News from the FCC Oversight Hearing

The Senate Commerce Committee convened a Federal Communications Commission oversight hearing including each of the five FCC commissioners. A good time was had by all.

In his opening statement Committee Chairman John Thune (R-SD) noted that the FCC has not been reauthorized by Congress in 25 years “making it the oldest expired authorization within the Commerce Committee’s expansive jurisdiction.” He announced that he will introduce the FCC Reauthorization Act of 2016, and he intends for the committee to mark up the bill in the coming weeks.

Chairman Thune also noted his support for current FCC Commissioner Jessica Rosenworcel who has been nominated for a new term on the FCC. The Hill reports that there are multiple holds on the renomination. Asked about who placed the holds Chairman Thune said, "I have an idea, there are a couple of them, but I probably, that's kind of one of those things you're not supposed to know. I think that my staff probably knows but I'm not certain, so I don't want to throw anybody under the bus." He said that disagreement with the FCC's net neutrality order might be "one issue" holding up her nomination, but he noted that there were many issues pending before the FCC that some lawmakers might take issue with. Chairman Thune also said that if FCC Chairman Tom Wheeler publicly committed to leaving his post in January (he declined to do so at the hearing), it could loosen some of the holds on her nomination.

Ranking Member Bill Nelson said, “We need Commissioner Rosenworcel re-confirmed to the commission as soon as possible. At the end of the 113th Congress, we had one Republican FCC Commissioner – Mike O’Rielly – awaiting confirmation. Democrats agreed to confirm O’Rielly’s nomination without pairing him with any other nominee in exchange for a promise that Republicans would confirm Democrat Jessica Rosenworcel quickly in the new Congress. Senators McConnell promised Senator Reid and then-Chairman Rockefeller that they would move the Rosenworcel nomination without delay in the new Congress if Democrats agreed to move Commissioner O’Rielly’s nomination. Commissioner Rosenworcel’s nomination is now on the executive calendar. Chairman Thune, I know you are working with Leader McConnell to make this happen. We do not want lose her leadership and thoughtful approach to the crucial issues the FCC is facing.”

A disagreement between FCC Chairman Tom Wheeler and Commissioner Ajit Pai over network neutrality become heated. A question from Sen. Ron Johnson (R-WI) over whether the rules had hurt investments in Internet networks sparked a testy exchange. Commissioner Pai claimed that investment slowed down in 2015 for major broadband providers and smaller ISPs. But Chairman Wheeler directly contested that claim. “With all due respect to my colleague, what he has just portrayed as facts are not,” Wheeler responded. “Investment is up... fiber is up 13 percent over last year. Usage of the Internet is up and that has driven what you want to be up, which is increased revenue per subscriber for the Internet companies in the last year since the Open Internet Order took place.” Pai continued to criticize the FCC's broadband policies. “It’s no accident the regulatory infrastructure we have built is now depressing broadband investment," Pai told the committee. But Wheeler insisted that was not true. “We are not seeing a decline in broadband infrastructure investment," he responded. “You can say it and say it and say it but it doesn’t make it a fact.”

Chairman Wheeler also vigorously defended the process by which the FCC reached its decision to reclassify Internet access as a Title II common carrier service. Sen Johnson asked Wheeler whether he was aware of some of the staff's concerns about a "thin record" for supporting the Title II move, which was detailed in the report. Chairman Wheeler said he hoped the lawyers were "constantly second-guessing each other and me." He said there was fulsome debate and discussion. Asked why he had prepared a public notice to beef up the record, but did not pull the trigger, Wheeler said that the FCC had hit pause for the purpose of "enriching the record," and that was because the FCC knew "the Big Dogs are going to sue" and wanted to make sure "all the i's were dotted and the t's crossed." Wheeler said the FCC had not circumvented the ex parte notification requirement about communications with White House staffers. He conceded there had been meetings and e-mails, but said that the only time an ex parte was required was when there was "substantial significance" that was intended to affect the outcome of the decision. Sen Johnson said that the FCC turned on a dime after the President came out in favor of Title II, so they appeared to be significant conversations. Wheeler pointed out the White House had filed an ex parte in connection with the President's statement. During his questioning, Sen Ed Markey (D-MA) followed up, giving Wheeler a chance to point out that communications between the White House and independent agencies are not unusual—"the White House, Congress, and everybody," Wheeler said—and that, in fact, other Presidents have been known to contact FCC chairs, pointing to a meeting between former FCC Chairman Mark Fowler and President Ronald Reagan.

Additional news from the hearing:
Chairman Wheeler signaled that the FCC's proposal on applying oversight to broadband consumer privacy could come as early as this month (March 2016).
Chairman Wheeler said that operators' programming stream will remain protected under a new proposal concerning set-top boxes.
Wheeler said the FCC would make "special efforts" to accommodate any LPTVs displaced in the coming repacking of TV stations after the incentive auctions.
Statement (Chairman Thune)