WASHINGTON — Sen. Ron Johnson (R-Wis.), chairman of the Senate Homeland Security and Governmental Affairs Committee, released a report Monday, “Regulating the Internet: How the White House Bowled Over FCC Independence,” detailing how the Federal Communications Commission arrived at its decision to regulate the Internet like a public utility only after the president called for such a heavy-handed regime and how, in the process, career FCC staff raised serious administrative law questions about the shift.
“This investigation has convinced me that the White House overrode the FCC’s decision-making apparatus,” said Johnson. “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’s inquiry revealed that after the Obama White House weighed in on the net neutrality debate, the FCC changed course and executed the president’s preference for Title II reclassification. Moreover, a review of the documents indicates that FCC staff raised significant concerns about the agency following proper notice-and-comment procedure as required under the Administrative Procedure Act.
Details of the report:
- Prior to the White House’s announcement in support of Title II reclassification, the career, professional staff at the FCC worked over a weekend to deliver Chairman Tom Wheeler a draft Open Internet Order, adopting the “hybrid approach,” to be considered on the FCC’s December 2014 Open Meeting. 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.
- The FCC staff raised concerns about the agency following proper notice-and-comment procedure, as required under the APA. 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.
- Over the course of the committee’s investigation, the FCC refused to provide key responsive documents. 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.
On Feb. 4, 2015, FCC Chairman Tom Wheeler announced a plan to reclassify broadband as a telecommunications service subject to Title II of the Communications Act of 1934. This announcement represented a shift from the FCC’s previous light-touch approach of classifying broadband as an information service and from Wheeler’s own statement in February 2014 that the FCC would continue such an approach.
By the end of 2014, it became widely reported that the FCC would move forward on an Open Internet Order adopting a “hybrid approach.” The hybrid approach divided the Internet into “wholesale” and “retail” transactions and sought to regulate one as a public utility while approaching the other with a light regulatory touch. In November 2014, President Obama directly weighed into the debate, stating, “I believe the FCC should reclassify consumer broadband service under Title II of the Telecommunications Act.” On Feb. 4, 2015, Wheeler revealed his plan to regulate broadband as a Title II utility service, treat wireless the same as fixed broadband, and assert jurisdiction over Internet interconnection agreements for the first time.
Concurrent with Wheeler’s announcement, the Wall Street Journal reported that the White House may have inappropriately influenced the FCC decision to regulate broadband under Title II. Specifically, the Journal noted “unusual, secretive efforts inside the White House, led by two aides.” Notably, in November 2014, Obama weighed in on the debate, imploring the FCC to “reclassify consumer broadband service under Title II.”
On Feb. 9, 2015, Sen. Ron Johnson (R-Wis.), chairman of the Senate Committee on Homeland Security and Government Affairs and a senior member of the Committee on Commerce, Science and Transportation, initiated an inquiry into the FCC’s Open Internet Order in light of the information reported by the Journal.