Wheeler Said Not to Be Negotiating With Republicans on Net Neutrality, Incentive Auction
FCC Chairman Tom Wheeler appears to be largely freezing the commission’s Republicans out of the loop on all three big-ticket items slated for a vote Thursday -- net neutrality, spectrum aggregation and rules for the TV incentive auction -- agency and industry officials said Tuesday. Commissioners Ajit Pai and Mike O'Rielly have indicated that their strong opposition, particularly on the net neutrality rulemaking and spectrum aggregation rules, has given them little leverage to negotiate with the chairman’s office, officials said.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
Wheeler circulated a revised net neutrality NPRM Monday afternoon (CD May 13 p1). Republicans got the draft Tuesday. “When it comes to the Chairman’s latest net neutrality proposal, the Democratic Commissioners are in the fast lane and the Republican Commissioners apparently are being throttled,” Matthew Berry, Pai’s chief of staff, said in a statement Tuesday. “The Chairman’s Office should end this discrimination and stop blocking the Republican Commissioners from seeing the Chairman’s latest plan.”
An agency official said the Democratic commissioners received the draft perhaps 20-24 hours before the Republican commissioners. That official said this is the first time in memory a chairman circulated a draft to his own party so much sooner than to minority party commissioners. The Democrats aren’t working with the Republicans, the official said. An FCC spokesman declined to comment, other than to confirm that as of Tuesday afternoon, the item had circulated to all five commissioners. While eighth-floor meetings on the net neutrality draft continued Tuesday the pace has slowed in recent days, agency officials said.
"Historically, controversial items seem to come in cycles,” said former Commissioner Robert McDowell, now a visiting fellow at the Hudson Institute. “Eventually the commission will find something to agree on in another context, but these early skirmishes will color all negotiations in the future."
Analyst Paul Gallant of Guggenheim Partners said any damage to the relationship between Republicans and Wheeler is probably only short term. “It’s an unusual development and probably will have some negative carryover beyond this week, but I doubt the damage is permanent,” Gallant said. “There are still things each side needs from the other, so getting a little distance from this week will help."
It’s “sadly ironic” that Wheeler would engage in “political prioritization” when the debate itself is over “banning prioritization,” said Berin Szoka, president of TechFreedom. “That irony is too rich, even for Washington.” Wheeler has a “golden opportunity” to forge working relationships with Republicans -- something then-Chairman Julius Genachowski could have done with then-Commissioner Robert McDowell “but squandered over net neutrality,” Szoka said. Wheeler’s “gamesmanship” sends a “troubling signal” that he’s not willing to work with Pai and O'Rielly, Szoka said. “That bodes ill for the prospect of the FCC accomplishing much over the next two and a half years.”
For Geoffrey Manne, executive director of the International Center for Law and Economics, Wheeler’s decision to circulate to the Democrats first was neither surprising nor problematic. “The immediate challenge confronting Wheeler is within his own party,” Manne said. “If this is about Wheeler trying to get his own party on board with something as close as possible to what he initially wanted to propose, then giving it to them first and giving them time to comment before he finalizes it, it makes sense."
Wheeler “knows free market won’t protect open Internet,” said Wheeler’s Special Counsel-External Affairs Gigi Sohn in a Twitter chat Tuesday. Assuming the NPRM is adopted Thursday, the public will have 60 days to comment and “nearly” another 60 for replies, Sohn said. “Decision hopefully by year’s end.” The proposal considers Title II and Communications Act Section 706 as the “main choices” for which regulatory authority to use “because of court decisions,” she said, but the “draft asks whether there are alternatives.” In response to a question asking whether Wheeler’s mind is “truly open to Title II” or whether he sees it “as a nuclear option,” Sohn responded: “Chairman has always been clear that Title II is a viable option.” The NPRM “asks which option is best,” she said. The proposal also asks whether the agency should change the net neutrality rules in regards to wireless service, Sohn said.
On Tuesday afternoon, three people were sitting in chairs on the Maine Avenue side of FCC headquarters. The protesters told us there had been more protesters, but they were getting lunch at the Potbelly’s around the corner. Pai was the only commissioner to engage the protesters in a discussion about what they're seeking, they said. Sohn had contacted protesters last week to ask if they were interested in a meeting, said Margaret Flowers, of the protest group Popular Resistance. Flowers expressed interest, but has heard nothing since, she said.
"At least one prior FCC chairman regularly froze out dissenters,” said a former FCC legal adviser who represents wireless industry clients, referring to Kevin Martin. “However, he did not withhold drafts. Drafts were distributed to all offices.”
The Republican commissioners “look at it as they're being frozen out,” said a former FCC official who does not represent clients on net neutrality. But if they are likely to vote no “what is there to negotiate?” the former official asked. “There’s no point negotiating with people who are never going to vote for the item.”,