Congress Looking Into White House’s Role in FCC’s Net Neutrality Regulations

Draft of regulations being hidden from public

Tom Wheeler, chairman of the Federal Communications Commission / AP
February 9, 2015

The secrecy surrounding the Obama administration’s plans for regulating the Internet has prompted a congressional inquiry into whether the independent Federal Communications Commission or the White House and its allies are calling the shots over the future of the nation’s broadband networks.

A top adviser to Tom Wheeler, chairman of the Federal Communications Commission (FCC), defended Wheeler's decision to hide his latest draft of Internet regulations from the public until after the agency voted on them at the end of the month during a public question and answer session on Twitter held on Friday, Feb. 6.

Gigi Sohn, Wheeler’s special counsel for external affairs, pointed to over 4 million public comments submitted to the agency as proof of the public’s support, despite the diversity of the content of those comments.

"Our proposal is based on that record," Sohn said via Twitter, claiming that the public had been provided ample input over the past year.

However, the head of the House Committee on Oversight and Reform signaled to Wheeler on Friday that the committee planned to launch an investigation into agency, pointing to a White House effort to influence the FCC to craft rules that favored a coalition of pro-net neutrality startups.

The committee’s chairman, Jason Chaffetz (R., Utah,  requested in a letter to Wheeler that the FCC preserve all of its internal net neutrality-related documents produced since a federal court struck down its previous net neutrality rules on Jan. 14, 2014.

The FCC has until Feb. 20 to provide the committee with all net neutrality-related communications and calendar appointments between FCC employees, the White House, and other executive branch agencies since Jan. 14, 2014.

Chaffetz reminded Wheeler that "the Committee has the authority to investigate "any matter" at "any time."

Wheeler himself has attracted criticism from both sides of the political spectrum for his work as a former telecom lobbyist, venture capitalist, and bundler for the Obama campaign.

The FCC has been stonewalling requests made by Jason Leopold, a reporter for Vice News, under the Free of Information Act for material concerning the telecom industry’s influence over the net neutrality proceedings for about 10 months.

Leopold reported in November 2014  that the FCC reviewed about 4,600 documents for his request, but provided only 600 pages of heavily redacted material.

The FCC withheld a "vast majority of those documents," he wrote, claiming exemptions that included the protection of, among other things, "records that are part of the behind-the-scenes decision-making process."

Leopold recently told this reporter via Twitter that the agency emailed him on Christmas Eve stating that it was still waiting on the White House’s approval to grant the remainder of his request.

Leopold, who has made a career out of extensive investigations into executive branch agencies, confirmed the FCC was the first agency ever to tell him it needed White House approval to grant his request.

"And they put it in writing," he said.

The FCC is an independent agency, but its leadership has attracted congressional attention.

Making net neutrality—which requires internet service providers to charge the same price for the transmittal of data regardless of the type of data being transmitted—the law of the land is a well-documented promise that President Barack Obama made as a candidate in 2008. Debate over the idea of using the government to enforce net neutrality had already been circulating in policy circles for five years.

Investigations of special interest influence on both sides of the issue—including reports by the Wall Street Journal, the Washington Post, and—have repeatedly documented  coordination between the White House and the FCC and pro-net neutrality activists, companies, and the administration’s campaign supporters.

For example, Sohn, who joined Wheeler’s staff in late 2013, is the cofounder and former president of Public Knowledge, an influential pro-net neutrality organization.

The professional backgrounds of Wheeler’s staff range from across the tech and telecom industries; broadband-sponsored free market advocates, however, raised concerns that Sohn was politicizing the agency.

Broadband providers have poured millions of dollars into lobbying against net neutrality regulations, but major Internet companies and progressive foundations have also funded lobbyists and activist organizations.

These self-styled "consumer groups" promoted themselves as underdogs fighting on behalf of the public and the Internet.

Whereas concerns expressed by Comcast and Google’s leadership over stricter utility-style regulations fell on deaf ears inside the administration, the White House actively coordinated with pro-net neutrality startups and activists, according to the Wall Street Journal.

President Obama’s call for strict Internet regulations following the Nov. 2014 elections was seen as a political tactic meant to box in Wheeler, who had been looking to make a compromise with both Internet startups and broadband providers.

When Republican members of Congress offered a compromise in January also looking to make net neutrality the law of the land, pro-net neutrality groups launched a campaign warning them to "back off" and telling supporters Congress was trying to "undercut" their efforts.

The Feb. 6 Twitter session itself was part of an aggressive public relations campaign Wheeler’s office has waged in an attempt to promote the rules as the genuine will of the American people.

Ajit Pai, one of the FCC's two Republicans commissioners and an avid critic of net neutrality regulations, posted a picture to Twitter that morning of himself holding a copy of the rules.

By that evening, the photo had been shared on the social network over 850 times by other users.

Unlike Congress, where members openly introduce potential laws for their constituencies to inspect prior to any vote, the public normally does not get to see the actual text of the Commission’s new rules until it releases them days or even weeks after the vote.

"Here is President Obama’s 332-page plan to regulate the Internet," said Pai. "I wish the public could see what’s inside."