Did the White House Influence the FCC's Net Neutrality Proposal? If so, how?

From CS378H Public Policy and the Digitally Native Technologist
Jump to: navigation, search

The Evolution of Wheeler's Proposals

FCC Chairman Tom Wheeler has made a series of proposals regarding how the FCC will define and enforce net neutrality. Earlier proposals were relatively weak, lacking the strong and enforceable net neutrality protections desired by the Obama administration and allowing for the paid prioritization agreements desired by cable companies. Over the course of nine months, as President Obama and his staff publicly voiced their feelings on net neutrality, Chairman Wheeler's proposals slowly began resembling the Title II reclassification policy advocated by the White House. Recently, Chairman Wheeler released a proposal calling for bright-line net neutrality rules and the reclassification of Internet service providers under Title II of the Telecommunications Act. This is both exactly what President Obama called for late last year, and what Chairman Wheeler was originally opposed to doing. This curious evolution in the opinion of Chairman Wheeler, the head of what is supposed to be an independent agency, has led some to question whether the White House influenced Chairman Wheeler's decision making, and if so, how. While it cannot be said for certain if the White House had a direct influence on Chairman Wheeler's proposal, one can certainly make the case that President Obama's actions last year may have influenced the politics inside the FCC, and, in turn, Chairman Wheeler's proposal.

Legal Questions

Can White House Officials Contact FCC Commissioners?

It is legal for White House officials to contact FCC commissioners and advocate for positions on policies that the FCC are considering. The Deputy Assistant Attorney General under President George H. W. Bush said this on the matter when White House staff asked him a similar question in 1991:

We believe it is clearly permissible, as a matter of general administrative law, for White House officials, including senior members from the Council of Economic Advisors and officials from the Office of the Vice President, Office of Management and Budget, and Office of White House Counsel, to contact FCC Commissioners to advocate a position on this rulemaking. [1]

The counsel advised the White House staff that the legal basis for this decision was derived from Sierra Club v. Costle, a case in which the legality of an EPA policy was questioned due to the involvement of White House staff and the President in its creation. In Sierra Club, the Court stated that the "the authority of the President to control and supervise executive policymaking is derived from the Constitution," [1] and that:

Our form of government simply could not function effectively or rationally if key executive policymakers were isolated from each other and from the Chief Executive. Single mission agencies do not always have the answers to complex regulatory problems. [1]

The EPA, like the FCC, is an independent agency. The Court's ruling thus also makes it legal for White House staff to contact FCC commissioners. The counsel does go on to mention that communications between FCC Commissioners and White House staff that influence FCC policy must be documented in the FCC's rulemaking record, according to FCC rules.

Can FCC Commissioners Solicit Advice from the White House?

The Deputy Assistant Attorney General under President George H. W. Bush also addressed this question in a brief to White House staff. The counsel states that this is not only legal, but it is also not required to be disclosed:

Finally, you have asked whether it would be permissible for an FCC Commissioner to solicit the views of White House officials and whether any such solicitation would be subject to the FCC disclosure requirements. We are unaware of any statutory or regulatory provisions that would prohibit such a solicitation or require that it be included in the rulemaking record. [1]

When Would White House Influence be Illegal?

White House influence would be illegal if the White House failed to file notices of meetings with the FCC in the public records database maintained by the FCC. [2] There does not seem to be any other legal basis for the notion of "improper influence". Any other notion of "improper influence" would seem to be based on political concerns about how much influence the White House should have over independent agencies.

White House Influence

Direct Influence

There is currently no evidence that White House staff met or corresponded directly with FCC officials for the purpose of influencing the FCC's net neutrality proposal. Evidence may be released soon, however. A probe led by Representative Jason Chaffetz, chairman of the House Oversight and Government Reform Committee, recently requested that Chairman Wheeler release all documents and correspondence between the FCC and White House officials, as well as any internal discussions that occurred at the FCC. When Chairman Wheeler releases this information, more will be known about how the White House influenced the FCC's decision. [3]

Obama's Video Address

It is undeniable that the White House attempted to exert some level of influence over the FCC last year. In a video address late last year, President Obama outlined his views on the importance of net neutrality and explicitly asked the FCC to enforce net neutrality by reclassifying Internet service under Title II:

That's why I'm laying out a plan to keep the Internet free and open. And that's why I'm urging the FCC to do everything they can to protect net neutrality for everyone. They should make it clear that whether you use a computer, phone, or tablet, Internet providers have a legal obligation not to block or limit your access to a web site. [...]. To put these protections in place, I'm asking the FCC to reclassify Internet service under Title II of a law known as the Telecommunications Act. [4]

Chairman Wheeler's recent proposal does exactly what the President asked for in his video address. Wheeler's proposal reclassifies both the front and back end of the Internet, as well as mobile data networks, under Title II. While President Obama does go on to mention in his video address that the FCC is an independent agency, he had to have known that his statement would have had significant effects on the FCC.

The Influence of Obama's Video Address

FCC commissioners often go on to become lobbyists or serve other roles in government when their terms are up. Fifteen of the last twenty-six FCC commissioners either had a background in politics or lobbying prior to joining the FCC, or pursued a career in politics or lobbying after leaving the FCC. [5] Individual commissioners must thus be cognizant of the effects that their actions as commissioners may have on the future of their political careers. The FCC currently has three Democratic commissioners, Chairman Wheeler among them. President Obama's request that the FCC reclassify Internet service under Title II put the Democratic commissioners in a tough position. If Chairman Wheeler proposed net neutrality rules that were contrary to the President's wishes, the other Democratic commissioners, fearing for their future political careers in the Democratic Party, may not have voted for it. Due to this problem, Chairman Wheeler may have proposed net neutrality rules that were more in line with the President's proposed policy. This is just speculation, but it does explain why Chairman Wheeler's proposals evolved in the way that they did.

Conclusion

At this time, it is impossible to say with certainty that the White House had a direct influence on Chairman Wheeler's net neutrality proposal. Until the FCC discloses information regarding meetings and correspondence with White House officials, one cannot know for sure if there was any direct influence. It is worth mentioning that, even if there was any direct influence, such influence has been deemed legal by past White House counsel. Rumors of direct influence aside, it is clear that the political effects of the White House publicly requesting the FCC to act in a certain way may have had a strong indirect influence on the FCC.

Further Reading

FCC Commissioners with Backgrounds in Politics or Lobbying

Obama's Historical Stance on Net Neutrality

Tom Wheeler May 2014 Proposal

Wheeler's second proposal

Tom Wheeler's 3rd Proposal

Article written by a former FCC Chairman on executive influence at the FCC

References

  1. 1.0 1.1 1.2 1.3 White House Counsel's opinion on the legality of White House influence on the FCC
  2. GOP Watchdogs Smell Smoke with FCC Probe
  3. Republicans vow to fight FCC broadband proposal
  4. Obama's video address on net neutrality
  5. FCC Commissioners with Backgrounds in Politics or Lobbying