Pai Discloses White House Counsel Phoned Him on Sinclair/Tribune

Pai also faced and pushed back against Democrats who criticized him for not correcting statements to Congress and the public about now-debunked claims that a 2017 breakdown of the agency's electronic comment filing system was caused by a distributed denial-of-service attack, as expected (see 1808150068). Pai also announced a new extension of the deadline to file in the Mobility Fund Phase II (MF II) challenge process.

McGahn “saw something in the news and wanted to know what our decision was, or what the action was, the proposed action” in the HDO, Pai responded to Senate Consumer Protection Subcommittee ranking member Richard Blumenthal, D-Conn. “He just wanted to know what it was.” Blumenthal asked whether any White House officials contacted Pai about Sinclair/Tribune before or after he proposed the HDO. Pai told reporters this month he hadn’t been contacted by the White House “to express a view about the merger” and then declined to answer a follow-up question on presidential input (see 1808020034). Thursday, the White House didn't comment.

Pai estimated the conversation with McGahn occurred July 16 or 17, the day or day after he originally announced circulation of the HDO. Blumenthal said he's requesting Pai give him a written summary of the full conversation. President Donald Trump weighed in against the HDO in late July (see 1807250057). Commerce ranking member Bill Nelson, D-Fla., faulted the FCC for “paving the way for unprecedented broadcast consolidation” via changes to media ownership rules. Despite Sinclair/Tribune's demise, some of the rule changes are “beginning to remove 'local' from the term 'local broadcasting,'” he said.

DDoS Criticism

Senate Commerce Chairman John Thune, R-S.D., and Communications Subcommittee ranking member Brian Schatz, D-Hawaii, referenced the Office of Inspector General's finding earlier this month that the 2017 ECFS breakdown was caused by the volume of commenters on the net neutrality proceeding, rather than a DDoS attack (see 1705100062 and 1808060051). The report showed the FCC “misrepresented facts and provided misleading responses to congressional inquiries related to this incident,” Thune said. “It is absolutely critical that the information provided to Congress and to the American people be correct.”

Schatz and Pai engaged in a sometimes testy exchange about the sequence of events for FCC statements claiming a DDoS attack, with Schatz expressing substantial skepticism about Pai's explanations. Schatz and Sen. Ron Wyden, D-Ore., pressed Pai in June for further evidence (see 1806120057). “You told Congress a federal crime was committed,” Schatz said now. “Why didn't you entertain any of those quite reasonable doubts?” Pai said he began to doubt the DDoS claims that originated from former FCC Chief Information Officer David Bray in January, after Chief of Staff Matthew Berry told him about doubts on the accuracy of Bray's earlier assertions. Pai contended the OIG asked him to abide by confidentiality rules surrounding its investigation.

The FCC “wanted you to get this information sooner,” but “I made the judgment that we had to adhere to the [OIG] request, even though I knew we would be falsely attacked for having done something inappropriate,” Pai said. “The story in this report vindicated my position.” Schatz wants “some measure of accountability” from Pai for being misleading. “I understand you were in a difficult position but I cannot imagine that there was not another way to thread this needle and deal with us in our oversight capacity,” Schatz said.

Commissioner Jessica Rosenworcel criticized the FCC's DDoS claims, which she called “just not credible.” The agency “ignored the fact that [docket 17-108, the net neutrality proceeding] is flooded with fraud,” including comments filed under fake or stolen identities, she said.

New Order

Pai said the FCC had adopted an order to extend the MF II challenge process filing deadline by 90 days to Nov. 28, following through on a June promise to lawmakers (see 1806010041). “We want to make sure we give everybody a full and fair opportunity to participate in the challenge process, to make sure we're operating on the basis of accurate data,” Pai said. Rural Wireless Association President Mike Kilgore said “the additional 90 days is crucial to our members’ ability to complete their testing efforts.”

There was bipartisan criticism of FCC broadband connectivity data maps, a frequent feature of broadband-related hearings during this Congress. “I don't know that we're going to get an accurate map even with the challenge process,” said Senate Communications Chairman Roger Wicker, R-Miss. “I'm still skeptical.” Sen. Jon Tester, D-Mont., said the current maps “stink” and suggested “we've got to kick somebody's ass” to improve data collection accuracy.

Republicans and Democrats used the Senate Commerce hearing to again litigate the impact of the 2017 order rescinding its 2015 net neutrality rules, with Pai saying critics' “hysterical predictions of doom” about the rescission order's effects are still “false today.” Critics' claims about the order would indicate that since it took effect in June, “we've had a spate of throttling and blocking that's just been outrageous,” Wicker said. Sen. Ed Markey, D-Mass., later pushed back, saying it's reasonable to believe the order's effects wouldn't yet be noticeable because the process of challenging the order in federal courts and via a Congressional Review Act resolution of disapproval (see 1808160073) aimed at rolling it back “has not been completed.”

5G

Capitol Hill interest in 5G manifested throughout the hearing. Thune and others noted a range of bills aimed at encouraging private sector deployment of the wireless technology. Thune later told reporters he and Senate Commerce staffers are continuing to combine language from a set of bills on 5G and broadband deployments for potential committee action later this year (see 1807250056). “We'll see what we can put together that we can get to a markup, but at the moment, there are still some discussions and negotiations that are going on,” Thune said. “We're trying to make this as collaborative process as possible.”

Thune highlighted continued negotiations on the Streamlining the Rapid Evolution and Modernization of Leading-Edge Infrastructure Necessary to Enhance Small Cell Deployment Act (S-3157), which aims to ease barriers by implementing a “reasonable process and timeframe guidelines” for state and local consideration of small-cell applications (see 1806290063). “We're trying to come up with a path forward” on S-3157 “that will allow that bill to pass with bipartisan support” amid concerns from state and local governments, he said.

Sen. Ted Cruz, R-Texas, again raised concerns about the administration's interest in creating a nationalized 5G network, noting July filing of the Eliminate From Regulators Opportunities to Nationalize the Internet in Every Respect Act (S-3255). The bill, which Cruz sponsored with Sen. Catherine Cortez Masto, D-Nev., would formally bar the White House and executive branch agencies from seeking to build a government-owned national 5G network without congressional authorization (see 1807230059). “I think [5G nationalization] is a terrible idea,” Cruz said. All commissioners agreed.

Senate Judiciary Antitrust Subcommittee ranking member Amy Klobuchar, D-Minn., questioned claims by T-Mobile and Sprint that their proposed combination will boost their 5G deployment (see 1804290001, 1804300055 and 1804300057). Rosenworcel agreed it would be a “hard” for T-Mobile and Sprint to make the case that reducing the number of national carriers from four to three was good in any context. The two carriers will need to demonstrate that combining won't result in increased prices and reduced service, Rosenworcel said. Tester urged the FCC and the federal government to continue to emphasize connectivity in rural areas as 5G deployments begin in major cities: “We still don't have [1G] where I live” in Montana.