FCC Still in Hot Seat on Capitol Hill

Wheeler failed to provide documents on White House-FCC communications to Chaffetz Friday, his requested deadline, a committee spokeswoman told us. Senate Homeland Security Committee Chairman Ron Johnson, R-Wis., heads an investigation similar to Chaffetz's and wanted the same type of documents by Monday. The FCC told Johnson staffers they would provide a partial response Monday but committee staffers hadn't received anything by our deadline, a Johnson spokesman told us. The FCC has said it can’t respond fully, the Johnson spokesman said.

“Your testimony may help allay concerns that the draft rules are the product of an insufficiently transparent and accountable rulemaking process,” Chaffetz told Wheeler in a four-page letter Monday, citing disappointment with Wheeler rebuffing his invitation and criticizing agency behavior: “With regard to this 332-page order, there were no public hearings, the document remains secret, no comment period existed, and you declined to testify in an open hearing before the Committee. In addition to these concerns, questions exist as to whether the White House had an improper influence on the Commission’s drafting of these rule changes.” Wheeler has refused to make the order’s text public, citing commission precedent, and has outlined the broad details of the order. The agency received millions of comments on the net neutrality NPRM and held roundtable discussions.

Wheeler "has agreed to testify but given the short notice has requested that he be allowed to appear before the Committee at a later date," an FCC spokesman told us about Chaffetz's latest letter. The FCC is working with Chaffetz staff to supply the documents, an agency official said.

Chaffetz scheduled the hearing, not listed as postponed as of our deadline, for 2 p.m. in 2154 Rayburn. A committee spokeswoman said Chaffetz is hopeful that Wheeler, the only invited witness, will still accept the invitation, and that the committee would reassess options if not. A House Communications Subcommittee’s net neutrality hearing is hours earlier, 10:30 a.m. in 2322 Rayburn. There, witnesses are Information Technology & Innovation Foundation President Robert Atkinson; Internet Innovation Alliance Honorary Chairman Rick Boucher; Larry Downes, a project director with the Georgetown Center for Business and Public Policy; and Public Knowledge President Gene Kimmelman. Of the four, only Kimmelman has defended Wheeler’s Title II plans.

“I would if I were him,” Atkinson told us, urging Wheeler to “step back and take a deep breath” and come testify before the House Wednesday. “They should make the order public,” he said, emphasizing that it’s “such a huge, huge deal” and with an essentially secret vote scheduled Thursday.

But Atkinson warned against GOP fervor in its administration influence investigations, despite saying it’s “pretty obvious” that the order is “the president’s vision.” President Barack Obama backed reclassification in November. “The only viable, effective solution will be a bipartisan bill” on net neutrality in Congress and GOP investigations may put Democrats into “a defensive crouch” and it “makes it harder” for them to come together on legislation, Atkinson said. He called GOP draft net neutrality legislation “the right direction” but potentially in need of changes. Capitol Hill action on net neutrality will signal how lawmakers can collaborate on tech policy going forward, a test of whether they can move “beyond the partisan warfare,” he believes: “I think we’ll see in the next three months if they can do it,” he said, envisioning a Groundhog’s Day scenario of repeating gridlock if not.

House Communications Subcommittee Republicans want to investigate the “legal, economic and policy uncertainties created by the FCC’s proposed action” of Title II reclassification, said an eight-page GOP memo released Monday. Wheeler’s order “injects a great deal of uncertainty into the future of the Internet,” it said. “Much of the uncertainty surrounding what the Commission will do could have been avoided if the FCC’s process were more transparent.” The order will prompt court challenges and may hurt telecom investment, the GOP staff argued, citing examples from the EU. The memo pointed to “questions about how this decision will impact international regulation of the Internet.” In his testimony Atkinson will also outline what he sees as the uncertainty of Title II, he told us. Wheeler’s order “is not about finding balance” and may come with “fairly significant cost,” with the chance of being overturned by the courts “clearly above 50 percent,” he said.

The GOP memo raised legal questions: How will the commission forbear? Can the FCC forbear from regulating rates if it reclassifies? Will reclassification result in new fees on Internet bills? How will the FCC include wireless?

In his letter on Monday, Chaffetz, like other Republicans, urged Wheeler to make the draft order public. He brought up media ownership rule changes from 2003 and 2007 that “illustrated far greater transparency in pursuit of public interest” than what’s transpired with the net neutrality rulemaking.

Some Hill Democrats have become more vocally supportive of the FCC. “We’re on the cusp of a historic day,” House Communications Subcommittee ranking member Anna Eshoo, D-Calif., plans to say Tuesday at Comptel’s Washington conference, according to prepared remarks. She will call Wheeler’s order “the strongest open Internet protections ever proposed,” relying on “the strongest legal framework” and tapping “many of the same basic consumer protections that have governed voice service for years.”

Sen. Ed Markey, D-Mass., will join Free Press on a media call Tuesday to praise the order. He also uploaded a video Friday in favor of the FCC vote: “On Feb. 26, the Internet as we know it will be at stake.” Sen. Al Franken, D-Minn., scheduled an 8 p.m. call Tuesday with Democracy for America, its purpose in part to attack GOP draft legislation circulated last month. “Even as the FCC weighs in, some members of Congress are pushing for telecom-friendly legislation that would strip the FCC of the power to reclassify broadband -- opening the door for loopholes and weaker regulation that corporate internet providers could exploit,” the advisory for that call said. It urged people to donate to Democracy for America “so we can ramp up our campaign to push back on corporate power and save Net Neutrality.”