Hill Republicans Press FCC to Release Net Neutrality Order Feb. 5

“Given the significance of the matter and the strong public participation in the commission’s proceeding to date, we believe the public and industry stakeholders alike should have the opportunity to review the text of any proposed order or rules prior to commission action,” the three Republicans told FCC Chairman Tom Wheeler. “Accordingly, we urge you to publicly release the draft text of the Open Internet Order when you circulate it to your fellow commissioners.”

The FCC has received the letter and is reviewing it, an agency spokeswoman told us Friday, declining comment on whether the agency may release the order earlier. FCC Commissioner Ajit Pai, one of the two Republican members, backs the lawmakers’ request, said a Pai spokesman.

Thune and Walden pressed witnesses at two net neutrality hearings Wednesday about whether any witnesses would be able to see the FCC’s net neutrality order ahead of the vote. At both the Senate and House hearings, the witnesses doubted they would see any text before the meeting. Thune in particular stressed what he felt was the more openness of the congressional process. Thune, Upton and Walden back a legislative alternative to the FCC action and have floated draft legislation that would codify net neutrality principles while limiting FCC use of Communications Act Title II and Telecom Act Section 706.

“It’s our job to legislate,” Walden told reporters last week. “It’s our responsibility to go legislate in this area.” He expressed confidence that Republicans could advance legislation under regular order, at least in the House. “Of course none of us will know what [the FCC is] going to do until they vote on it, which is the way their process unfortunately works,” Walden added. “Chairman Wheeler’s made it clear to me he’s not slowing down.”

“Transparency in this matter is particularly vital as so many of the public participants who have expressed an interest in net neutrality have no meaningful access to the proceeding at the commission,” the Republicans told the FCC. “Currently, the general public, as well as Congress, is entirely reliant on press reports and generic, high-level statements regarding the status of the proceeding and the content of the rules.” They blasted “limited access to information.”

But the public has no idea with whom Thune, Upton and Walden met when they wrote their net neutrality legislation, New America Foundation Open Technology Institute Policy Counsel Josh Stager told us. The letter’s “a bit of a straw man,” said Stager, a former Democratic Senate staffer. “It’s not as if the FCC has been hiding some secret final order. They're still writing the thing. The ex parte rules give the FCC some built-in transparency. Those rules enable the public to see who's been meeting with the FCC and what they discussed.” The Hill Republicans are “throwing stones in a glass house," Stager said.

A different former Senate staffer said releasing orders early might violate administrative process rules. He envisioned it opening up a host of problems related to potential public comment on the order and wondered, for instance, about the edits that FCC commissioners normally make as part of the circulation period. Comparing Hill and FCC processes is like comparing apples and oranges, he said, though he said from a public relations standpoint, the letter makes perfect sense. But Wheeler probably lacks any appetite for releasing the order early anyway, the ex-staffer told us.

Others countered that the FCC could release the order earlier but differed on the virtues of doing so. “I don't see any reason, under the [Administrative Procedure Act] or otherwise, why the FCC, on its own volition, cannot release the draft order,” said Free State Foundation President Randolph May. “In fact, in light of the intense controversy and serious legal questions surrounding the proposal to adopt a Title II regulatory approach -- remember, it is Chairman Wheeler himself who has clearly signaled the order's direction -- in this particular instance I agree it would be a good idea to release the draft order. And the most appropriate way to do it is with a Public Notice announcing that any further comments must be submitted by a specified date and all ex partes completed by that date. This might mean that, ultimately, the date for the Commission's consideration would be pushed back a month or two.” May is a former chair of the American Bar Association’s Section of Administrative Law and Regulatory Practice and a former associate general counsel to the FCC.

Georgetown Law Institute for Public Representation Senior Counselor Andrew Schwartzman agreed an early release probably wouldn't violate the APA. But he called the letter “a transparent attempt to delay the item and interfere with the FCC’s ordinary processes.” Walden’s FCC process revamp legislation, which Thune has indicated support for, would amend the Sunshine Act to allow three FCC commissioners to talk about draft items privately -- a scenario “entirely inconsistent” with what the letter advocates, Schwartzman said. The Hill Republicans also don’t apply the same principles to themselves, he said: “I would ask them if they would like to release the initial draft of the net neutrality legislation they published last week. I would also like to know with which stakeholders they shared earlier drafts and what changes they made in response to those lobbyists’ comments.”