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Net neutrality: Email trail reveals how Prez Obama bent the FCC to his will

US senators get hands on regulator's internal memos sent during open net order wrangling

US Republican senators have today published emails that suggest the President "unduly influenced" the FCC – America's nominally independent telco regulator.

The Federal Communications Commission (FCC) switched tack on bringing about "net neutrality" after feeling the heat from President Barack Obama, who intervened on the issue in November 2014. The nation's commander-in-chief demanded a "free and open internet," and the watchdog wound up introducing tough rules against ISPs.

The FCC was in a sticky situation: two earlier orders by the agency to enforce net neutrality had been struck down by the courts, which concluded that regulating broadband exceeded the commission's authority. FCC staffers were working around the clock to draft a workable light-touch approach to implementing net neutrality by the end of the year.

Then Obama declared support for using Title II rules – designed to regulate the switched circuit Bell monopoly in the 1930s – to regulate citizens' broadband. Two Obama aides were responsible for bending the commander-in-chief's ear: David Edelman and Tom Power, who apparently effectively created "a parallel version of the FCC."

On February 4, 2015, the FCC – having previously said it would follow the courts' guidance in devising new light touch rules on governing internet access – fell in line with the executive, and agreed that it would apply strict Title II rules broadly to data networks.

Internal FCC emails revealed in a new report by Republicans on the Senate Homeland Security and Governmental Affairs Committee show that the agency's staff were worried that this volte-face could violate federal law – because it short-circuited the mandatory notice-and-public-comment rule-making process.

The FCC is not allowed to hardwire American policy as it sees fit without consulting widely first, and FCC Chairman Tom Wheeler appeared to be aware of this. The internal memos also poured doubt on Wheeler's claim that the agency had been thinking about Title II reclassification before the President waded in.

In other words, it appears Obama more or less instructed his country's independent regulator to use Title II, and the agency promptly caved.

"Wait, he did what?" – incredulous FCC staffers doubt the chief

And the report [PDF] found that the FCC was wary of its obligation to provide summaries of ex parte communications between it and the White House.

White House staff are supposed to avoid the appearance of conflicts of interest with independent regulators such as the FCC, and are advised not to bring up pending issues with them. However, the FCC filed no ex parte notices covering a dozen meetings at the White House. The email trail proves Wheeler discussed the open internet order with White House staff.

Arcane, perhaps, but rules are rules, and in political scandals it's the coverup that gets you, not the crime. Any suggestion that the FCC acted improperly is sure to be exploited by Republicans and others who seek to invalidate the final open internet order.

"It should be highly concerning that an independent agency like the FCC could be so unduly influenced by the White House, particularly on an issue that touches the lives of so many Americans and has such a significant impact on a critical sector of the United States economy," the committee concludes. "Had the White House not inserted itself into the formal FCC rulemaking process, it is probable that the Open Meeting in December would have included the Open Internet order."

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