Regulating the Internet: How the White House Bowled Over FCC Independence

This report details how the Federal Communications Commission arrived at its decision to regulate the Internet like a public utility only after the President Barack Obama called for such a heavy-handed regime and how, in the process, career FCC staff raised serious administrative law questions about the shift. “This investigation has convinced me that the White House overrode the FCC’s decision-making apparatus,” said Senate Homeland Security and Governmental Affairs Committee Chairman Ron Johnson (R-WI). “It is concerning that an independent agency like the FCC could be so unduly influenced by the White House, particularly on an issue that touches the lives of so many Americans and has such a significant impact on a critical sector of the United States economy.” Details of the report:

• Prior to the White House’s announcement in support of Title II reclassification, the career, professional staff at the FCC worked over a weekend to deliver FCC Chairman Tom Wheeler a draft Open Internet Order, adopting a “hybrid approach,” to be considered on the FCC’s December 2014 Open Meeting. Immediately after President Obama's statement, FCC staff expressed confusion as edits were suddenly delayed and the rapid timetable for completing the draft Open Internet Order was “paused.” At the conclusion of the pause, Chairman Wheeler instructed FCC staff to change course and draft an order that would follow the President’s proposal of a Title II reclassification.
• The FCC staff raised concerns about the agency following proper notice-and-comment procedure, as required under the Administrative Procedure Act. Specifically, the FCC’s career professional staff advised that the record to support Title II reclassification for both fixed and wireless broadband was thin and needed to be bolstered. Despite this recommendation, the FCC chose not to seek additional public comment, and proceeded with the president’s preferred policy outcome.
• Over the course of the committee’s investigation, the FCC refused to provide key responsive documents. Moreover, in the e-mails that were provided to the committee, it appears that there was an attempt by some to thwart transparency and avoid ex parte filings.

FCC Commissioner Ajit Pai said, "The report released yesterday by Chairman Ron Johnson of the Senate Committee on Homeland Security and Government Affairs paints a devastating portrait of the process that led to the adoption of President Obama’s plan to regulate the Internet on February 26, 2015...Whether you support or oppose Internet regulation, this has been a sad chapter in the history of the FCC. Moving forward, the Commission must recommit itself to being a truly independent agency that makes decisions based on the facts and the law, not on the whims of any White House."

FCC Commissioner Michael O'Rielly said, “I appreciate the work of Chairman Johnson and the Senate Homeland Security and Governmental Affairs Committee to shed additional light on the details of the Commission’s abrupt about-face on Title II. It crystallizes what most people knew in their hearts: the facts and process were thrown overboard in order to capitulate to the improper influence of the Administration. The final order is a discredit to the agency’s independence and the rule of law. Whether through the courts or a future Commission, this illegitimate net neutrality regime must go.”