FCC IG Digging Into Net Neutrality Process Questions, Chaffetz Says

The news caught several off guard, and FCC Chairman Tom Wheeler didn't show familiarity with the internal agency probe. “Would you be willing to cooperate with this investigation?” Chaffetz asked Wheeler, the lone witness. “Of course,” Wheeler affirmed. An FCC spokeswoman declined any further comment. FCC Assistant Inspector General-Investigation Jay Keithley told us that protocol dictated the IG’s office could not confirm nor deny any ongoing investigation.

“I don’t really have a reaction to it at this point, having just found out about it myself,” Senate Commerce Committee Chairman John Thune, R-S.D., told us at the Capitol, saying his staff may have more details about the IG investigation: “The saga continues.” Thune plans the second of what will be five FCC oversight hearings featuring Wheeler Wednesday at 2:30 p.m. in 253 Russell.

Chaffetz also told reporters he believes “we’re going to have to compel openness and transparency” through legislation: “Because given the choice, the FCC chose not to do that.” During the hearing, he complained of what he judged many unnecessary redactions in Freedom of Information Act responses from the agency and held up unredacted emails, often questioning the basis for not disclosing the text when comparing them with redacted versions. He and other lawmakers criticized Wheeler for not testifying before voting on the net neutrality order and not making the order text public before the vote. Chaffetz mulled necessity for a 30-day notice, making order text public before a vote.

Republican lawmakers repeatedly interrupted Wheeler throughout Chaffetz’s hearing and tried to use the many emails they had acquired (see 1503160064) to suggest the White House unduly influenced the FCC’s net neutrality order. Wheeler sent one email Nov. 10 to his aides Ruth Milkman, Philip Verveer and Shannon Gilson calling it “interesting” that net neutrality advocates protested at his house the same day President Barack Obama publicly backed Communications Act Title II reclassification of broadband.

“Does this suggest a secret plan, a secret set of instructions?” Wheeler countered. “This was clearly showing there was no kind of coordination [with the FCC]. … This suggests that maybe they were coordinating with others.”

David Krone, then-chief of staff to then-Senate Majority Leader Harry Reid, D-Nev., told the White House “to back off Title II,” Krone emailed Wheeler May 15. “Went through once again the problems it creates for us.” In a later email that day, Krone accused White House National Economic Council Director Jeff Zients of “overreacting” on net neutrality. “My main point to the WH is how can you declare today that regulations written in the 1930’s will work fine for 2014 technology. Let Tom do his job and this will be fine.”

“It looks like Senator Reid was backing you at this time” and trying to get the administration to “back off of pressuring you,” Rep. John Mica, R-Fla., told Wheeler. “Reid was a big cheese at this time, and this was his chief of staff.” Mica thinks Zients “strong-armed” Wheeler: “It was pretty evident and everyone saw it.” Rep. Jody Hice, R-Ga., said Krone’s backing off language makes the administration input seem like “more than an opinion.” A Reid spokesman didn't comment.

The lawmakers tallied the many visits Wheeler had with administration officials throughout last year, but Wheeler said net neutrality didn't factor into all of them. They criticized that there was only an ex parte filing for one final meeting -- one where Zients told Wheeler that Obama would soon back Title II. “I would argue it changes on Nov. 6, when again you met with Zients,” Rep. Jim Jordan, R-Ohio, said of Wheeler’s evolution on when to reclassify. “Nine times, you went to the White House. On Nov. 6, Jeff Zients comes to you. … Jeff Zients went to you and said, ‘Hey, things have changed. We want the Title II approach to this rule.’ Am I wrong?” The lawmakers also unveiled an email from a top AT&T lobbyist to Verveer sent after Obama’s Title II backing. The AT&T lobbyist dubbed the announcement “awful” and “bad for any semblance of agency independence,” he said. “Too many people saw Zients going in to meet with Tom last week.” Verveer assured the AT&T lobbyist that the FCC was “trying to schedule a conversation” for that afternoon.

Wheeler said the FCC order “was uniquely our plan,” incorporating provisions on interconnection and parts of forbearance that Obama never mentioned. He met with Obama in the Oval Office only once, in the early days of his chairmanship. “'You need to understand -- I will never call you. You are an independent agency.’” Obama told Wheeler, according to Wheeler’s recollections. “He has been good to his word, sir.” Wheeler met with the administration officials on trade, national security, spectrum, auctions and E-rate -- “numerous issues,” he insisted. He said his vision for the net neutrality ruling evolved over the past year independent from Obama's message.

Wheeler also discounted recollections of House Communications Subcommittee Chairman Greg Walden, R-Ore., that as late as November Wheeler pledged to him that he wouldn’t reclassify (see 1503020050). “I went back to the contemporaneous notes from that meeting,” Wheeler said. “My notes say that I said that we would use light-touch Title II and Section 706.”

Democrats defended the FCC, with one lawmaker comparing the oversight to the Watergate investigation and several suggesting a routine nature of Wheeler’s administration visits. House Oversight Committee ranking member Elijah Cummings, D-Md., had requested documents about the GOP FCC commissioners and argued they’re “working with Republicans on and off Capitol Hill,” collaboration also warranting “scrutiny.” Cummings attacked Commissioner Mike O’Rielly. O’Rielly collaborated with TechFreedom President Berin Szoka and former GOP commissioners Robert McDowell, now with Wiley Rein, and Harold Furchtgott-Roth, now with the Hudson Institute and an economics consulting firm. Emails from last April showed that O’Rielly sought edits from these three people in the course of writing a net neutrality op-ed, with no ex parte filing issued. “I know it looks like a lot of red ink but I really just tried to finesse, clarify, etc.,” Szoka told O’Rielly. O’Rielly “took a bunch and left out some stuff,” he said of the edits in an email to an aide.

“All three of these individuals have professional interests that could be affected by the passage of this rule,” Cummings argued. “These edits provided by outside parties seem clearly designed to affect the ultimate decision of the FCC.” O’Rielly issued a statement arguing “there was no need for ex parte filings because they were commenting on my personal views and advocacy, not lobbying or expressing views to the Commission in any capacity.” The communications didn’t affect O’Rielly’s “ultimate decisions” or the proceeding outcome, he said.