GOP watchdogs smell ‘smoke’ with FCC probe

Congressional investigators say they won’t hesitate to ratchet up their investigation of the Federal Communications Commission’s development of net neutrality rules.

House and Senate committees sent letters this month requesting documents, communications and visitors logs from the independent agency to sniff out whether the White House exerted improper influence on the rulemaking process.

During an interview, House Oversight Committee Chairman Jason Chaffetz (R-Utah) did not rule out holding hearings or calling White House officials to testify before his panel, if that is where the investigation leads.

“I think there’s enough smoke here that it’s really worth looking at,” he told The Hill. “And we’ll let the facts dictate where we go. But we are going to look at it with a skeptical eye and see what the documents demonstrate.”

At another point, he said if the FCC provides documents that are “shallow and incomplete, we will ratchet it up in a hurry.”

Republicans have been relentless in their accusations that FCC Chairman Tom Wheeler caved to pressure from the White House to reclassify broadband Internet similar to traditional telephones. The move is part of an effort to enforce rules barring Internet service providers from prioritizing any bit of Internet traffic above another.

Republicans have also accused President Obama of bullying the independent agency by releasing a YouTube video pushing the FCC to take up reclassification. Republican FCC commissioner Ajit Pai has even taken to referring to the regulations as “Obama’s plan.”

However, the letters sent this month by the House Oversight Committee and the Senate Governmental Affairs Committee are looking for evidence that the pressure hit a level that was  “inappropriate” or “undue.”

Chaffetz is not concerned with Obama’s public recommendations. He wants to know if there were direct staff-level discussions between the administration and the FCC that have not been disclosed. Even direct pressure from a White House surrogate could cross the boundary, he said.

“And that may have gone via another person or two,” he said. “But if it had the intention of unduly influencing what is supposed to be an independent agency, I have a problem with that.”

Chaffetz’s committee put a Friday deadline on the FCC’s production of documents. The Senate committee set a deadline of Feb. 23. Since it is still early, he was quick to say no accusations are yet being made

Those deadlines come just days before the FCC votes on its proposal. The agency has given no indication to either committee whether it will respond.

The FCC has not responded to a number of requests for comment from The Hill, except to say it is reviewing the letters.

The lack of initial response is not out of the ordinary, Chaffetz said. He will give the agency time. But the upcoming vote increases the importance. He said the request was reasonable, compared to others it sends out.

“Time is of the essence here. We don’t have time to mess around. A subpoena is always an option,” he said when asked if that could be a next step. “I hope it doesn’t come to that, but it is a tool that we have at our disposal. I would rather not have to use it.”

Advocates of the strong rules, like Public Knowledge, disagree that there is any appearance of impropriety.

“In this case there is really not evidence of wrongdoing here, but there are attempts to kind of draw attention to it and say maybe if you repeat the scandal enough, one will generate out of thin air,” said Michael Weinberg, a vice president of the group.

Weinberg was clarifying his colleague Harold Feld’s previous comparison of the net neutrality investigation to those of Benghazi. Chaffetz called the comparison “offensive” and “barely worthy of comment.”

Public Knowledge released a fact sheet saying presidents are free to weigh in on the issues, make public statements and have private conversations with the commission just like other members of the public.

The lobbying would only become illegal, the group said, if the administration did not file notices of the meetings in the public record, officially know as “ex parte” notices that are published in the FCC’s database.

An independent agency, the group noted, simply means a president is not able to fire commissioners for policy disagreements, which is meant to insulate it from the political process.

Even one Republican member of Congress, who spoke without attribution, said the White House moved did not appear to rise to the level of “undue” influence.

“No, they have due influence,” the member said. “They have a chairman, they have a majority and they’re using it.”

Investigators’ concerns about undue influence were piqued this month by a Wall Street Journal report chronicling how Obama came to make his recommendations. The report details how two White House staffers met with numerous stakeholders when developing the president’s recommendations. The process was supposed to remain secret and the report described it as something resembling a “parallel version” of the FCC.

It is widely believed Obama’s public call in November for reclassification had an effect on the commission. The recommendations were made in a letter accompanying a YouTube video on Nov. 10, which has been viewed more than 850,000 times since then.

Wheeler’s new plan for reclassificaiton is a departure from his previous draft order last year. But FCC officials say it was the millions of public comments on the issue that first swayed him. As far back as October, they point out, Wheeler was discussing a hybrid approach which would partially rely on reclassification.

Gigi Sohn, a special counsel for Wheeler, has said Obama’s statement actually gave Wheeler cover to charge toward a plan he was already contemplating.

In an interview earlier this month, she compared Wheeler’s evolution to that of Obama’s on gay marriage. Her words, unfortunately, came a few days before reports that Obama might not have been entirely forthright with voters about his evolution on the issue.

“I find the fascination with the chairman’s evolution kind of interesting, because nobody talks about how the president evolved on gay marriage anymore, right?” Sohn said. “It’s not important where he was. It’s important where he is now.”