The FCC, once seen as a telco-thrashing hero, is sadly losing the plot
Is Tom Wheeler on the verge of following a dangerous path?
Comment The FCC's continued push against the powerful telco lobby has swung a spotlight onto the American regulator's archaic work practices and increasingly partisan atmosphere.
Appearing in front of a US Senate subcommittee (again) yesterday, FCC chairman Tom Wheeler and his four Commissioners were quizzed about a range of plans to update the rules surrounding the telecom industry, including net neutrality, broadband programs for the low-income, and new data privacy proposals.
Pretty quickly, however, the conversation turned to the increasingly partisan nature of the independent watchdog, particularly the recent, persistent habit of the three Democratic commissioners approving measures while ignoring the pleas of their Republican colleagues, while those Republicans embark on outlandish criticisms of the proposals.
Commissioner Ajit Pai (R) pointed out that there have been twice as many party-line votes at the FCC since December 2013 than under the previous four chairs combined. That's a pretty rich observation coming from Pai, who makes a habit of wildly criticizing anything that is proposed, often, you suspect, without even reading it. But it is still a valid concern.
The more reasonable Mike O'Rielly – the other Republican – is also concerned. He has been trying to work with the FCC to update its archaic work practices for over 18 months with almost no progress.
The rules that forbid publication of documents before a vote were leading to "routine confusion," O'Rielly noted back in August 2014, and were a barrier that "can be extremely frustrating for all involved."
When the controversial net neutrality regulations were being provided to companies like Google under the counter, the commissioners themselves were being prevented from even talking about what they contained. When O'Rielly pushed, he was given a classic bureaucratic excuse: it might conflict with other legislation.
O'Rielly is almost certainly right when he says it doesn't, but the foot-dragging by FCC staff goes on – and the situation blew up again yesterday in Congress.
Earlier this month, Wheeler announced his latest push: bringing broadband suppliers in line with data privacy rules and allowing consumers more control over how their data is used.
Regardless of the merits of the proposal, Wheeler and the FCC staff put out a fact sheet with details of the "notice of proposed rulemaking" and briefed journalists who are rarely critical of the FCC on its details – all before the commissioners had even seen what was contained in the actual proposals.
Worse, we still don't know what is actually in the proposals, and the commissioners are not allowed to tell us either, although O'Rielly noted that he feels the fact sheet presents an inaccurate view of what is really being proposed.
In the most notable exchange, subcommittee chair Greg Walden asked Pai to provide some details on the privacy plan – which will be voted on by the commissioners later this month – and was told he could not give them.
"Unfortunately, under the FCC's current rules I am prohibited from disclosing, even to you, the chairman of the subcommittee, the particular details of the proposal," Pai noted, "unless the chairman expressly authorizes it." He then gesticulated toward Wheeler at the end of the table with the two Democratic commissioners acting as a buffer between them.
"Seriously?" Walden replied. "You can't disclose, even to us?"
The FCC argument is that the vote by the Commissioners is about putting the proposal forward for public review, and only then is a real vote taken. But the truth is that this system is not justifiable, and the FCC's staff has increasingly been using the outdated rules to push an agenda (even though that agenda has largely comprised of tackling flaws that have long existed due to the power of the telco lobby).
Pai went further than simply attacking long-standing rules and noted that the combination of the rules and the increasingly partisan nature of the regulator was creating a dangerous situation where the FCC chair can drive through his plans.
The FCC's media relations office had been "transformed from a shop of career staffers dedicated to representing the interests of the agency as a whole into a propaganda machine for the Chairman's Office," he railed, not without justification. Staff were feeding non-public information to the press and other parties while the commissioners "are left in the dark," he argued.
There is some truth to the situation. And the simple fact is that if Commissioner Pai is coming off as the reasonable one, something has gone really wrong.
Of course, things are not all as simple as that.
Both Pai and O'Rielly have often acted as little more than mouthpieces for the telco lobby – repeating the exact same assertions often in the same language, and some clearly without any critical thought having been applied.
Pai has also been guilty of working hand-in-glove with Republican colleagues in Congress, clearly following an agreed strategy focused more on causing political damage to President Obama than in considered or thoughtful analysis of FCC proposals.
In that cynical atmosphere, it's hardly surprising that Wheeler – and his Democratic colleagues – would start to abandon the FCC's largely bipartisan traditions and concentrate on getting the job done. It is also worth noting that the Democratic commissioners rarely, if ever, use politically loaded terms to disabuse Pai or O'Rielly.
Time for reform
It is a dangerous path, however. Wheeler has unleashed his inner activist and made a habit of simply bypassing two of his five commissioners because he has the votes to pass whatever he and his team develop. He is also taking on the telco lobby and showing no signs of backing down or being intimidated by the fact that it can summon Congressional hearings seemingly at will.
That is good if you happen to agree with everything that Wheeler is doing, but the precedent it sets for the next FCC chair – who may be Republican – pulls the independent regulator into the same damaging ping-pong battle that so much of Washington suffers from and which has helped elevate figures like demagogue Donald Trump.
The solution for the FCC is to start taking seriously the need for it to update its work practices and, if it wishes to take on the role of internet regulator too, to start understanding the changes that the internet has wrought.
That begins with providing all of its documents online in an easily accessible format and doing a much better job at informing the wider public and pulling in their feedback. It's time for the FCC to grow up. ®