Lawmakers Question White Houses Role in Wheelers Net Neutrality Proposal

Josh LongThe Federal Communications Commission is an independent agency that is overseen by Congress, not the executive branch. But some members of Congress want to know whether the White House exerted improper influence over the head of the FCC.

Sen. Ron Johnson, a Republican from Wisconsin who chairs a government affairs committee, raised concerns Monday that the White House may have improperly influenced FCC Chairman Tom Wheeler’s proposal to regulate broadband services as a public utility.

“I request your assistance in better understanding whether the White House and the FCC respected the proper boundaries established by Congress between the executive branch and independent agencies,” Johnson, the chairman of the Senate Committee on Homeland Security and Government Affairs, wrote in a letter to Wheeler.

A similar letter was addressed to Wheeler last week by the House Committee on Oversight and Government Reform.

FCC spokeswoman Kim Hart told the Los Angeles Times the agency had received the letters and was reviewing them. The White House did not immediately respond Monday to a request for comment.

In November, President Barack Obama called for the FCC to regulate broadband services under Title II of the Communications Act of 1934. Republicans and some large broadband carriers immediately bashed the proposal as a heavy-handed approach to regulation.

Wheeler last week proposed Title II regulation, which would reclassify broadband as a telecommunications service and give the FCC broader authority to regulate it.

Lawmakers are questioning whether Wheeler changed his direction on Net Neutrality after the White House exerted influence at the FCC, which is comprised of two Republicans and three Democrats, including Wheeler.

In the letter Monday to Wheeler, Johnson cited a recent story from the Wall Street Journal, which reported on a “secretive effort inside the White House, led by two aides who built a case for the principle known as ‘Net neutrality’ through dozens of meetings with online activists, Web startups and traditional telecommunications companies.”

“Since the FCC is an independent agency that derives its authority from Congress and not the White House,” Johnson wrote to Wheeler, “it is highly concerning that the White House would seek to take on this level of involvement in the regulatory process of the FCC, or attempt to supplant completely the agency’s decision-making apparatus.”

Last week, Wheeler characterized his plan as “the strongest open Internet protections ever proposed by the FCC.” For the first time ever, restrictions – including prohibitions on blocking and slowing Internet traffic –would apply to wireless networks, subject to an exception that would enable broadband providers to engage in “reasonable network management.”

Speaking Monday at the Silicon Flatirons Center in Boulder, Colorado, Wheeler said he originally thought he could preserve open access to the Internet by imposing a “commercial reasonable” test to determine whether broadband providers were acting appropriately.

“After listening to countless consumers and innovators, however, I became concerned that the relatively untested ‘commercially reasonable’ standard might be subsequently interpreted to mean what was reasonable for the ISP’s commercial arrangements,” Wheeler explained. “That, of course, would be the wrong conclusion. It was a possibility that was unacceptable.”

“The precedent of earlier FCC rules assuring an open phone network made it clear that the yardstick for network management should be based on Title II of the Communications Act — the same test that had worked to deliver the dawn of the Internet,” Wheeler added. “That is why I am proposing the FCC use a modernized version of its Title II authority to implement and enforce open Internet protections.”

Wheeler’s proposal, which was circulated last Thursday to his four colleagues, is scheduled to be voted on during the FCC’s Feb. 26 open meeting.

Wheeler on Monday contested accusations that his proposal represents an attempt to impose monopoly-era regulations on broadband carriers like AT&T and Verizon. He has proposed invoking the FCC’s forbearance authority. That means the agency would refrain from subjecting broadband carriers to several provisions under Title II that have applied to traditional phone service.

During a press conference last week, FCC officials characterized Wheeler’s proposal as a light-touch approach to regulating the Internet that would continue to encourage investment and innovation.

Ajit Pai, one of the two Republican commissioners, doesn’t agree. He immediately criticized Wheeler’s proposal as a heavy-handed regulatory approach that would curtain investment in broadband networks and open the door to billions in broadband taxes.

“It’s no wonder that Net neutrality proponents are already bragging that it will turn the FCC into the ‘Department of the Internet,’” Pai said in a statement on the FCC’s website. “For that reason, if you like dealing with the IRS, you are going to love the President’s plan.”

The other three commissioners did not issue public statements on the FCC’s website. Adonis Hoffman, senior legal advisor to FCC Commissioner Mignon Clyburn, a Democrat, said Monday it is the commissioner’s policy not to comment on pending matters before voting on them. Advisors to commissioners Jessica Rosenworcel, a Democrat, and Michael O’Rielly, a Republican, did not immediately respond Monday to requests for comment on Wheeler’s proposal.

Hal Singer, a senior fellow at the Progressive Policy Institute and an adjunct professor at Georgetown University’s McDonough School of Business, said he believes the Democrats will vote the same on Wheeler’s proposal. That would set up an almost inevitable showdown in federal court where similar regulations under Wheeler’s predecessor Julian Genachowski were overturned last year.

“People are willing to cross their ideological reputations, but I don’t think there [are] going to be any surprises here,” Singer said Monday in a phone interview. “I don’t think anyone wants to cross the President on this one. They [Democrats] are going to be good soldiers and march along with what the President said.”

The Internet Innovation Alliance (IIA), a coalition of business and nonprofit organizations that opposes Wheeler’s proposal, expressed hope that party affiliations would not control the outcome of the vote.

“Rather than plowing forward with Wheeler’s Net neutrality proposal that’s sure to bring a 3-2 vote along party lines, IIA hopes that the FCC will carry on the bipartisan tradition of communications policy making, reach consensus, and adopt rules that protect an Open Internet while continuing the light-touch regulations that will lead to greater innovation, investment, and availability of high-speed broadband networks and services,” the organization said Monday in an emailed statement.

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