Republicans in Both Chambers Seize on White House Net Neutrality Influence
Congress is ramping up oversight of White House influence over the FCC net neutrality proceeding. House Oversight Committee Chairman Jason Chaffetz, R-Utah, asked FCC Chairman Tom Wheeler questions in a letter Friday (see 1502060063), followed Monday by a letter from Senate Homeland Security Committee Chairman Ron Johnson, R-Wis., who's also a member of Commerce. There is increased partisan pressure on Capitol Hill surrounding the draft net neutrality order detailed last week (see 1502050042), when Republicans slammed what they considered the administration’s undue influence and possible lobbying against GOP net neutrality legislation.
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“The current administration has a ‘go at it alone’ mentality,” Johnson said in a statement Monday. “At the beginning of this Congress, Republicans offered to work together with Democrats in Congress on a bipartisan bill that would address the net neutrality issue once and for all. Rather than take the offer to work through a bill in Congress, the administration appears to believe it is easier just to let this policy issue be determined by unelected bureaucrats at the FCC. This week, we learned that this may not have been an FCC decision at all, but instead another executive action dictated out of the White House."
The White House endorsed reclassification of broadband as a Communications Act Title II service in November, and Wheeler, whose proposals were rumored to not initially call for full reclassification, circulated an order last week that will reclassify broadband. Johnson accused the FCC of making “a large deviation” from traditional light regulation of broadband. Hill Republicans have denounced reclassification, which they have sought to avoid in their legislation. “The decision is wrong, and the process raises serious questions about the president's inappropriate influence over what is supposed to be an independent agency that derives its authority from Congress and not the White House,” Johnson said.
Johnson’s inquiry includes seven questions of the FCC, focusing on changes to Wheeler’s proposal over time. He asked why Wheeler supported the "commercially reasonable" standard in 2014 and does not now. “Please produce the draft proposal on net neutrality that you planned to circulate in or around late November and early December,” Johnson said, referring to what was rumored among industry officials then as a “hybrid” proposal. Chaffetz and Johnson pressed the FCC on communications with White House officials and demanded an accounting of what those communications were. Chaffetz demanded an agency response by Feb. 20, Johnson by Feb. 23. The agency is expected to vote on Wheeler’s net neutrality order, which will involve Title II reclassification, at its Feb. 26 meeting.
Legislation and hearings on administration influence are certainly possible, a spokeswoman for Chaffetz told us Monday. The letter marks the very beginning of the process and it may turn up no undue White House influence, she said. The Oversight Committee is trying to coordinate with other committees of jurisdiction, such as House Commerce, she said. Senate Commerce Committee Chairman John Thune, R-S.D., “expects the FCC to comply with all oversight requests from Congress,” a committee spokesman for Thune told us.
“It’s not unusual for the White House to state a policy position for something that’s happening at the FCC,” Public Knowledge Vice President-Government Affairs Chris Lewis told us, arguing that Wheeler’s decision to reclassify likely was not “linked directly” to Obama’s Title II endorsement. “You wonder if this sort of investigation is necessary,” Lewis said, considering a tone in Johnson’s letter that comes “with an assumption that there’s wrongdoing.”
Fred Campbell, director of the Center for Boundless Innovation in Technology, sees the additional oversight as trouble for the agency. “Section 154 of the Communications Act authorizes the President to appoint five commissioners to the FCC ‘by and with the advice and consent of the Senate,’” said Campbell in a Monday blog post. “It does not, however, require the Senate’s consent for the President to designate one of the five commissioners as chairman, which implies that Senate consent is not necessary to remove an FCC chairman either. If an FCC chairman decides to buck the White House, the President is free to designate another commissioner as chairman with the stroke of pen -- one who is willing to agree with the President.” Campbell posited that if the White House “even hinted” at this scenario, “it would provide a reviewing court with grounds to overturn the FCC’s decision as arbitrary and capricious and contrary to law.”
The FCC has received the letters and is reviewing them, an agency spokeswoman said.