Congressional Investigation of FCC Spells Trouble for Net Neutrality

Did the FCC chairman change his mind about Title II on his own, or did he capitulate to White House demands to avoid the disgrace of losing his chairmanship? A shocking investigative report by The Wall Street Journal suggests its the latter, and has prompted a pivotal Congressional investigation.

On Friday, the House Oversight and Government Reform Committee initiated an investigation of the Federal Communications Commission (FCC) to determine whether the views expressed by the White House potentially had an improper influence on the development of draft net neutrality rules. A letter from the Committee’s Chairman, [mc_name name=’Rep. Jason Chaffetz (R-UT)’ chamber=’house’ mcid=’C001076′ ], to FCC Chairman Tom Wheeler raised concerns about the independence of the agency based on a shocking investigative report by The Wall Street Journal.

The report indicates that the Imperial President improperly influenced Chairman Wheeler’s decision on net neutrality. If that proves to be true, it would provide a reviewing court with grounds to overturn the FCC’s decision as arbitrary and capricious. See DCP Farms v. Neuter, 957 F.2d 1183 (5th Cir. 1992).

As an independent agency, the Federal Communications Commission (FCC) rests on a precarious constitutional precipice. Congress relies on independent agencies to oversee areas that involve substantial economic and technical expertise. Congress entrusts independent agencies with extraordinary power, because their experts are expected to act independently of the political will of the executive branch. There is nothing more dangerous to a free society than executive control of mass media communications networks.

Historically, Democratic representatives in Congress have been the most vigilant in ensuring that the White House refrains from improperly influencing decisions at the FCC. [mc_name name=’Rep. John Dingell (D-MI)’ chamber=’house’ mcid=’D000355′ ] (D-MI) launched a congressional investigation after the press reported that President Reagan had met with former FCC Chairman Mark Fowler to discuss the agency’s tentative conclusion to relax a rule governing television finance and syndication. See Merrill Brown, FCC Chief Called to Oval Office, Washington Post (Oct. 4, 1983). It was well known that Reagan opposed relaxing the rule, and after the meeting, “suddenly there were unofficial reports of some ‘reassessing’ going on over at the FCC.” Editorial Board, Film on TV–and the No. 1 Watcher, The Washington Post (Oct. 21, 1983).

Sen. Daniel P. Moynihan (D-NY) urged President Reagan to state publicly that he would neither express a view nor intervene in the FCC’s decision. Merrill Brown, Reagan Urged To Stay Out Of TV Fight, The Washington Post (Oct. 5, 1983). “I believe it is imperative for the integrity of all regulatory processes that the president unequivocally declare that he will express no view on the matter and that he will do nothing to intervene in the work of the FCC,” he said. Id. The Editorial Board at the Washington Post wrote, “The danger lies in the kind of chilling signal a certain kind of presidential participation might send to all regulatory agencies about the possible fragility of their independence.” Film on TV–and the No. 1 Watcher (Oct. 21, 1983).

A White House official “insisted that Reagan did not take a position on the issue at the meeting,” and that it was “more accurate to say Reagan was briefed” by the FCC. Id. A spokesman for Mr. Fowler also maintained that “no attempt was made to tell the F.C.C. how the case should be decided.” See David Burnham, Reagan Role in F.C.C. Case Assailed, The New York Times (Feb. 4, 1984). The FCC nevertheless decided to postpone making a decision in the matter indefinitely. Id.

The congressional investigative report ultimately concluded that President Reagan had “acted improperly and undermined the fairness and integrity” of the FCC because the meeting was not recorded in the record. Id. “If Presidential contacts are permitted to occur in secrecy – and remain a secret – public participation in the rule-making would be reduced to a sham and judicial review of such a proceeding would be seriously impaired.” Id.

The facts surrounding the White House’s involvement in the FCC’s net neutrality proceeding appear to be far worse than the single meeting between President Reagan and Mr. Fowler. The Wall Street Journal report reveals a Machiavellian White House plot to thwart Chairman Wheeler’s efforts to reach a compromise on net neutrality. Two White House aides secretly acted “like a parallel version of the FCC itself” for months while they built a case against Chairman Wheeler’s net neutrality plans.

The White House aides were not subject to the same transparency and public filing requirements as the FCC, however, and told participants in their secret meetings “not to discuss the process openly.”

The aides also lacked the FCC’s economic and engineering expertise. Though one aide has communications policy experience, the other was a former State Department analyst with a doctorate in international relations. According to the WSJ, the aides didn’t need any substantive expertise, because the White House adopted their plan based on its potential “to help define the president’s legacy.”

The President’s announcement of his own net neutrality plan “blindsided officials at the FCC,” sweeping aside “months of work by Mr. Wheeler toward a compromise.” Though Chairman Wheeler publicly maintains that he changed his mind on his own, the timing of his sudden reversal belies this pat explanation.

The facts suggest the President forced Mr. Wheeler to make a Hobson’s choice: He could accede to the President’s demands or suffer the disgrace of being removed from the chairmanship so that another commissioner could implement the President’s plan.

Section 154 of the Communications Act authorizes the President to appoint five commissioners to the FCC “by and with the advice and consent of the Senate.” It does not, however, require the Senate’s consent for the President to designate one of the five commissioners as chairman, which implies that Senate consent is not necessary to remove an FCC chairman either. If an FCC chairman decides to buck the White House, the President is free to designate another commissioner as chairman with the stroke of pen — one who is willing to agree with the President.

If the White House even hinted at this possibility, it would provide a reviewing court with grounds to overturn the FCC’s decision as arbitrary and capricious and contrary to law.