FCC's Wheeler Says Republicans Are Trying To Cripple FCC

Tom Wheeler

Federal Communications Commission Chairman Tom Wheeler told Republicans in Congress Friday that their proposals to "improve" the FCC's decision-making process would instead make it nearly impossible to get anything done.

In a hearing titled "FCC Reauthorization: Improving Commission Transparency," the House Commerce Committee's Communications and Technology subcommittee brought in Wheeler to discuss adding new requirements to the commission's rulemaking process, according to
arstechnica.com.

 It was the latest in a series of hearings that Republicans have called to chastise Wheeler for decisions opposed by Internet service providers, especially the ruling to reclassify the providers as common carriers and enforce net neutrality rules.

Republicans have proposed wiping out the new net neutrality rules and an FCC decision to boost municipal broadband, but Friday's hearing focused on changes to prevent future decisions that Republicans don't like.

In 17 pages of prepared testimony, Wheeler explained how the proposed requirements would let opponents of almost any measure prevent it from being enacted. He said the Republicans' proposals would hamstring not just Democratic-majority commissions like the current one but also Republican-led commissions.

The FCC issued a net neutrality Notice of Proposed Rulemaking in May 2014, setting off a months-long discussion period in which the commission received about four million comments from the public. Finally, after taking public comments into consideration, the FCC voted on its rules in February of this year. The final rules were not released until after that vote, as is standard in such proceedings.

Republicans want to change that with a bill put forth by Rep. Adam Kinzinger (R-IL) to require the publication of draft rulemakings, orders, and reports when they are circulated to commissioners, which occurs three weeks before a vote.

But Wheeler explained that the process—designed by Congress in the first place—is structured as it is for good reason:

"Releasing the text of a draft order in advance of a Commission vote effectively re-opens the comment period. That’s because, under judicial precedent, the Commission must "respond in a reasoned manner to those comments that raise significant problems. It won’t take much for a legion of lawyers to pore over the text of an order and file comments arguing that new issues are raised by its paragraphs, sentences, words, perhaps even punctuation. This means the Commission would be faced with litigation risk unless it addressed the comments received on the draft order. This would result in the production of a new draft order, which in turn could lead to another public comment period—and another if a new draft order were released in response to subsequent public comment. The end result: the threat of a never-ending story that prevents the Commission from acting—or forces it to accept undue legal risk of reversal if it ever does. This potential for extreme delay undermines the Commission’s efficiency without enhancing its expertise. And it does so at the cost of the consumers and businesses that rely on Commission decisions."