FCC Chairman Tom Wheeler told members of Congress Tuesday that the White House did not pressure the agency into passing new internet rules, but one Republican congressman is honing in on two words contained in an email from last year that could indicate just the opposite.
Rep. Jody Hice (R-GA) pointed to an email Wheeler wrote in May 2014 in which a staffer for then Senate Majority Leader Harry Reid wrote the chairman and admitted to telling the White House to "back off" Title II. That's the part of the 1934 telecommunications law that, as of last month, gives the agency the authority to regulate the internet as a public utility.
While Wheeler at first wanted to use Section 706 of the Telecommunications Act of 1996 as the basis for the FCC's authority to implement the new rules, known collectively as net neutrality, President Barack Obama has consistently maintained that Title II of the Communications Act of 1934 should be invoked instead. Wheeler later changed his mind on the issue and decided to go along with the White House.
Wheeler denies, however, that the administration played any role in his reversal.
Hice made the case during the hearing that the White House can offer its opinion to the FCC, an independent agency, but it cannot tell the commission which rules to vote on, which ones to pass or under which previous law to seek new authority.
But again pointing to those two words, Hice said it sounded like the White House was giving more than just an opinion: "Typically, you would not tell someone who is offering an opinion to "back off." Wheeler said he didn't understand the "parsing of the words" and went on to point out the timing of the email to which the congressman was referring.
"I indicated in May I was proposing Section 706 was the solution and I learned through the process of this, long before the White House ever had their filing, that Section 706 was not the answer," Wheeler said.
"But the White House was not providing an opinion," Hice argued. "They were putting some sort of directive to do something. Otherwise there wouldn't have been comments telling the White House to 'back off."
Wheeler said Hice was reading into his discussion and that the congressman's assertion wasn't conclusive because there is "more than clearly what is stated there."
As for Section 706 and Title II, the laws are similar, but the wording in Title II would likely make it easier for one to argue that the government has the authority to strictly regulate the Internet. Section 706 states, in part,
The Commission and each State commission with regulatory jurisdiction over telecommunications services shall encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans by utilizing, in a manner consistent with the public interest, convenience and necessity, price cap regulation, regulatory forbearance, measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment.
Title II, however, is much more specific in how to regulate:
It shall be the duty of every common carrier engaged in interstate or foreign communication by wire or radio to furnish such communication service upon reasonable request therefor; and, in accordance with the orders of the Commission, in cases where the Commission, after opportunity for hearing, finds such action necessary or desirable in the public interest, to establish physical connections with other carriers, to establish through routes and charges applicable thereto and the divisions of such charges, and to establish and provide facilities and regulations for operating such through routes.
Title II adds:
All charges, practices, classifications, and regulations for and in connection with such communication service, shall be just and reasonable, and any such charge, practice, classification, or regulation that is unjust or unreasonable is hereby declared to be unlawful.
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