Republican Commissioners Ajit Pai and Mike O’Rielly have asked FCC Chairman Tom Wheeler to do what [85%] of the American people want: publish his 300+ page plan to regulate the Internet (well, actually, President Obama’s plan) and delay the vote until the public and Congress have a chance to read it. Wheeler simply blew them off in a tweet:

 

 

Wheeler also blew off the House Oversight Committee, refusing to testify at a hearing scheduled for Wednesday, the day before the FCC’s big vote. He’s failed to produce documents requested by the Commission regarding the potentially improper coordination between the White House and the FCC, which is supposed to be an independent agency.

 

Telling Congress to take a hike is one thing. But the grand prize for chutzpah goes to President Obama for his complete flip-flop on how the FCC should work.

Back in 2007, the FCC was attempting to revive a 2004 update to media ownership rules that got stuck in court. Republican FCC Chairman Kevin Martin set a vote on a proposal that differed from the FCC’s Notice of Proposed Rulemaking — just as Wheeler has, at Obama’s urging, shifted from using Section 706 to the far more draconian Title II, which creates a host of new problems not explored by the FCC’s record. Then-Senator Obama blasted the FCC’s “closed” process, and lack of analytical rigor. He even co-sponsored legislation to block Martin‘s plans.

Martin, unlike Wheeler, listened. Rather than circle the wagons, as Wheeler seems to be doing, Martin decided to publish his proposed changes to the media ownership rules and create a new four-week comment period. Here’s Obama’s 2007 letter:

I am writing regarding your proposal to move forward aggressively with modifications to existing media ownership rules…. I believe both the proposed timeline and process are irresponsible. … 30 days of public review of a specific proposed change is insufficient to assess the effect that change would have on the media marketplace or the rationale on which any such proposal is based. … Although such a proposal may pass the muster of a federal court, Congress and the public have the right to review any specific proposal and decide whether or not it constitutes sound policy. And the Commission has the responsibility to defend any new proposal in public discourse and debate.

Remember, the FCC had lost only once in court on media ownership. On net neutrality, the FCC has already lost twice. In fact, the agency has been struggling to find authority to regulate the Internet for a decade, and is now heading for a long and difficult court fight over Wheeler’s plans to “tailor” and “modernize” Title II — which makes it that much more important that the FCC not “rush” into another long court fight.

I also object to the Commission’s propensity to vet proposals through leaks to the press and lobbyists. The Government Accountability Office (GAO) issued a report in September 2007 titled, “The FCC Should Take Steps to Ensure Equal Access to Rulemaking Information.” In that report, GAO found that: “Situations where some, but not all, stakeholders know what the FCC is considering for an upcoming vote undermine fairness and transparency of the process and constitute a violation of the FCC’s rules.” The report went on to state: “This imbalance of information is not the intended result of the Communications Act and it runs contrary to the principles of transparency and equal opportunity for participation established by law and to the FCC’s own rules that govern rulemaking.”

Obama blasted Martin for refusing to make his proposal clear in a new Notice of Proposed Rulemaking — and for

Repealing the cross ownership rules and retaining the rest of our existing regulations is not a proposal that has been put out for public comment; the proper process for vetting it is not in closed door meetings with lobbyists or in selective leaks to the New York Times.

[L]ast month, at an FCC hearing on media ownership held in Chicago, I requested that the FCC put out any specific changes that would be voted on in a new notice of proposed rulemaking so that the American people have an opportunity to review it.

Finally, Obama attacked what he saw as the FCC’s lack of rigor:

While the FCC did commission two studies on minority ownership in the round of 10 studies it ordered at the beginning of 2007, both suffered from the same problem – inadequate data from which to make determinations on the status of minority media ownership or the causes for that status and ways to increase representation.

It is time to put together an independent panel, as Commissioner Adelstein has recommended, to issue a specific proposal for furthering the goal of diversity in media ownership. I object to the agency moving forward to allow greater consolidation in the media market without first fully understanding how that would limit opportunities for minority, small business, and women owned firms.

Gee, that’s funny: Republican Commissioner Ajit Pai proposed exactly the same thing for Net Neutrality last May: each Commissioner would suggest an economist and technical expert to produce independent studies. That’s precisely what Martin had the FCC do for media ownership. Democratic Commissioners got their own studies, complaining only that 60 days wasn’t enough time to digest them.

So, to summarize:

  • 2007: Media Ownership: Martin allowed all five Commissioners to produce independent studies, allowed 60 days for public comment, and was attacked by Congressional Democrats (especially Senator Obama) for not allowing more time for comment on these studies or the final proposals. Martin relented, published the revised proposal in an new NPRM, and sought public comment before a final vote.
  • 2015: Net Neutrality: Last May, Wheeler proposed a relatively moderate approach to net neutrality but refused to perform the kind of independent analysis that Martin did — or even to delay issuance of the NPRM by a month, in spite of Republican Ajit Pai and Democrat Jessica Rosenworcel’s request. In November, President Obama forced the FCC to fundamentally change course, to use Title II instead, which opens the door to new broadband taxes and to regulating interconnection, consumer privacy, etc. (Obama clearly didn’t care about the details: his speech even referred to the wrong Title II!) Republicans have asked Wheeler to do what Martin did — publish a new NPRM so the public can comment on what BarackObama.com calls “Obama’s Plan” — and Wheeler has refused.

Oh, and by the way… Congressional Republicans have proposed a legislative deal that offers to do the four main things the President said he cared about back in November without the need for Title II — and the White House has both refused to negotiate and has apparently strong-armed Congressional Democrats into doing the same.

Wheeler, for his part, promised in confirmation hearings that he’d seek “more direction” from Congress if the FCC lost again in court — which, of course, he has refused to do.

Three simple words from Wheeler could resolve this entire fight: “We need legislation.” If he told Congressional Democrats he wasn’t sure how litigation would turn out, or that the FCC can’t “modernize” or streamline Title II on its own, they would negotiate with Republicans from a position of strength: nothing will pass without Obama’s signature.

Until that happens, it doesn’t look like Democrats are remotely serious about net neutrality…

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