As the FCC geared up for what is anticipated to be a partisan 3-2 vote on rules that would subject broadband Internet services to Title II regulation, Republican leaders in both the House and Senate launched investigations into the development of the draft FCC order and the influence of the Obama Administration over the FCC’s Title II plan.
In preparation for the scheduled FCC ruling on February 26, FCC Chairman Tom Wheeler circulated a draft order among the agency’s commissioners last week that mandates Title II regulation of both fixed and wireless broadband Internet service providers (ISPs), in an effort to promote net neutrality and the openness of Internet networks. Wheeler’s plan to subject broadband to Title II common carrier regulation corresponds with a November speech in which President Obama urged the FCC to “reclassify consumer broadband service under Title II . . . while at the same time forbearing from rate regulation and other provisions less relevant to broadband services.” Prior to Obama’s speech, Wheeler had floated a proposed “hybrid” approach to net neutrality that derived regulatory authority from both Title II and Section 706 of the 1996 Telecommunications Act. In circulating the draft order, however, Wheeler acknowledged that his views on Title II had evolved out of increasing concern that application of standards of “commercial reasonableness” under Section 706 would benefit ISPs and not consumers. As such, the “light touch” Title II approach outlined by Wheeler in the draft order would measure ISP behavior against “just and reasonable” standards that are typically applied to common carriers.
On the heels of Wheeler’s announcement, House Oversight and Government Reform Committee Chairman Jason Chaffetz (R-UT) delivered a letter to Wheeler requesting copies of all documents and communications between the FCC and the White House and copies of all internal FCC discussions on grounds “that views expressed by the White House potentially had an improper influence on the development of the draft Open Internet Order.” That letter was followed by a similar request by Senate Homeland Security and Governmental Affairs Chairman Ron Johnson (R-WI), who confirmed the launch of an investigative panel on Monday to review those allegations. Setting a reply deadline of February 23, Johnson wrote, “since the FCC is an independent agency that derives its authority from Congress . . . it is highly concerning that the White House would seek to take on this level of involvement in the regulatory process of the FCC.”
Neither Wheeler nor the White House responded to requests for comment. During a televised C-Span interview, however, FCC Special Counsel Gigi Sohn rejected allegations of undue influence, asserting: “I think what the president’s statement did was rather than force the chairman’s hand was give him cover to do something that he was already thinking of doing.”