The Future of Broadband

The Increasing Politicization of the FCC

In the wake of the historic net-neutrality decision, an independent agency is more polarized than ever.

FCC Commissioner Ajit Pai speaks as Commissioner Mignon Clyburn(C) and FCC Chairman Tom Wheeler (R) look on during a meeting of the commissioners May 15, 2014 at the FCC in Washington, DC.
National Journal
Feb. 26, 2015, 2:52 p.m.

The Fed­er­al Com­mu­nic­a­tions Com­mis­sion is no stranger to con­tro­ver­sial is­sues—re­mem­ber the ruck­us over the Janet Jack­son Su­per Bowl half­time show? But net neut­ral­ity has taken things to a new level, and that has people won­der­ing if the agency is politi­cized bey­ond re­pair.

That hos­til­ity was on full dis­play Thursday as the com­mis­sion voted 3-2 to ap­prove sweep­ing net-neut­ral­ity reg­u­la­tions to en­sure all In­ter­net traffic is treated equally. The three Demo­crat­ic com­mis­sion­ers cel­eb­rated an ac­tion that they said would pro­tect In­ter­net free­dom, and the two Re­pub­lic­ans ac­cused their col­leagues of seiz­ing con­trol of the In­ter­net.

Also on Thursday, the Com­mis­sion voted 3-2 to strike down laws in two states re­strict­ing cit­ies from provid­ing In­ter­net ser­vice to their own res­id­ents. The Demo­crats ar­gued that the move would help more people get ac­cess to high-speed In­ter­net, while the Re­pub­lic­ans de­cried the as­sault on states’ rights.

“I do think it is more po­lar­ized than I’ve ever seen,” said Robert Mc­Dow­ell, a Re­pub­lic­an who served as an FCC com­mis­sion­er from 2006 to 2013. “Hav­ing said that, if we’re judging it purely from today, that prob­ably skews the emo­tion of the mo­ment.”

The “game-changer,” Mc­Dow­ell said, was Pres­id­ent Obama’s de­cision last Novem­ber to in­ter­vene in the net-neut­ral­ity de­bate and urge the FCC to en­act the “strongest pos­sible” rules. That state­ment turned the FCC in­to a pawn in a high-pro­file par­tis­an battle, he said.

“The pres­id­ent did not do the in­sti­tu­tion any fa­vors by do­ing that,” Mc­Dow­ell said. “It pulls the mask of in­de­pend­ence off of the agency.”

Re­pub­lic­an Com­mis­sion­er Ajit Pai, who has drawn in­creas­ing me­dia at­ten­tion as the voice fight­ing Demo­crat­ic Chair­man Tom Wheel­er on the net-neut­ral­ity ac­tion, wasted no time Thursday ty­ing the move to Obama.

“The Com­mis­sion’s de­cision to ad­opt Pres­id­ent Obama’s plan marks a mo­nu­ment­al shift to­ward gov­ern­ment con­trol of the In­ter­net,” Pai warned. “It gives the FCC the power to mi­cro­man­age vir­tu­ally every as­pect of how the In­ter­net works. It’s an over­reach that will let a Wash­ing­ton bur­eau­cracy, and not the Amer­ic­an people, de­cide the fu­ture of the on­line world.”

Earli­er this month, Pai tweeted a pic­ture of him­self hold­ing a 332-page draft of the net-neut­ral­ity or­der (in front of a framed por­trait of Obama), and held his own press con­fer­ence in the FCC’s meet­ing room, where he claimed that Wheel­er was mis­lead­ing the Amer­ic­an people about the plan’s de­tails.

Wheth­er the bad blood will spill over in­to oth­er is­sues re­mains to be seen. The FCC, cre­ated about 80 years ago to be an in­de­pend­ent and ex­pert agency for reg­u­lat­ing the com­mu­nic­a­tions in­dus­tries, has nu­mer­ous sig­ni­fic­ant is­sues to tackle in the months and years ahead. The agency must hold a com­plex mult­i­bil­lion-dol­lar air­wave auc­tion that will re­struc­ture both the TV and cel­lu­lar in­dus­tries, and over­see the trans­ition of phone net­works to di­git­al tech­no­logy. The com­mis­sion must also rule on Com­cast’s bid to buy Time Warner Cable and AT&T’s planned pur­chase of Dir­ecTV.

Ac­cord­ing to Har­old Feld, the seni­or vice pres­id­ent of Pub­lic Know­ledge and a net-neut­ral­ity ad­voc­ate, the real cul­prit be­hind the nas­ti­er tone of FCC de­bates is not Obama, but Ajit Pai.

“Pai has been a man of hy­per­bol­ic hys­ter­ics as a way of driv­ing the agenda since he got there,” Feld said, point­ing to Pai’s ad­vocacy against net neut­ral­ity and his ef­forts last year to sound the alarm about an FCC study on con­sumers’ in­form­a­tion needs. Pai called the study, which would have asked re­port­ers ques­tions about their jobs, a “threat to the First Amend­ment.” Wheel­er even­tu­ally pulled the study in the face of a con­ser­vat­ive back­lash.

“When you have a bully, it’s not like you have a prob­lem with the school yard—you have a bully,” Feld said.

For their part, the FCC com­mis­sion­ers don’t think the net-neut­ral­ity fight will pre­vent them from work­ing to­geth­er on oth­er is­sues.

Wheel­er ac­know­ledged Thursday that his Re­pub­lic­an col­leagues have “strongly held be­liefs,” but he in­sisted that he ex­pects fu­ture ne­go­ti­ations will con­tin­ue to be a “col­legi­al pro­cess.” He noted that many FCC ac­tions are still made on a un­an­im­ous basis.

“I don’t see the well as be­ing poisoned,” Pai said. “I hope the chair­man doesn’t bear me any ill will from one item to the next. Whatever is on tap next, we’re go­ing to ap­proach it with an open mind.”

“I look for­ward to con­tinu­ing my friend­ship with Chair­man Wheel­er even if we dis­agree on items,” said Mi­chael O’Ri­elly, the oth­er Re­pub­lic­an com­mis­sion­er.

But he also pre­dicted that the com­mis­sion­ers will con­tin­ue to be bogged down in par­tis­an fights over net neut­ral­ity as they try to in­ter­pret the vague lan­guage in the new reg­u­la­tions.

“My old boss Sen­at­or Jon Kyl used to say, ‘If I don’t ask you to vi­ol­ate my prin­ciples and you don’t ask me to vi­ol­ate my prin­ciples, there’s plenty in the middle we can all agree on,’” O’Ri­elly re­called. “Here, they have not only asked us to vi­ol­ate our prin­ciples, they ran over our prin­ciples.”

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