WASHINGTON — It has been three months since Internet-service providers made their case against the Federal Communications Commission’s Title II reclassification of high-speed Internet service, so a court decision could come at any time.
But the chairman of the Senate government oversight committee has made his own case against the process that produced the rules.
One of the arguments cable operators and other Internet-service providers made in challenging Title II was that the FCC had switched from an approach based on Section 706 of the Telecommunications Act without putting that change out for comment.
Sen. Ron Johnson (R-Wis.) agrees, and thinks he has the evidence to back it up.
But FCC chairman Tom Wheeler said the process was the same as it has been in the past, and the communications with President Obama and the White House were not unusual.
‘UNDUE INFLUENCE’ CITED
After a year-plus investigation, Johnson, chairman of the Senate Homeland Security and Government Affairs Committee, has released a report, “Regulating the Internet: How the White House Bowled Over FCC Independence,” that he says shows the White House used undue influence to override the FCC decision-making process and push it toward Title II. It was a change that, according to cable providers, depressed investment and allowed the FCC to regulate various practices under a vague “know-it-when-we-see-it” standard.
FCC chairman Tom Wheeler had always indicated Title II was a possibility, as had his predecessor, Julius Genachowski. But Genachowski had ultimately chosen the Section 706 route, and Wheeler had signaled a hybrid version of buttressing open Internet rules after Genachowski’s attempt was remanded back to the FCC by a federal appeals court for better legal underpinning.
Obama came out very publicly for Title II in an online video, and the chairman appeared to follow his lead in changing course and embracing the Title II model.
“This investigation has convinced me that the White House overrode the FCC’s decision-making apparatus,”
Johnson said last week in releasing the report. Johnson said not only did his report show the FCC changed course and “executed the president’s preference,” but that agency staffers raised concerns about whether the agency had followed proper notice and comment procedures as required by law.
Johnson’s office said his report showed that “immediately after the president’s statement, FCC staff expressed confusion as edits were suddenly delayed and the rapid timetable for completing the draft Open Internet Order was ‘paused.’ At the conclusion of the pause, Wheeler instructed FCC staff to change course and draft an order that would follow the president’s proposal of a Title II reclassification.”
One email from a staffer working on the Open Internet order reads: “Chris and Rosemary just alerted me to breaking news: Obama says to make it Title II. … Not sure how this will affect the current draft and schedule, but I suspect substantially.”
As to not putting out the sudden shift for public comment: “Specifically, the FCC’s career professional staff advised that the record to support Title II reclassification for both fixed and wireless broadband was thin and needed to be bolstered. Despite this recommendation, the FCC chose not to seek additional public comment, and proceeded with the president’s preferred policy outcome,” Johnson’s report said.
JOHNSON GRILLS WHEELER
Critiques of the process were addressed by Wheeler in a House government oversight hearing on the issue almost a year ago. Wheeler addressed them again in a Senate oversight hearing last week, where he was grilled by Johnson himself. Wheeler said that the FCC had not circumvented the ex parte notification requirement about communications with White House staffers.
The FCC chairman also said that communications between the White House and independent agencies are not unusual, are in fact typical — with “the White House, Congress and everybody” — and that, in fact, other presidents have been known to contact FCC chairs, pointing to a meeting between former FCC chairman Mark Fowler and President Reagan.
But there is precedent among Democrats for criticizing an FCC chair for alleging the public and stakeholders were not allowed sufficient input on a policy change. In 2007, a prominent Democratic senator told then-FCC chairman Kevin Martin he should have put a new broadcast media-ownership proposal out for notice and comment. The senator: Barack Obama of Illinois.
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Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.