House Commerce Republicans Dig In on FCC Commissioners' Freedom To Discuss Items

“Seriously? You can’t disclose even to us?” Walden asked Commissioner Ajit Pai after pressing him on the broadband privacy item the agency will vote on March 31. Pai had said he required authorization to disclose such nonpublic information. Walden described himself as confused because FCC Chairman Tom Wheeler had the ability to comment on his proposal through his press officials. “It seems peculiar that the other commissioners can’t comment but you can,” Walden told Wheeler. “This flies in the face of open government, in my opinion, and needs to change.” He speculated the committee may need to advance legislation and put it in an appropriations bill.

The NPRM “is very specific, and the reason we have a notice of proposed rulemaking is so specific language can be put out so it can be commented on by the public,” allowing full debate, Wheeler insisted. Walden called the system “intriguing” and “disheartening.” GOP commissioners agreed. “It’s a bizarre state of affairs,” Pai said. Commissioner Mike O’Rielly said the current system is “broken” and he’s “prohibited from correcting the fact sheets” about items when stakeholders misunderstand.

Commissioner Jessica Rosenworcel disagreed current rules “get in the way” of the commissioners’ talks with stakeholders. She backs more transparency improvements but believes it’s important to “preserve deliberations among the five of us” and “some space for honest deliberation,” she said.

Rep. Diana DeGette, D-Colo., was “quite dismayed” about the rules but “once it was explained to me, I can see a real reason why you’d want the actual language of the proposed rules to be handled through the chairman’s office,” she said. But during her questioning of Wheeler, she became repeatedly frustrated. “Stop, stop,” she told Wheeler at one point when asking him about the rules. “Can you just answer my question?” she asked later. She thinks “it’s important that the commissioners can exercise their First Amendment rights without releasing that language now,” she said. “And I think that’s what’s happening now.” A former Hill staffer now working for the broadband industry told us after the hearing that this was undeniably a bad day for Wheeler. The ex-staffer said it’s time to reassess when members of a chairman’s own party do little “clean-up” questioning and express frustration. DeGette was one of the committee Democrats who had objected to how Wheeler answered questions at a previous hearing (see 1512070055).

Rep. Leonard Lance, R-N.J., probed Pai and O’Rielly on whether there really was some freedom to discuss substance. Pai said it’s “flatly not true that commissioners have full latitude” in discussing what’s coming up. “I would call on the commissioners to enact civil disobedience,” Rep. John Shimkus, R-Ill., later said of the process concerns that may limit their ability to speak without Wheeler’s authorization.

Set-top Concerns

Other contentious topics included Wheeler’s set-top box NPRM and his comment to Rep. Adam Kinzinger, R-Ill., that he wants to preserve FCC authority to regulate broadband rates, stressing the possibility that certain elements of that authority may be important in enforcement and cracking down on issues such as paid prioritization deals. Committee Republicans circulated Wheeler’s answer in a news release after the hearing, calling the answer “a stunning reversal” from his previous insistence the FCC has no interest in regulating such rates. Wheeler detailed his perspective in a March 14 letter to Hill leaders that the agency released this week. “Throttling could be rates,” Wheeler told Kinzinger. “There is a rate impact. Same thing with blocking.” Republican appropriators are seeking help from Wheeler in crafting policy rider language to prohibit rate regulation, as they sought to do last year (see 1603150066). Kinzinger wants to find a way to advance his own legislation to prohibit rate regulation, which the Commerce Committee recently cleared despite the objection of committee Democrats.

Lawmakers from both parties questioned the set-top box proposal. Walden and Commerce Committee Chairman Fred Upton, R-Mich., outlined concerns in their opening statements. Commerce Committee Vice Chairwoman Marsha Blackburn, R-Tenn., she she’s heard from content creators in Tennessee who say that Wheeler’s assurances about the copyright protections do not harmonize with what she has heard.

Congressional Black Caucus Chairman G.K. Butterfield, D-N.C., warned that it could lead to “digital redlining.” Subcommittee ranking member Anna Eshoo, D-Calif., defended the proposal, slamming what she considered monopoly power in the cable market. “Copyright protection is essential and can be maintained,” Wheeler told Eshoo.

Rep. Yvette Clarke, D-N.Y., warned of “potential irreparable harm” from the set-top proposal and asked the Congressional Research Service to study the effects on small and minority programmers. She asked Wheeler to postpone the proceeding until the study is done. “I don’t know how long the delay would be,” Wheeler said.

Warring coalitions issued statements after Wheeler’s comments on set-top boxes. The Future of TV Coalition, including heavyweights such as NCTA and USTelecom, fixated on Wheeler’s comment that “there are today the equivalent of competitive set-top boxes available in the market” when questioned. “If the classic Washington definition of a 'gaffe' is to accidentally tell the truth, Chairman Wheeler’s comments at today’s hearing are a whopper,” Future of TV said. “He admitted, plainly and clearly, that app-powered devices like Chromecast and Roku offer consumers an alternative to traditional set-top boxes and are readily available in the marketplace. Which begs the question -- why is the Chairman so desperate to solve a problem that he admits does not exist?” The Consumer Video Choice Coalition, including Google and Public Knowledge, countered that Wheeler pushed back on wrongheaded criticism. “On copyright, Tom Wheeler set the record straight,” the group said. “On minority programming, Chairman Wheeler rightly points out that only a small handful of minority channels are currently on cable’s most expensive tier. Meanwhile, hundreds of new minority programmers have been denied access by cable and pay TV companies.”

Other Issues

Commerce Committee ranking member Frank Pallone, D-N.J., invoked legislation he may introduce on pirate radio and asked O’Rielly about it. Their offices are working together on legislation (see 1602230070). O’Rielly underscored the need for “getting to some of the money inside of the equation” in a measure that’s “narrowly targeted.” He cited companies and political campaigns that advertise on pirate radio. Rep. Chris Collins, R-N.Y., also raised the issue and suggested the FCC was being “a bit disingenuous” to say legislation is needed when a recent Enforcement Bureau notice addresses activities that Wheeler said legislation is necessary to do. Wheeler said the agency would be happy to clarify the authority Congress could give the agency. “I have taken serious interest in pirate radio,” Wheeler assured Collins, citing 130 enforcement actions last year. “We need to get to those who enable it.”

Shimkus slammed the FCC for cracking down on broadcaster joint sales agreements through its transaction review process, which Wheeler has defended as part of longstanding precedent. A law last year grandfathered JSAs. “How is this not an example of frustration out there in America of an agency disregarding the clear statute of law and congressional intent?” Shimkus asked. Pai agreed, saying it’s an example of the FCC thumbing “its nose at that statutory command.” Rep. Billy Long, R-Mo., also attacked Wheeler on the topic.

“Have y’all looked at that?” Rep. Joe Barton, R-Texas, asked about an update to the 1994 Communications Assistance for Law Enforcement Act. “I’m not trying to ask the FCC to shut down the Internet, but I do think that in an open society you can strike a balance between openness and protecting the public good.” He had asked about the FCC’s role in addressing terrorism last year.

“The question of what is a lawful intercept is something that is beyond the statutory authority that you have given us,” Wheeler replied. “The discussion that we had last time was to the effect that it is up to Congress to make the determination as to what is the scope of a lawful intercept. But I will assure you, sir, that we will fully take the steps necessary to make the equipment that is required to be able to make sure that lawful intercept is in place.”

Rep. Bill Johnson, R-Ohio, asked about the cost of Enforcement Bureau salaries that have grown faster under Wheeler than former Chairman Julius Genachowski. Johnson asked whether the Enforcement Bureau chief had attended the Super Bowl as part of the FCC presence there to address interference.

“We are still in a deliberative stage,” Commissioner Mignon Clyburn said of the Lifeline overhaul proposal, citing concerns about people worried about mobile voice. Butterfield wants to ensure any Lifeline overhaul is not “at the expense” of potential voice service. Pai mentioned it would be “helpful” for Congress to update the Telephone Consumer Protection Act, given questions surrounding what an auto-dialer is. He also slammed a budget provision last year that enabled some types of robocalls -- for purposes of debt collection -- over others.