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Senate Republicans say the FCC may have broken the law to give Obama net neutrality

Senate Republicans say the FCC may have broken the law to give Obama net neutrality

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A report released by Senate Republicans claims that the White House made a significant effort to influence the FCC and steer chairman Tom Wheeler to pass net neutrality rules that President Obama wanted. The inquiry was conducted by the majority on the Committee on Homeland Security and Governmental Affairs, and concludes that the FCC would not have chosen to reclassify broadband under Title II of the Telecommunications Act if the president had not supported it. Republicans in Congress have been working for years to cripple the FCC's authority, and today's report could set off a new fight over who ultimately controls the agency.

The FCC's two Republican commissioners immediately piled on to the report's conclusions after voicing strong objections throughout last year's process. Commissioner Michael O'Rielly said today that "the facts and process were thrown overboard in order to capitulate to the improper influence of the administration." And Commissioner Ajit Pai called the report a "devastating portrait of the process that led to the adoption of President Obama's plan to regulate the internet."

FCC leadership maintains that the process was transparent and proper. "It's no secret that four million Americans, including the President, urged the FCC to protect a free and open internet," FCC Press Secretary Kim Hart told The Verge. "The FCC ran a transparent and robust rulemaking process, which resulted in strong rules to ensure the internet remains a platform for innovation, expression, and economic growth."

The committee's conclusion hinges on a timeline of events that allegedly show the agency's professional staff were redirected to support the president's plan after Obama made a statement in support of Title II reclassification in November 2014. The report also claims that the FCC chose not to seek additional public comment on the proposal despite concerns raised by staff.

committee report timeline

Timeline of events from Senate committee report

The report's evidence is mostly convincing if you already believe that the Open Internet Order constitutes "heavy-handed" regulation. The report's authors believe there was no legitimate premise for FCC action toward reclassification; they write that the agency's embarrassing 2010 net neutrality defeat in court was followed by more work toward a similar policy "despite any evidence of a problem." There was only overwhelming evidence of a problem. Nonetheless, the Republican minority on the FCC's commission has taken every opportunity to portray its policy losses as a symptom of a broken process — something the report echoes by pointing out how the FCC voted to adopt the Open Internet Order along party lines.

The FCC is supposed to be independent, but not completely

As an independent regulatory agency, the FCC is supposed to be insulated partially from the demands of the executive branch, even though the president may appoint a majority of members to the commission who share their policy objectives. More importantly, the White House is not prohibited from lobbying the FCC, only from being able to remove and appoint commissioners without proper cause.

The most damning part of the report appears to be the claim that the FCC may have violated the Administrative Procedure Act. One FCC staff member wrote in an email that the agency "would want to seek further comment," while another staffer wrote that issues with Title II reclassification would "likely need more comment in the record." The report further concludes that the FCC "circumvented" transparency rules that require the agency to disclose various communications related to the rule-making process. The agency allegedly failed to provide notice that Chairman Wheeler had held a "dozen or more meetings at the White House."

Chairman Wheeler has disputed claims of collusion. "There were no secret instructions from the White House," he said in March, 2015. "I did not, as CEO of an independent agency, feel obligated to follow the president's recommendation."

Republicans in Congress want the FCC to be independent, and ineffective

Republicans in Congress have made it clear that they would prefer for the FCC to be independent, but also ineffective. Lawmakers have been working for years to appease telecommunications giants like AT&T and Verizon by demolishing the agency's ability to regulate the broadband market. Both those efforts, and recent criticism over the FCC's behavior in crafting the Open Internet Order, are based on claims that the agency's processes are flawed.
The White House may have influenced the FCC's decision to move forward with Title II reclassification, but even the Senate report acknowledges it represented one of millions of public comments in favor of net neutrality regulation. The FCC received a total of 3.7 million comments on net neutrality, with many of those coming before President Obama even took a stance on the issue.

Update, 2:15PM: This story has been updated to include comment from FCC Press Secretary Kim Hart.