Republican lawmakers are not pleased with the FCC's proposed new open Internet rules — set to be publicly released next Thursday — that call for aggressively regulating broadband providers like a utility. And they want to know how the FCC came up with them.
Congressman Jason Chaffetz, the chairman of the House Committee on Oversight and Government Reform, will chair a hearing Wednesday about whether the White House improperly influenced the independent agency and pressured its chairman, Tom Wheeler, to develop a net neutrality plan that mirrored recommendations President Barack Obama made last November. Obama had called on the FCC to classify broadband as a public utility and adopt open internet rules that would ensure that "neither the cable company nor the phone company will be able to act as a gatekeeper, restricting what you can do or see online."
The congressional hearing was initiated after Chaffetz reviewed heavily redacted emails and other documents VICE News obtained from the FCC two weeks ago in response to a Freedom of Information Act (FOIA) request; the emails show White House officials and Wheeler communicating about net neutrality. VICE News sought comment from Chaffetz's office about the email exchanges and shared the documents with him.
Wheeler unveiled details of the FCC's new net neutrality guidelines in an op-ed published in Wired earlier this month. His decision to classify broadband as a utility surprised net neutrality advocates who believed Wheeler, a former lobbyist for telecom firms, would adopt the draft proposal the FCC approved last May that would have authorized broadband providers to create "fast lanes" for content companies willing to pay for the service.
Chaffetz's suspicions about the White House's influence over the FCC's decision is based on a February 4 Wall Street Journal report that alleged two senior White House officials, David Edelman and Tom Power, held dozens of secret meetings with "online activists, Web startups, and traditional telecommunications companies" in an effort to build a case for net neutrality.
After the Journal story was published, Chaffetz and Senate Homeland Security Chairman Ron Johnson sent letters to Wheeler requesting a wide-range of documents including visitor logs and emails, and set a February 23 deadline for the FCC to produce the records.
"I am concerned that undue outside pressure may have led you to this decision," Johnson wrote in his letter to Wheeler. "In particular, my concern is the apparent pressure exerted on you and your agency by the White House."
The emails VICE News obtained from the FCC show that as far back as last May, when Wheeler released the FCC's draft net neutrality proposal, Edelman, Power, and other White House officials were communicating with Wheeler and his senior staff about the plan. However, the emails are so heavily redacted that its unknown what was discussed or whether it rises to the level of "undue" influence. (The FCC cited a privacy exemption and the deliberative process privilege, which protects "inter-agency or intra-agency memorandums or letters" from disclosure, as the reasons for blacking out the emails.)
Since last year, the FCC has turned over to VICE News thousands of pages of heavily redacted records, It has withheld thousands of pages more about the agency's internal discussions related to net neutrality.
In a letter dated February 9 included with the batch of White House emails, Kirk Burgee, the chief of staff for the Wireline Competition Bureau, one of seven FCC bureaus that advises the commission on policy related to wireline telecommunications, said the emails were redacted at the behest of the White House.
Although we have not completed the consultation process with the Department of State, we have completed the consultation process with NTIA [National Telecommunications and Information Administration] and the White House. As a result of that consultation, we are releasing an email exchange among Larry Strickling (Associate Administrator of NTIA), Tom Power (Office of Science and Technology Policy (OSTP), White House), Ross David Edelman (OSTP), and Chairman Wheeler. These records have been redacted pursuant to FOIA exemptions 5 and 6 which are consistent with those recommended by NTIA and the White House. We are also releasing an email exchange between Tom Power and Chairman Wheeler (which includes an email exchange among FCC staff and Chairman Wheeler) and an email exchange between John Podesta and Chairman Wheeler (which includes an email exchange among Jeffrey Zients (Executive Office of the President (EOP), White House), Jason Furman (EOP, White House), and Tom Power). These documents also include redactions under Exemptions 5 and 6 consistent with those recommended by the White House.
Burgee's letter footnoted two documents to justify the redactions: a January 29 email sent by associate White House counsel Nicholas McQuaid to Joanne Wall at the FCC's office of general counsel; and a December 31, 2014 letter from Kathy D. Smith, chief counsel, NTIA, US Department of Commerce, to Elizabeth Lyle, the FCC's assistant general counsel.
The FCC disclosed a copy of the letter Lyle signed and sent to McQuaid asking for guidance on whether any of the emails at issue should be released to VICE News and, if so, what should be redacted. The FCC also released an identical letter the agency sent to NTIA requesting redactions to documents.
An FCC spokesman told VICE News the Justice Department's FOIA guidance, which "the Commission strictly adheres to," "makes clear that the Commission should not unilaterally decide to release records that involve other agencies. Consistent with the guidance, the FCC always consults with other agencies on the sensitivity of a document before determining whether to disclose it."
Nate Jones, a FOIA expert at George Washington University's National Security Archive, said the FCC spokesperson's interpretation of the federal FOIA guidelines is a "bit off."
"The White House is not an 'agency,'" Jones said. "Does the FCC run emails from congresspeople or citizens outside of government by them before processing them for FOIA? I don't think so. I think in this case they gave the White House a political privilege."
The FCC is still due to turn over dozens of more pages to VICE News from the State Department. Lyle told VICE News those records are still undergoing a declassification review.
Patrice McDermott, executive director of the transparency organization OpenTheGovernment, told VICE News there's nothing improper about the FCC reaching out to the White House. But she said asking the White House to review and redact emails smacks of political interference.
"Were I Nicholas McQuaid," she said, "I would decline to suggest redactions, and thus remove any possible whiff of political interference."
One email the FCC turned over was dated April 23, 2014. In it, Zients, Furman, and Power were informed that the New York Times was "moving a story." The rest of the email is redacted. Obama's counsel John Podesta characterized the Times report in a follow-up email as "brutal" and asked if "somebody [would go] on the record and push back?"
It appears that the report in question was headlined, "Lobbying Efforts Intensify After F.C.C. Tries 3rd Time on Net Neutrality," in which Wheeler mounted a full-throated defense of the FCC's plans in the face of criticism by open internet advocates who accused the chairman of reneging on a promise to maintain net neutrality.
Another email, dated May 14, 2014, shows Larry Strickling advising officials whose names are redacted that "Comcast contacted [Secretary of Commerce Penny] Pritzker yesterday and asked to come in and brief us on net neutrality." That was just a couple of days before Wheeler unveiled the FCC's draft proposal supporting fast lanes for web traffic.
According to the Wall Street Journal report, that was when Power and Edelman started working on the White House plan, which Chaffetz and Johnson say Wheeler adopted. The report further notes, "Senior White House officials like Jeffrey Zients, director of the National Economic Council, were primarily concerned about the potential economic impact of changing the rules."
In an interview with VICE News, Chaffetz said the emails "raise serious concerns about the level of White House involvement" in the FCC's net neutrality decision.
"There's more than enough smoke here to warrant a further investigation," the Utah Republican said. "I think the FCC has to answer in totality what sort of interaction they had with the White House. If there's nothing to hide, then provide all of those emails unredacted."
Chaffetz said the redacted emails suggest the White House "was placing a heavy hand on how the [FCC] conducts its business," particularly at a time when "we're going to fundamentally transform the internet."
"[The emails] beg the question about White House direction, guidance, and orders given to what is supposed to be an independent agency," he said.
But Marvin Ammori, a lawyer who has advocated for net neutrality to the White House and FCC, wrote in a column published in Slate that Chaffetz and Johnson are "grasping at straws."
"This network neutrality proceeding is an example of how the government should operate," he wrote. "The vast majority of Americans — Republican or Democrat — support net neutrality, as do businesses across a wide range of industries. The cable industry is just complaining about a process by which both Obama and Wheeler reached the same obviously right answer: that the American people should control the internet's future."
The issue, said Jones, the National Security Archives's resident FOIA expert, is one of transparency, not whether there is widespread support for the FCC's net neutrality proposal.
"FCC FOIA officers are well trained as to what information may be withheld from requests made under the Freedom of Information Act," Jones told VICE News. "Offering White House political hands (who are not trained in FOIA) another, un-required crack at censoring a FOIA request is bad FOIA policy and a poor demonstration of open government."
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