Wheeler Regime Setting New Record for Party Line Votes

While the FCC had several relatively quiet months over the summer and fall, contentiousness reached a crescendo in December. At the Dec. 11 meeting, Republican Commissioners Ajit Pai and Mike O’Rielly vigorously dissented on an incentive auction procedures public notice (see 1412110065). Both said they had made numerous suggested edits to the notice and nearly all were rebuffed. The two Republicans also dissented on an order raising the annual E-rate spending cap (see 1412110049).

A week later, Pai and O’Rielly blasted Wheeler for moving forward on two items, an order on data roaming and the annual wireless competition report, both on delegated authority (see 1412180058). “This is not how democracy works,” Pai said in his statement. “And it’s not how the FCC in particular has ever worked.” Wheeler released a statement of his own saying he had been willing to seek a vote on the competition report and the data roaming decision was properly handled on delegated authority. “The job of the Commission is to make decisions in a timely manner,” he said at the time. “Industry and companies need to know how to run their businesses.”

One FCC official said Wheeler could have gotten consensus on about half of the 11 3-2 party line votes by offering limited concessions to the Republicans. For example, on the auction procedures PN, Wheeler could have gotten the Republicans to concur by making some of the tentative conclusions questions and extending the comment deadline, the official said.

Contentious issues loom, especially net neutrality, on which FCC Democrats and Republicans have never been aligned. Commissioners have disagreed repeatedly on the best approach to the pending TV incentive auction, which is expected to consume much of the agency’s time between now and its expected start in 2016. Asked about the number of 3-2 votes, Wheeler said after the commission’s December meeting, “That’s how democracy works.” (see 1412110065).

“The eighth floor is more divided than ever and not just between Republicans and Democrats but even among Democrats,” said a former FCC official. “One big question is will that change over the course of the next few years and whether Chairman Wheeler can get some of the divisive issues behind him.”

Things tend to “get uglier” when the battles are over process, said Rick Kaplan, NAB general counsel and former chief of the Wireless Bureau. “Commissioners over time will always have substantive disagreements, you expect that, 3-2 votes, all those kinds of things,” Kaplan said. “When it starts to be a matter of commissioners saying that the right process isn’t being followed that’s when you have serious problems that are often hard to overcome.”

"It seems the objections voiced by Commissioner Pai, if they are at all legitimate, must boil down to the claim that the FCC has never before proceeded on delegated authority when a single commissioner requested a vote,” said Matt Wood, Free Press policy director. But he said former Chairman Kevin Martin also handled one of the wireless competition reports on delegated authority and Pai served under Martin in the Office of General Counsel. “That's why it's so amusing to read Commissioner Pai's statement complaining that Congress gave this annual responsibility to the commission and not the bureau," he said. "When it comes to absolute claims that something has never happened before, I'd tend to agree with the view that the divisions are just more public today rather than believing they are truly unprecedented."

“It’s impossible not to notice how rancorous things have been this year at the FCC,” said Larry Downes, project director at the Georgetown Center for Business and Public Policy. “I don’t know if the breakdowns were avoidable or if poor management techniques are the source of the problem, but the net result has been that consumers are not getting what they need, what they have paid for, from the agency.” Downes said the AWS-3 auction has been an obvious success. Aside from that “the FCC’s private machinations have delayed progress on essential work, including the incentive auction, the IP transition, pending transactions and the completion of a new contract for local number portability,” he said. “Many of these are approaching crisis status. None of them needed to.”

TechFreedom President Berin Szoka said sharp disagreements on substance are not exactly new. The problem is Wheeler has “repeatedly steamrolled over his fellow commissioners, even the Democrats, on key issues,” he said. “When he can get away with it, he makes major policy decisions unilaterally” by having the bureaus act on delegated authority, Szoka said. Wheeler's refusal to seek a vote on the items in December was “nothing less than breathtaking,” he said. “The tradition has long been to allow a single commissioner to force a commission vote. In this case, both Republicans asked for a vote and Wheeler ignored them.”

Net neutrality could provoke a crisis, Szoka predicted. “If he barrels forward with reclassification even as lawmakers are working across the aisle to craft a legislative compromise on net neutrality, Wheeler's autocratic tendencies could provoke a political crisis that seriously undermines the FCC's credibility,” he said. “The inevitable rewrite of the Communications Act could fundamentally change not just the substance of the law, but how the FCC operates.”

One could argue that the FCC's powers should be restructured so pure policymaking functions are transferred to the executive branch “so that the president will be politically accountable for communications policy decisions, as opposed to adjudications involving specific parties,” said Randolph May, president of the Free State Foundation. That’s not how things work, he conceded. “Nevertheless, it seems to me that Tom Wheeler increasingly is taking actions that, even if they don't outright violate, run up against the boundaries of the current law. He seems to be exercising power in a way that marginalizes his colleagues and this is obviously going to increase tensions. I suspect that in 2015 we'll see these actions by the chairman, if they continue, implicate basic rule of law norms."

But Georgetown Law Institute for Public Representation Senior Counselor Andrew Schwartzman said divisions at the FCC are not usual. “What is unusual is that the commissioners are being more public about it than has been the case in recent years,” he said. “I would observe that problems like this arise when a chairman is trying to do big things. Chairman Wheeler is willing to take risks to accomplish his goals. As someone who is generally supportive of these objectives, I am glad that he is willing to take the heat.”

The differences at the FCC are not new or surprising, agreed David Honig, general counsel of the Minority Media and Telecommunications Council. “Chairman Rosel Hyde and Commissioner and civil rights hero Clifford Durr were often at odds. Chairman Dean Burch and Commissioner and public interest pioneer Nick Johnson barely spoke. Chairmen Dick Wiley and Charlie Ferris presided over the last completely non-contentious sets of commissioners.” Honig said the differences between the commissioners are professional, not personal. Wheeler draws on the expertise of the individual commissioners, he said, whether it’s Pai on broadcast engineering reform, Mignon Clyburn on media ownership, Jessica Rosenworcel on USF or O’Rielly on public safety.

The FCC is a “love feast” compared with the bipartisan bickering of Congress, Honig said. “Fortunately, today's divisions don't extend to civil rights, process reform, or public safety,” he added. “On those critical topics, the agency speaks with one voice. For example, all five commissioners have been open and enthusiastic about finding ways to promote diversity and close the digital divide.”

Former FCC Chief of Staff Blair Levin said he respects the two Republicans. “Commissioners have a choice about how they want to engage with the chairman’s office,” he said. “It is perfectly legitimate to say that my clear goal is to focus on changing policy direction, rather than specific policy cuts. But if you do that what you’re signaling is don’t bother negotiating the details; let’s not waste each other’s time.”

Another former FCC official said fights between former Chairman Al Sikes and Commissioner Sherrie Marshall and former Chairman Reed Hundt and Commissioner James Quello were legendary. “But I do think that the trend to have FCC nominees substantially chosen by congressional leaders, rather than to have congressional leaders pick from among candidates proposed by the White House, has led to the FCC mirroring Congress, with the result that as Congress has become polarized, so has the FCC,” the lawyer said. For example, the White House nominated Republican Rachelle Chong, but former Majority Leader Bob Dole, R-Kan., had vetted her. That is “pretty different from nominations since then.”

A Republican FCC official said the Hill has played an expanded role in picking commissioners since the 1990s. “This is how it has been for a number of years and we haven’t had this problem,” the official said. “Yet, suddenly we have this spike of party line votes starting in 2013.”