Hill Report: White House Directed Title II Shift

After a year-plus investigation, Sen. Ron Johnson (R-Wis.), 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") he says shows the White House used undue influence to override the FCC decision-making process in pushing it toward reclassification of Internet access as a Title II common carrier service.

FCC chairman Tom Wheeler has always indicated Title II was a possibility but had initially proposed a different route to buttressing open Internet rules remanded back to the FCC by a federal appeals court for better legal underpinning.

The President came out very publicly for Title II in an online video and the chairman appeared to follow his lead, changing course and moving to that Title II model.

“This investigation has convinced me that the White House overrode the FCC’s decision-making apparatus,” said Johnson of the report. “It is concerning that an independent agency like the FCC could be so unduly influenced by the White House, particularly on an issue that touches the lives of so many Americans and has such a significant impact on a critical sector of the United States economy.”

Johnson says that not only does his report show that the FCC changed course and executed the President's preference, but that FCC staffers raised concerns about whether the FCC had followed proper notice and comment procedures as required by law.

Johnson's office said that the 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."

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," said Johnson's report.

Johnson also criticized the FCC's participation, or lack of it, in his report. "Over the course of the committee’s investigation, the FCC refused to provide key responsive documents," he said. "Moreover, in the emails that were provided to the committee, it appears that there was an attempt by some to thwart transparency and avoid ex parte filings."

Republican FCC Commissioner Ajit Pai, who has been branding the Title II decision as the President's, not the FCC's, clearly felt vindicated in his choice of labeling: "Over a year ago, The Wall Street Journal reported that President Obama’s plan was devised through “an unusual, secretive effort inside the White House” that functioned as a 'parallel version of the FCC.' Now we have confirmation, based on internal FCC documents, that this report was accurate."

FCC Commissioner Michael O'Rielly was even tougher. He said the report "crystallizes what most people knew in their hearts." He said that was the fact that the process "was thrown overboard in order to capitulate to the improper influence of the Administration. The final order is a discredit to the agency’s independence and the rule of law. Whether through the courts or a future Commission, this illegitimate net neutrality regime must go.”

The criticisms of the process by Republicans, who opposed Title II, are not new, and were addressed by Wheeler in a House government oversight hearing on the issue almost a year ago.

At the time, Wheeler said the White house did not give him "secret instructions" to reclassify Internet access under Title II, and that he felt no obligation to follow the President's lead.

Wheeler has pointed out that the FCC docket was also filled with calls for a shift to tougher rules and that the court had suggested Title II as a way to justify various bright-line prohibitions like not blocking, degrading or prioritization. The court had trouble with absolute bans under non-common carrier-based rules, so the chairman initially proposed language that skirted a ban by allowing conduct that did not block or degrade before adopting the Title II based rules that allowed for "thou shalt nots."

“It’s no secret that four million Americans, including the President, urged the FCC to protect a free and open Internet," FCC press secretary Kim Hart told B&C. "The FCC ran a transparent and robust rulemaking process, which resulted in strong rules to ensure the Internet remains a platform for innovation, expression and economic growth.”

John Eggerton

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.