The White House exerted undue influence on the Federal Communications Commission (FCC) in the drafting of net neutrality rules, causing the agency to overlook potential violations of public notice requirements, according to a report from Senate Republicans.
The Senate Homeland Security and Government Affairs Committee accused the FCC of thwarting some aspects of its investigation and not publicly disclosing meetings and communications with the White House.
“It is concerning that an independent agency like the FCC could be so unduly influenced by the White House, particularly on an issue that touches the lives of so many Americans and has such a significant impact on a critical sector of the United States economy,” the report says.
{mosads}The 30-page report, prompted by a Wall Street Journal article, comes nearly a year after the FCC passed strong regulations that reclassified Internet service as a common carrier under Title II of the Communications Act.
The rules are strongly opposed by Republicans and are being challenged in court by Internet service providers. The FCC has fought accusations that it pivoted away from less stringent rules after pressure from the White House.
Culling together emails from late 2014, the Senate committee — led by Sen. Ron Johnson (R-Wis.) — concluded that the FCC was heading in one direction to draft a hybrid plan, which would use strong authority to regulate the back end of the Internet but not for the consumer-facing side.
But after private meetings with White House staff and a public statement from the president urging strong rules under Title II, the FCC paused its work and then shifted direction. The report concluded the shift caught many career agency officials off guard and ultimately led the commission to push back a December 2014 vote it was planning.
The FCC continues to say its pivot was due to the millions of public comments in favor of stronger rules.
“It’s no secret that four million Americans, including the President, urged the FCC to protect a free and open Internet,” said FCC press secretary Kim Hart. “The FCC ran a transparent and robust rulemaking process, which resulted in strong rules to ensure the Internet remains a platform for innovation, expression and economic growth.”
The White House is not forbidden from lobbying an independent agency, but the report cites a Justice Department memo that urges it to avoid the appearance of influence.
More seriously, the report says the late shift might have caused the agency to violate Administrative Procedure Act requirements, which govern how much notice the public needs before regulations are issued.
“Here, due to swift change in course, FCC career staff worried that the agency could be violating federal law,” the report says.
According to emails, the FCC considered issuing another public notice to seek further comment on some of the issues that were not comprehensively addressed, including a decision to apply strict regulations to mobile broadband.
However, that notice was never issued. Instead, the FCC tried to “beef up” the record with a series of meeting with net neutrality supporters. The notice problem is one of a number of issues at play in a high-profile lawsuit challenging the rules, which is expected to be decided soon.
The report could be a topic of conversation at an FCC oversight hearing this week in front of the separate Senate Commerce Committee, where all five commissioners are expected to testify.