The Senate Homeland Security and Governmental Affairs Committee marked the first anniversary of the FCC's 2015 Open Internet Order with the issuance of a majority staff report on Monday pointing to "disproportionate" White House influence over the FCC's decision to reclassify broadband as a telecommunications service pursuant to the Title II of the 1934 Communications Act. Capping a year-long investigation, the report describes FCC actions in the wake of President Obama's November 10, 2014 statement which urged the FCC to reclassify broadband as a telecommunications service to which Title II common carrier rules could be applied.
Prior to Obama's pronouncement, FCC Chairman Tom Wheeler had advocated a hybrid approach to net neutrality. That solution would have combined elements of Section 706 of the 1996 Telecommunications Act-which directs the FCC to promote deployment of advanced telecommunications capabilities-with Title II. By early November 2014, Wheeler had instructed FCC staff members to draft an order in accordance with the hybrid approach and prepare that item for a vote at the agency's December 2014 open meeting. Internal FCC e-mails obtained by the committee, however, depict a shift in the FCC's strategy from November 9-19, 2014, during which Wheeler directed a "pause" in the staff's "rapid timetable for completing the draft Open Internet order." By the end of that period, FCC staffers were redirected to draft an order reflecting Obama's recommendations for Title II reclassification.
The report further alleges that the FCC had planned to issue a public notice on or around November 17, 2014 to request further comment on "nine areas of concern," but instead decided to fill gaps in the record by conducting meetings "with certain outside groups to support a rulemaking process for Title II reclassification." At the same time, the report claims that Wheeler was informed of Obama's preference for a Title II track during a November 6, 2014 meeting with Jeffrey Zients, the director of the White House's National Economic Council. Asserting, "had the White House not inserted itself into the formal FCC rulemaking process, it is probable that the [FCC] open meeting in December would have included the [Open Internet] Order," the report thus declared it "highly concerning that an independent agency like the FCC could be so unduly influenced by the White House."
An FCC spokeswoman countered, however, that the agency "ran a transparent and robust rulemaking process which resulted in strong rules to ensure the Internet remains a platform for innovation," maintaining: "it's no secret that four million Americans, including the President, urged the FCC to protect a free and open Internet." As he characterized the committee report as "a smoking gun with no smoke and no gun," Free Press Policy Director Matt Wood quipped: "the fact that President Obama supports net neutrality-and has for years-should come as a surprise to no one."