FCC Laser-Focused on Hill Net Neutrality Action All Year, Private Emails Show

When Senate Commerce Committee ranking member Bill Nelson, D-Fla., warned that Democrats couldn't back any open Internet legislation from Chairman John Thune, R-S.D., that removes the FCC from the equation, one of Wheeler’s top advisers praised the position: “Yeah Bill!” Gigi Sohn, a counselor to Wheeler, wrote in a Jan. 20 email to Sara Morris and Andrew Woelfling, respectively the director and deputy director of the FCC’s office of legislative affairs at the time. Sohn had led Public Knowledge for years before joining the FCC in November 2013, and Public Knowledge has lobbied in support of the FCC’s order and generally said no legislation is necessary.

Morris now lobbies for iHeartMedia but Woelfling remains with the FCC as a deputy alongside David Toomey. Mike Dabbs started as director last week. In the early months of 2015, the FCC staffers shared press accounts and coordinated on congressional response to the agency’s net neutrality proceeding and the order commissioners approved in February. The exchanges amounted to more than 500 pages of FOIA results returned to us. Thune wants to craft bipartisan legislation codifying net neutrality rules while avoiding Communications Act Title II reclassification of broadband. He has said the administration warned off Democrats from cooperating with him (see 1502040047), which those pages didn't directly show. One hundred pages of responsive records were withheld in full due to claimed FOIA exemptions.

“Having close contact, and even coordination, between the FCC and congressional offices is a way of doing business that is as old as the Commission itself,” said Robert McDowell, a former FCC commissioner now with Wiley Rein. “In fact, such communications are a necessary and proper part of the job of being a FCC commissioner or chairman. The FCC is a creature of Congress and is overseen and funded by those directly-elected representatives of the American people. What should raise eyebrows is when the FCC pulls up the draw bridge and hunkers in the bunker to avoid, or work around, Congress -- which happens from time to time. It is behavior like that that gets FCC chairs into trouble."

“On net neutrality, everyone familiar with the process knew there would be an active Hill response to Title II reclassification, including prospective legislation, critical oversight hearings and appropriations riders,” said Kevin Werbach, professor at the University of Pennsylvania’s Wharton School and a former member of the Obama administration’s FCC transition team. “It would have been shocking if the chairman’s office didn’t plan for that and take it seriously.”

Agency officials started circulating copies of the six-page Thune legislative draft Jan. 16, and staffers in the Office of Media Relations started tracking its coverage, assembling a “sweep” of press items in a Jan. 21 email to senior Wheeler aides, sent the same day as two Commerce Committee hearings on the topic. In a Jan. 22 email, Morris forwarded to senior Wheeler aides a GOP checklist outlining the virtues of net neutrality legislation. “FYI -- this is the same checklist/comparison Thune circulated,” Morris wrote. “Needs a response from D's and groups.” On Feb. 4, Morris alerted senior FCC officials to an email that Senate Commerce Committee telecom policy director David Quinalty sent to Commerce Committee legislative aides from both parties in addition to a staffer for Majority Leader Mitch McConnell, R-Ky. Thune is committed to working with all members, Quinalty privately told the legislative aides: “As you review the FCC’s plans this week, please keep in mind that our bosses have the ability to chart a better path forward for the Internet than the FCC’s legally fraught proposal.”

NTIA Watching, in Touch With FCC

The FCC’s Morris also stayed in contact with NTIA, the administration’s telecom arm, on Hill developments, according to results from a separate Communications Daily FOIA request filed with NTIA. “Hot off the presses,” Morris wrote in a Jan. 16 email to Cyril Dadd, NTIA congressional affairs liaison, and Jim Wasilewski, director of NTIA congressional affairs, forwarding an email from House Commerce GOP telecom counsel David Redl including the net neutrality draft bill from Republican Commerce leaders. “How does FCC feel about this?” replied Dadd.

In a Jan. 21 email exchange on the day House and Senate Commerce committees both held hearings on the GOP draft legislation, NTIA’s Dadd pressed Evelyn Remaley, deputy associate administrator for the Office of Policy Analysis and Development, on what NTIA Administrator Larry Strickling should say about net neutrality legislation. “Evelyn, did you give any more thought to talkers for Larry regarding net neutrality legislation?” Dadd wrote: “He has some Hill meetings tomorrow." NTIA officials exchanged edits on the talking points for net neutrality legislation by a Feb. 4 exchange. Strickling himself was emailing on the topic less than a month later, inquiring of Dadd about witnesses for a Feb. 25 House Communications Subcommittee hearing on the net neutrality order.

On Jan. 16, Dadd showed Remaley a press quote from a White House official saying net neutrality legislation is unnecessary but the White House is open to working with those who share the president’s open Internet goals. “Cyril, did you clear that comment?! Ha ha! Hmmm. ... I feel like I'm missing Tom Power right about now,” Remaley said, referring to the former NTIA chief of staff and deputy chief technology officer who now is CTIA general counsel. “Anyway, we are looking at the bill and will be ready to consult on the info memo when you are ready.”

At the FCC, legislative affairs official Toomey assembled all lawmaker statements and tweets about the developing net neutrality discussion ahead of the FCC’s February vote. In one Feb. 4 email to senior Wheeler aides, Toomey collected more than a dozen lawmaker reactions. He seems to have directed some of these compilations directly to Wheeler. One email of collected lawmaker statements sent earlier in the day was addressed “Mr. Chairman,” and it included one redacted email address among recipients -- a redaction not unique to this exchange and raising the possibility that many emails were not only to senior Wheeler aides but also to Wheeler himself. This close tracking among Wheeler’s aides factored into how the aides prepared Wheeler for his many Hill oversight hearings (see 1507060043).

Close Contact With Reid, Nelson, Wyden

One source of intense FCC attention was the net neutrality implications of the Senate’s budget amendment process in late March. The Senate budget resolution and its many amendments, culled from hundreds offered, was passed March 27 and is entirely symbolic and with no binding effects on law. But Thune and Nelson partnered for a net neutrality resolution that did pass, dedicated to preserving an open Internet in a way that offers “clear and certain rules and does not jeopardize public safety, universal service, privacy, accessibility, consumer protection, competition, innovation, or investment” and revised from an earlier more partisan version from Thune (see 1503260050). “The vote will be very interesting to see,” the FCC’s Morris told FCC General Counsel Jonathan Sallet and another FCC official, whose name was redacted, when she emailed them and other top advisers about the revised Thune/Nelson amendment on March 26. She had just received a copy of the amendment from John Branscome, a Democratic Commerce Committee counsel working for Nelson who told Morris he would be calling her shortly.

FCC legislative staffers relied on back and forth with the offices of Reid, Senate Finance Committee ranking member Ron Wyden, D-Ore., and Nelson to stay abreast of amendment offerings. Several lawmakers told us Wheeler and his team work to cultivate relationships with members of Congress (see 1506080038), and previously disclosed emails show Wheeler has emailed with Reid's senior staff. Ayesha Khanna, chief counsel for Reid, worked with her staffers to inform the commission of any FCC-related amendments on March 24 and 25. On March 26, Wyden staffers Trevor Jones and Anderson Heiman emailed with FCC legislative staffers Morris and Toomey, initially asking the FCC for thoughts on the Thune/Nelson amendment and then later debating whether an amendment, which failed to pass, from Sen. Ted Cruz, R-Texas, had net neutrality implications. “I’m under the impression this is a remote sales tax/internet access tax issue, and not a net neutrality amdt,” Heiman told the FCC. “And, you should also know, since it’s a ‘spending’ neutral reserve fund, dems are going to line up against it.” Heiman tried to get in touch with Cruz’s office but by mid-evening, reviewed a Cruz summary and emailed the FCC to say it “DOES look like a NN amdt.”

An amendment from Sen. Mike Lee, R-Utah, “would not allow the FCC to reclassify broadband under Title II,” Toomey told Wheeler aide Daniel Alvarez, Sohn and agency Associate General Counsel Jennifer Tatel the night of March 25. “As a reminder, language included in the budget resolution is not binding but can set a market [sic] for future legislation. We are aware of the amendment’s potential impact and can communicate that to relevant Hill offices upon their request.” Toomey asked Alvarez to give him “a buzz” on a Lifeline amendment from Sen. Joe Manchin, D-W.Va., which ultimately never passed.

FCC and Hill staffers fired off emails to one another through the early morning hours during the budget amendment votes. “Just talked to Nelson Committee staff -- the Thune-Nelson OI amendment will likely be accepted by voice vote,” Toomey told advisers including Wheeler Chief of Staff Ruth Milkman, Sohn and Sallet in an email sent at 1:40 a.m. during the votes. The Commerce Committee’s Branscome emailed Morris, Toomey and chief legislative policy counsel Jill Pender at 3:35 a.m. to let them know the Thune/Nelson amendment was advancing in a manager’s package of amendments. “John, I can't believe you were up doing this until 3:30 am!!!” Morris replied in an email time-stamped 4:16 a.m. “Thank you, all of you!! We will make sure the Chairman is aware of the extraordinary effort you've put in -- once again -- on the agency's behalf.”

Toomey formally notified Wheeler advisers on the afternoon of March 27 that three telecom amendments, including the Thune/Nelson one, were successfully included in the budget resolution. He also mentioned two failed amendments, the Cruz amendment on Internet taxation and an amendment from Sen. Deb Fischer, R-Neb., that would have forced the FCC to modify regulatory fees to better match the benefits for those paying the fees. The FCC and Democratic senators stepped up involvement in both the Cruz and Fischer amendments. “Because the FCC has a pending proceeding on regulatory fees, Sen. Nelson’s staff worked to adjust the language that would have required to FCC to seek public comment on regulatory fees,” Toomey told Wheeler aides of the Fischer amendment. Of the Cruz amendment, Toomey said: “While Sen. Cruz’s stated main goal was to prevent online sales taxation, he may have also used this amendment as evidence that the Open Internet rule would lead to new taxes on consumers. Sen. Wyden and Nelson raised concerns and the amendment was not adopted.”

“Nothing that I’ve seen strikes me as in any way odd or strange,” said Blair Levin of the Brookings Institution of the relationships among FCC officials, the executive branch and Congress. Levin, an FCC chief of staff under Chairman Reed Hundt and staffer for Chairman Julius Genachowski, described a natural set of tensions and communications between any FCC chairman’s office and offices on Capitol Hill.

Net neutrality “has absolutely dominated discussions,” Levin said, noting its prevalence for many years. He said such relationships don't happen within a vacuum and saw the private email communications as “manifestation of ‘nobody gets to play dictator.’” Every FCC chair believes he can be principal but is ultimately subject to the push and pull of other forces affecting his will, including Congress, said Levin: “Policy develops in this town by virtue of alliances and conflict. The FCC will be looking for friends in Congress.”