Thought Piece by Stephen Heins

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A political temper tantrum at the FCC

December 01, 2016 – 07:28 AM EST | By By Lawrence Spiwack, The Hill

The United States just went through a brutal election season. Politics is a nasty game. But now that the election is over, we must – in the immortal words of Abraham Lincoln – come together and embrace the better angels of our nature.

Unfortunately, Federal Communications Commission (FCC) Chairman Tom Wheeler did not get the memo.

Two days after the election, Wheeler announced an aggressive agenda for the FCC’s Nov. 17 open meeting to push through some of his remaining high-priority items, including, among other things, mandating a massive rate reduction for Business Data Services without any economic justification for the naked benefit of select constituencies.

As to be expected after a major election where the other party takes control, Sen. John Thune (R-S.D.), the chairman of the powerful Senate Commerce Committee, shortly thereafter wrote a letter to the FCC behooving Wheeler to refrain from acting on “complex, partisan, or otherwise controversial items” during the Presidential transition.

Concurrently, House Energy and Commerce Chairman Fred Upton (R-Mich.) and the Subcommittee on Communications and Technology Chairman Greg Walden urged Wheeler to vote only on “matters that require action under the law” and also to avoid “complex and controversial items” during the transition.

Although Wheeler was under no obligation to comply with these congressional requests, he acquiesced and one day before the Open Meeting dropped every single item from the agenda (all of which by any reasonable definition could be considered “complex” and “controversial”).

Wheeler did not go quietly into the good night, however.

In his post-meeting press conference, the chairman launched into a rant, venting his frustration about the election’s outcome and the likely evisceration of his legacy as chairman: He blamed the Republicans on the Capitol Hill; he blamed the Republicans on the Commission; and, of course, he blamed the “largest incumbent firms” – many of which also are the largest spenders on broadband infrastructure in the world.

Yet while Wheeler was quick to wag his crooked finger at enemies both real and perceived, what Wheeler did not do is to take any responsibility for this toxic political stalemate upon his own shoulders. Clearly, Wheeler did not heed the old proverb that “so shall ye reap, so shall ye sow.”

Throughout his tenure as chairman, Wheeler has eschewed a somber and serious approach to telecom policy in favor of a political approach hatched in the salon of Saul Alinsky.

As I have documented in this space over the past four years, Wheeler’s shenanigans as chairman include, but were certainly not limited to:

• Attempting to force non-profits filing in commission proceedings to reveal their donor lists in clear violation of Supreme Court precedent;
• Improperly coordinating with the White House to encourage mass “clicktivism” as probative evidence to support the FCC’s controversial decision to reclassify broadband internet access as a Title II common carrier telecommunications service while deliberately ignoring any serious economic analysis of the issue;
• Hiring people for senior leadership positions at the commission even though they filed as interested parties in dockets they were later tasked with supervising, thus creating a serious conflict of interest problem;
• Illegally attempting to hold a Twitter town hall with an outside party to discuss a yet-to-be-released commission item during the Sunshine Act “quiet period”;
• Only making public the results of an internal peer review critical of the FCC’s economic analysis in the Business Data Services proceeding on the very day comments were due, thus depriving interested parties of an opportunity for meaningful comment;
• Continuing to lie to the American people that cable and satellite companies allegedly charge consumers $231 a year in set-top box rental fees, even though that number was thoroughly and publicly debunked;
• Improperly expanding the FCC’s important merger review authority to impose conditions and “voluntary commitments” to serve select political constituencies and priorities that by any reasonable account had no nexus to any specific merger-related harm;
• And as perhaps the most partisan (and shameful) act I have ever witnessed in my 22 years as a telecommunications lawyer, Wheeler grasping the hands of his fellow Democratic commissioners and raising them high over their heads in a victory salute to a standing ovation after the Open Internet Order vote. Such childish behavior simply confirmed what every telecommunications professional already knew: Wheeler had no intention of conducting a dispassionate analysis and viewing all parties equally before the law. (I shudder to think what would happen if several justices of the Supreme Court were to do the same after a controversial ideological vote.)

Given the above, is there any wonder why the FCC under Wheeler’s tenure has come to be widely regarded as an “economics-free zone“?

Fortunately, Wheeler’s tenure as chairman is rapidly coming to a close. The big question is whether Wheeler’s chairmanship has done irreparable damage to the FCC’s institutional reputation.

To wit, given mounting frustration over the way Wheeler has run the FCC, the House Energy and Commerce Committee has voted on multiple bills that would have dramatically altered the way the Commission conducts its business, effectively imposing a special carve-out for the FCC from the well-established precepts of the Administrative Procedure Act.

But radical changes to the FCC’s rules of practice and procedure are the least of the commission’s problems going forward; given the shenanigans of the last four years, there are also growing calls for outright abolishment of the commission itself, including by two members of President-Elect Donald Trump‘s transition team.

Whether or not we see some sort of Communications Act rewrite in the 115th Congress (comprehensive or incremental) remains to be seen. If we do, I hope that any such legislation will be seriously vetted, to the extent practicable, to avoid the proverbial law of intended consequences (a vetting far too often ignored in the sausage-making).

In the meantime, the incoming FCC chairman will need to operate under the constraints imposed by current statutory framework and restore the commission’s reputation as a truly “independent” agency committed to the dispassionate evaluation of the law, economics and facts before it.

For this reason, because the old adage of “policy is personnel” means more now than ever, we can only hope that both the Trump transition team and the Senate Commerce Committee view Wheeler’s chairmanship as a teachable moment: We do not need to replace one ideologue with another.

Telecom policy is a serious business and – as Wheeler’s tenure as chairman amply demonstrates – the public interest is ill-suited by partisan leadership. Instead, Trump should appoint somebody to lead the FCC who truly understands the economics of the business, respects the law and, most importantly, is committed to uphold every American’s basic right to due process.

If not, then just when you think the next chairman can’t be any worse than the last – they will be.