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Republicans in the U.S. senate published a report this week that slammed the way Federal Communications Commission developed and adopted net neutrality rules last year, particularly the influence that president Obama exerted over FCC chairman Tom Wheeler. There is certainly partisan intent behind the report, but along with the rhetoric it also includes emails and other documents that back up what newspapers had already reported: Wheeler’s cherished no lobbyist left behind approach – leave net neutrality rules open to ongoing wrangling by Beltway insiders – was deep sixed after Obama publicly endorsed a comprehensive common carrier approach.
The documentation is important because it could set the stage for another court challenge to the FCC’s decision to regulate broadband service under common carrier rules. There’s already one appeal in progress that challenges the FCC’s authority to impose the new rules. It’s likely to fail, although the court might do some trimming around the edges.
A key claim in the republicans’ report is that the process the FCC used to write the new rules was illegal. One problem is that Wheeler didn’t get stakeholder comments on the new direction he quickly took after Obama weighed in. Another is that there wasn’t public notice – ex parte filings in the jargon – of Wheeler’s meetings at the white house.
The documents reviewed by the Committee make clear that Chairman Wheeler regularly communicated with presidential advisors. None of the communications reviewed by the Committee were submitted to the FCC’s formal record in the form of ex parte notices although the [Open Internet] Order was clearly discussed. One email between Chairman Wheeler and [top Obama aides] makes reference to a prior conversation about the OI Order. Ex parte notices were not filed for either the email or the conversation.
It was clear at the time that the ultimate version of the new rules was written in a hurry, and apparently wasn’t complete even at the time it was approved by FCC commissioners on a party line vote. In the past, federal courts have given the FCC tremendous leeway in deciding how to regulate telecommunications, but have been less forgiving when standard procedures – particularly those hard-coded into law – aren’t followed.