reports that “Comcast retained Larry Puccio, who was Manchin’s top aide as governor of West Virginia and has remained close with the Swing vote senator”.   https://www.politico.com/newsletters/politico-influence/2022/01/10/former-manchin-chief-signs-2-799790 I am advised that, as of today,Senator Manchin is the only Democrat who has not yet committed to support Sohn’s confirmation.

One might think that Comcast just hired Puccio on general telecom issues.  But another Comcast lobbying hire let the cat out of the bag!   ArsTechnica reports that Comcast hired Kirk Adams of Consilium of Phoenix, AZ.   ArsTechnicia further reports that on Federal Lobbying Disclosure forms,  Adam’s clumsily listed  the purpose of his hiring as “FCC Nominations”. https://arstechnica.com/tech-policy/2022/01/comcast-trying-to-torpedo-biden-fcc-pick-gigi-sohn-advocacy-group-says/

One Democrat leaning company should not be able to block President Biden’s FCC nominee with micro- targeted lobbying hits.  Maybe Biden’s FCC nominee Sohn should call Biden’s Ambassador to Canada and ask for some “Biden family” help in breaking the confirmation logjam!

Padden Urges Senate to Confirm Sohn

 

Former TV broadcast industry lobbyist Preston Padden urged the Senate today to confirm Gigi Sohn as an FCC Commissioner, calling her “one of the most prepared and experienced nominees in the history of the FCC.”

 

“Many of my friends who represent established companies and their trade associations are trying to throw sand in the gears of Ms. Sohn’s confirmation. These are good and honorable people just doing their job as I did for decades. But the question before the Committee is not whether established industry companies agree with Ms. Sohn’s views. The question is whether she is qualified. The answer to that is an unequivocal ‘yes,’” Mr. Padden said in a letter to Senate Commerce, Science, and Transportation Committee Chair Maria Cantwell (D., Wash.) and ranking member Roger Wicker (R., Miss.).

 

“Ms. Sohn is one of the most prepared and experienced nominees in the history of the FCC. I have worked with, and against, her for more than 30 years. She knows the issues in front of the FCC better than almost anyone I know,” Mr. Padden added. “Ms. Sohn has been a particularly effective advocate for competition and new market entrants.”

 

“I would like to mention two specific issues that have been raised regarding Ms. Sohn’s nomination—Net Neutrality and Locast. Personally, I oppose Net Neutrality. I think the absence of any harm since the rules were repealed demonstrates that those rules were not necessary. But a Democrat FCC majority is almost certain to reimpose those rules regardless of the name of the third Democrat Commissioner. Therefore, the issue of Net Neutrality is not relevant to Ms. Sohn’s confirmation. The real answer to Net Neutrality is for this Committee to lead the Congress in finding a compromise statutory solution that will end the ‘ping-pong’ between Democrat and Republication FCC’s,” Mr. Padden argued.

 

“Regarding Locast, I am a copyright hardliner who agrees with the plaintiffs in the Locast case. But these are legitimate questions of copyright law about which reasonable people can, and do, disagree. Locast was the first company to test the nonprofit exemption to copyright law,” Mr. Padden said. He added that years ago, “highly respected entertainment and Internet entrepreneur Barry Diller backed a company called Aereo that launched a for-profit business nearly identical to Locast that also tested the bounds of the law. The resulting copyright litigation went all the way to the Supreme Court. My point simply is that being associated with Locast no more disqualifies Ms. Sohn from being confirmed for the FCC than being associated with Aereo would disqualify Mr. Diller.”

 

The Senate Commerce Committee last week removed Ms. Sohn’s nomination from the agenda for an executive session in the wake of an announcement that Sen. Ben Ray Luján (D., N.M.) was hospitalized after a stroke. It scheduled a second hearing on the nomination for Wednesday (TR Daily, Feb. 2). —Paul Kirby, paul.kirby@wolterskluwer.com

Media Post: Former Fox Exec Backs Biden’s Nominee For FCC
By Wendy Davis

The Senate Commerce Committee should “overwhelmingly” vote to confirm net neutrality advocate Gigi Sohn to the Federal Communications Commission, former industry lobbyist Preston Padden told the Senate Commerce Committee on Monday.

“The question before the Committee is not whether established industry companies agree with Ms. Sohn’s views,” Padden said in a letter sent to the committee. “The question is whether she is qualified. The answer to that is an unequivocal ‘yes.’”

“I hope the Committee finds a way to produce an overwhelming bi-partisan vote for her confirmation,” Padden, a former senior executive and lobbyist for Fox and ABC, wrote.

He added that Sohn is “one of the most prepared and experienced nominees in the history of the FCC,” and “has been a particularly effective advocate for competition and new market entrants.”

Padden’s letter comes two days before the Senate Commerce Committee plans to hold an unusual second hearing on Sohn’s nomination.

The FCC is currently deadlocked with two Republicans and two Democrats. Until a third commissioner is appointed, the agency is unlikely to advance Chair Jessica Rosenworcel’s goal of restoring the Obama-era net neutrality rules, which prohibited broadband carriers from blocking or throttling traffic and from charging higher fees for prioritized delivery.

President Joe Biden first nominated Sohn to the agency last year, then re-nominated her last month, due to the Senate’s failure to vote on her confirmation.

Sohn, currently a distinguished fellow at the Georgetown Law Institute for Technology Law & Policy, previously served as counselor to former FCC Chair Tom Wheeler, who led the agency during President Obama’s second term. She also co-founded the advocacy group Public Knowledge in 2001.

Padden says in his letter to lawmakers that even though he opposes net neutrality, an FCC with a majority of Democrats “is almost certain to reimpose those rules regardless of the name of the third Democrat Commissioner.”

“Therefore,” he writes, “the issue of net neutrality is not relevant to Ms. Sohn’s confirmation.”

Some Republicans have voiced opposition to Sohn because she has publicly criticized Fox News.

On October 28, 2020, while the Senate was holding a hearing about Facebook’s content moderation policies, she tweeted: “For all my concerns about #Facebook, I believe that Fox News has had the most negative impact on our democracy. It’s state-sponsored propaganda, with few if any opposing viewpoints. Where’s the hearing about that?”

The Wall Street Journal, which called attention to that tweet, suggested that Sohn would attempt to censor conservative media outlets.

But some prominent conservatives including Brad Blakeman (formerly a member ex-President George W. Bush’s senior White House staff) support Sohn’s nomination.

“Even when other liberals wanted to shut down conservative voices, Gigi stood up for free speech,” Blakeman wrote recently in Newsmax.

Sohn also has faced questions about her role on the board of streaming service Locast — which shuttered last year after a federal judge ruled the company infringed broadcasters’ copyrights.

At her hearing in December, Sohn said she thought she thought the service benefited viewers as well as local broadcasters.

Locast, created by the nonprofit Sports Fans Coalition NY, captured over-the-air broadcast signals and streamed them to people within specific geographic areas.

“I thought it was a good thing … for local broadcasters. And local broadcasters didn’t sue. The networks sued,” she said in response to questions from Senator Roy Blunt (R-Missouri). “I also thought it was good for viewers.”

Padden told lawmakers that he is a “copyright hardliner” and agrees with the plaintiffs that sued Locast, but said the case raised “legitimate questions of copyright law about which reasonable people can, and do, disagree.”

He also noted that entrepreneur Barry Diller had backed Aereo, a streaming company that also lost a lawsuit brought by broadcasters.

“Being associated with Locast no more disqualifies Ms. Sohn from being confirmed for the FCC than being associated with Aereo would disqualify Mr. Diller,” Padden wrote.***

—

February 7, 2022

The Honorable Maria Cantwell
Chairperson, Committee On Commerce, Science & Transportation United States Senate

The Honorable Roger Wicker
Ranking Member, Committee On Commerce, Science & Transportation United States Senate

Re: Nomination Of Gigi Sohn To The Federal Communications Commission

Gentlepersons:

I write in strong support of the nomination of Gigi Sohn to serve on the Federal Communications Commission. I respectfully request that this letter be entered into the record of the Commerce Committee’s February 9 hearing.

Presently retired, I held senior executive and advocacy positions at Disney/ABC and Newscorp/Murdoch. I have testified before the Commerce Committee many times (on one memorable occasion then Chairman McCain sent me crawling out of the room with my tail between my legs). Ranking Member Wicker’s request for this hearing and Chairperson Cantwell’s agreement with that request both are consistent with the long history of admirable bi-partisan comity on the committee.

Many of my friends who represent established companies and their trade associations are trying to throw sand in the gears of Ms. Sohn’s confirmation. These are good and honorable people just doing their job as I did for decades. But the question before the Committee is not whether established industry companies agree with Ms. Sohn’s views. The question is whether she is qualified. The answer to that is an unequivocal “yes”.

Ms. Sohn is one of the most prepared and experienced nominees in the history of the FCC. I have worked with, and against, her for more than 30 years. She knows the issues in front of the FCC better than almost anyone I know. Ms. Sohn has been a particularly effective advocate for competition and new market entrants. Even those sending unhelpful comments to the Committee acknowledge her expertise. For example, in his letter to the Committee my friend Michael Powell, CEO of NCTA, said, “She is a respected and accomplished public interest advocate”.

I would like to mention two specific issues that have been raised regarding Ms. Sohn’s nomination – Net Neutrality and Locast.

Personally, I oppose Net Neutrality. I think the absence of any harm since the rules were repealed demonstrates that those rules were not necessary. But a Democrat FCC majority is almost certain to reimpose those rules regardless of the name of the third Democrat Commissioner. Therefore, the issue of Net Neutrality is not relevant to Ms. Sohn’s confirmation. The real answer to Net Neutrality is for this Committee to lead the Congress in finding a compromise statutory solution that will end the “ping-pong” between Democrat and Republication FCC’s. But that is a longer conversation for another day.

Regarding Locast, I am a copyright hardliner who agrees with the plaintiffs in the Locast case. But these are legitimate questions of copyright law about which reasonable people can, and do, disagree. Locast was the first company to test the nonprofit exemption to copyright law. A few years ago, highly respected entertainment and Internet entrepreneur Barry Diller backed a company called Aereo that launched a for- profit business nearly identical to Locast that also tested the bounds of the law. The resulting copyright litigation went all the way to the Supreme Court. My point simply is that being associated with Locast no more disqualifies Ms. Sohn from being confirmed for the FCC than being associated with Aereo would disqualify Mr. Diller.

I do not have a vested commercial interest in this confirmation. I am someone who has battled Ms. Sohn at times and worked with her at other times. Hers is an important voice that belongs at the FCC. I hope the Committee finds a way to produce an overwhelming bi-partisan vote for her confirmation.

Very truly yours,

Preston Padden 202-329-4750 

Ppadden@mac.com

CC: All Members Of The Committee

WSJ – By Preston Padden………….

May 31, 2020 03:39 p.m. EDT

Pres­i­dent Trump signed an ex­ec­u­tive or­der Thurs­day that would have the Fed­eral Com­mu­ni­ca­tions Com­mis­sion judge de­ci­sions made by Twit­ter, Face­book and oth­ers to mod­er­ate speech. Un­der Mr. Trump’s or­der, the FCC could re­voke li­a­bil­ity pro­tec­tion if a so­cial-me­dia plat­form hasn’t acted “in good faith.” The or­der amounts to a con­tent re­view and is rem­i­nis­cent of past re­stric­tions on broad­cast net­works.

The Fair­ness Doc­trine, in­tro­duced in 1949, re­quired broad­cast­ers to air op­pos­ing views on is­sues of pub­lic in­ter­est. The FCC de­ter­mined whether broad­cast speech was fair to both po­lit­i­cal par­ties. In the 1980s, con­ser­v­a­tive FCC Chair­men Mark Fowler and Den­nis Patrick worked to re­peal the doc­trine, over­com-ing op­po­si­tion in both par­ties, and suc­ceeded in 1987.

White House staff, Mr. Fowler re­called in 2009, ar­gued to Pres­i­dent Rea­gan that “the only thing that re­ally pro­tects you from the sav­age-ness of the three net-works . . . is the Fair­ness Doc­trine, and Fowler is propos­ing to re­peal it.” But Messrs. Fowler and Patrick stood for prin­ci­ple, not pol­i-tics. In 1987 Mr. Patrick said, “We seek to ex­tend to the elec­tronic press the same First Amend­ment guar­an­tees that the print me­dia have en­joyed since our coun­try’s in­cep­tion.”

Pres­i­dent Nixon was ob­sessed with the net­works’ bias. In a 1972 White House memo, Nixon aide Pat Buchanan wrote: “Shall we ac­qui­esce for­ever in left-wing con­trol of com­mu­ni­ca­tions me­dia from which 50 per­cent to 70 per­cent of the Amer­i­can peo­ple de­rive their in­for­ma-tion and ideas about their na­tional gov­ern­ment? The in­ter­ests of this coun­try and the fur­ther­ance of the poli­cies and ideas in which we be­lieve de­mand that this mo­nopoly, this ide­o­log­i­cal car­tel, be bro­ken up.”

Nixon re­tal­i­ated against the net­works by sup­port­ing FCC rules to re­strict their air­time and own­er­ship of pro­gram­ming. He di­rected the Jus­tice De­part­ment to mir­ror the FCC rules, cre­at­ing a dou­ble layer of re­stric­tions.

Be­cause Nixon taped his White House con­ver­sa­tions, we don’t need to spec­u­late about his mo­tives. “Our gain is more im­por­tant than the eco­nomic gain,” he said in 1971, brush­ing aside the le­git­i­mate com­plaints of pro­gram pro­duc­ers. “Our game here is solely po­lit­i­cal. . . . As far as screw­ing [the net­works] is con­cerned, I’m very glad to do it.”

tIn Nixon’s rail­ing against the lib­eral bias of the net-works, one can al­most hear Mr. Trump rail­ing against so­cial-me­dia com­pa­nies. And the new ex­ec­u­tive or­der reads like the Buchanan memo. But what Nixon & Co. said be­hind closed doors, Mr. Trump says in pub­lic.

The bias was and is real. But the ques­tion is whether the First Amend­ment per­mits gov­ern­ment lead­ers to judge pri­vate speech that ir­ri­tates them. Mr. Trump’s de­fend­ers ar­gue that he is only con­di­tion-ing on­line plat­forms’ “unique” pro­tec­tions. But most me­dia en­joy some unique pro­tec­tion: copy­right li­censes for ca­ble sys­tems, “must carry” rights for broad­cast sta­tions. Con­di-tion­ing key pro­tec­tions on com­pli­ance with a gov­ern­ment con­tent re­view would be cen­sor­ship by a dif­fer­ent name.

Mr. Pad­den is a com­mu­ni­ca-tions con­sul­tant who held ex­ec­u­tive po­si­tions at the Fox and ABC broad­cast net­works.