FCC chief: 'No secret instructions' from Obama on Net neutrality

FCC Chairman goes to Capitol Hill to defend how the agency established its Net neutrality rules, in the first of several scheduled congressional hearings.

Marguerite Reardon Former senior reporter
Marguerite Reardon started as a CNET News reporter in 2004, covering cellphone services, broadband, citywide Wi-Fi, the Net neutrality debate and the consolidation of the phone companies.
Marguerite Reardon
4 min read

The head of the Federal Communications Commission insisted that his agency developed its open-Internet rules free from outside influence -- including any from President Barack Obama.

FCC Chairman Tom Wheeler testifies at a House subcommittee hearing, where he was asked to defend his agency's process for developing Net neutrality rules. Screenshot by Marguerite Reardon/CNET

FCC Chairman Tom Wheeler appeared before a House subcommittee Tuesday, where he maintained his agency's independence in coming up with new rules for so-called Net neutrality. The rules ensure that broadband providers like Comcast or Verizon can't block or slow down Internet access or applications , or require payment from companies like Netflix for priority access to broadband customers.

"There were no secret instructions from the White House," Wheeler said. "I did not, as CEO of an independent agency, feel obligated to follow the president's recommendation."

Tuesday's hearing is the first time Wheeler has defended his Net neutrality rules in a public forum since the FCC released details of the regulations last week. While consumer advocates and online-services companies cheered the new rules, broadband providers and Republicans expressed concern that the regulations would hinder innovation and discourage carriers from building or upgrading their networks. The hearing gave Republicans -- who had complained about President Obama's influence and the agency's opaque process for developing the rules -- a chance to grill Wheeler.

"There could have been a lot more done to maximize transparency of this process," said Rep. Jason Chaffetz (R-Utah), chairman of the House Oversight and Government Reform Committee. Chaffetz last month launched an investigation to determine if the White House had an "improper influence" on the FCC.

During the hearing, Chaffetz also hinted that the FCC didn't do itself any favors by redacting portions of some emails the committee had requested as part of the Freedom of Information Act.

"Interactions with those who have opinions is fine," Chaffetz said. "But overly redacting emails does lead one to believe that there was more of a secret type of communication going on there, particularly given the dramatic change in [the agency's] position."

That "dramatic change" comment has to do with the FCC's decision to reclassify broadband as a so-called telecommunications service under Title II of the Communications Act of 1934. Such reclassification makes broadband service subject to the sort of regulations that govern utilities.

When Wheeler issued his initial Notice of Proposed Rulemaking for public comment in May, he suggested the FCC's new rules could use the existing -- and less stringent -- definition of broadband. But when Wheeler made his final position public in early 2015, he said he'd shifted his thinking: Reclassifying broadband under Title II would help the FCC stand up against any legal challenges it could expect from the broadband industry.

Republicans argue that Wheeler caved to pressure from the White House. On November 10, Obama issued a nearly 1,100-word statement saying there should be no toll takers between Internet users and their content. Obama said broadband service should be reclassified under Title II because it was the only way to ensure the Internet remained open to everyone.

In early January, when Wheeler spoke at the Consumer Electronics Show in Las Vegas, he said the new rules would reclassify broadband as a Title II service.

Why the switch?

What happened to elicit this change? Republicans argued that in addition to Obama's statement, the White House put pressure on Wheeler over the course of several months. They pointed to nine meetings in which Wheeler was summoned to the White House to meet with Obama aides, and another meeting on November 6 when White House economic adviser Jeff Zients visited the FCC and allegedly strong-armed Wheeler into adopting the more stringent Title II approach to regulation.

"My contention is, Jeff Zients came to you and said, 'Hey, things have changed,'" Rep. Jim Jordan (R-Ohio) said.

Wheeler defended his agency's change in position. He said that he had already been considering using Title II as a legal foundation for the new rules, even before Obama issued his statement.

"We were exploring the viability of the bifurcated approach," Wheeler said. "I had received option papers on using Title II in a manner patterned after its application to the wireless voice industry. And I had, from the outset, indicated a straight Title II was being considered."

Wheeler also said that "of course" the president's statement had influenced the final outcome of the rules. But he added that comments from 140 congressional leaders and the 4 million public comments filed at the FCC also helped shape his thinking on the issue.

"The push for Title II had been hard and continuous from Democratic members of Congress," Wheeler said. "The president's weighing in to support their position gave the whole Title II issue new prominence."

Wheeler's Capitol Hill appearance Tuesday is the first of five he will make over the next week. He'll appear before the Senate Commerce Committee on Wednesday afternoon, which is headed by Sen. John Thune (R-SD), who had been working on legislation to replace the FCC's then-proposed Net neutrality rules and strip the agency of its authority to implement Title II regulation on broadband.

Because he lacked support from Democrats, Thune largely abandoned efforts to have the legislation move forward in the Senate prior to the FCC's vote on the new rules in February. But he has indicated that he's hopeful he can work with Democrats to draft legislation that will supersede the FCC's new rules.

Sen. Al Franken (D-Minn.), who has been a strong supporter of Net neutrality for several years, says legislation is unnecessary.

This story is part of a CNET special report looking at the challenges of Net neutrality, and what rules -- if any -- are needed to fuel innovation and protect US consumers.