Over the past month, U.S. House and Senate Republicans have launched a series of investigations into the Federal Communications Commission's independence in crafting strong net neutrality rules, accusing President Obama of improper influence over the FCC's rulemaking.
Rep. Jason Chaffetz (R-Utah), the chairman of the House Committee on Oversight and Government Reform, also expressed disappointment earlier this week that the FCC had "failed to establish the appearance [that] this rulemaking is independent, fair and transparent." These complaints stem from Obama's statement in November 2014 calling on the FCC to protect the open Internet through rules to prohibit Internet service providers (ISPs) from blocking access or prioritizing certain traffic over the "last mile" connection between consumers and ISPs.
These claims that the administration strong-armed the FCC in its rulemaking are offensive to the millions of Americans who have helped shape the FCC's order by participating in the rulemaking process.
The FCC's net neutrality rulemaking has been a watershed moment in public participation in federal rulemaking. My office, along with every other congressional office, heard from thousands of constituents in the form of letters, emails, and calls on the subject of protecting the open Internet. Many of these constituents were also among the 4 million Americans who commented on the proposed rule and specifically called upon Chairman Wheeler to reject Internet "fast lanes" and to issue a strong rule to protect the open Internet, representing the largest public response to any request for public comment in a federal rulemaking in history.
Nearly every House Republican has voted twice against FCC independence during this Congress alone.
As two of its first acts of the new Congress, Republicans voted in overwhelming support of removing the FCC's independence through H.R. 185, the Regulatory Accountability Act, and H.R. 50, the Unfunded Mandates Information and Transparency Act of 2015, passing each along party lines. Each of these bills would expand the role of the Office of Information and Regulatory Affairs (OIRA) within the White House Office Management and Budget (OMB)--which has the express purpose of ensuring that a new regulation "promotes the President's policy priorities"--in all federal rulemaking, thereby eviscerating the administrative independence of the agency and their rulemaking. Although there are several qualities that qualify an agency as "independent," the most important quality of an independent agency is that it isn't subject to the centralized review of rulemaking by the White House through OIRA. It is beyond disingenuous and hypocritical to pass legislation that erodes the independence of the FCC while simultaneously attacking the White House for undue influence simply for issuing a statement in support of an open Internet.
Republican claims of executive overreach are also wrong.
Under the past four administrations, both Republican and Democratic presidents have participated during various points of the FCC's rulemaking process. As Public Knowledge has already documented, the Reagan, George H.W., Clinton, George W. Bush Administrations have each expressed views during FCC policy. The most notorious example of this occurred under President Reagan, whose statements caused the FCC to reverse its course on an issue. In the case of Obama's statement, the president carefully noted that the "FCC is an independent agency, and ultimately this decision is theirs alone." Furthermore, there are specific procedures in place under the Code of Federal Regulations that apply to communications between the FCC, other agencies, and the White House for the express purpose of information gathering.
The federal rulemaking process is more transparent, responsive, and nonpartisan than congressional solutions to net neutrality or ad hoc litigation.
The FCC holds open meetings and keeps a publicly-available record of every presentation to the FCC or its staff--referred to as an ex parte presentation--that concerns an active rulemaking, with narrow exception. Comments from both stakeholders and the public are freely available on the FCC's website.
The legislative process, in stark contrast, is far less transparent. Although congressional hearings are open and a part of the public record, private congressional meetings are not open to public scrutiny, legislative deliberations often occur outside of the public record, and the rules for consideration of bills on the House and Senate Floor are typically structured in a way that prevents open amendment by members.
The FCC's rulemaking process has also been far more democratic than litigating net neutrality through antitrust law, or under any other legal theory, on an ad hoc basis. In a hearing held by the Senate Judiciary Committee last September on "Why Net Neutrality Matters," Nuala O'Connor, president of the Center for Democracy & Technology, testified that rulemaking allows for a more meaningful democratic process than litigation. O'Connor contrasted the FCC's process, which has allowed for ample public participation, with Microsoft v. Netscape, an antitrust lawsuit that cost millions in legal fees and only represented the views of private parties. "No small inventor could have engaged in that fight," O'Connor concluded.
The FCC is also much more nimble than Congress in responding to emerging issues, particularly in the context of changing technology.
On January 14, 2014, the U.S. Court of Appeals for the D.C. Circuit vacated the portions of the FCC's 2010 Open Internet Order that prohibited network blocking and unreasonable discrimination. By May 15, 2014, the FCC issued a notice of proposed rulemaking to ensure an open Internet, and, less than a year later, the FCC is expected to finalize this rulemaking process. In contrast, it took Congress ten years to pass the Telecommunications Act of 1996. Although there is wide agreement that this statute is in dire need of an update, the process for updating the law could also take as long as a decade.
The time for strong net neutrality rules is now.
Americans overwhelmingly support strong net neutrality rules, and the entire Internet ecosystem--consumers, content providers, and ISPs alike--stands to benefit from strong, bright-line rules that encourage the virtuous cycle of domestic capital investment, innovation and competition through an open Internet.
I strongly support the Commission's efforts to ensure this virtuous cycle of innovation and competition by issuing strong rules to protect the open Internet, and I call on my Republican colleagues to stop playing games. The stakes are too high for anything less.