Emails Expose Obama Administration-FCC Overreach Regarding Obamanet
Earlier this month, the Wall Street Journal noted an incredible sequence of events brought to light through judicial process and undercover emails. Obama meddled in the net-neutrality process, violating standards of conduct. I have reproduced the article in its entirety, as the contents contained therein are rather incredulous:
Congressional committees rarely re-report journalistic exposés, but it’s amazing what information subpoenas can pry loose. A Senate committee has exposed new details on how the White House broke the law to get the Internet regulated as an old-fashioned utility, including emails that show how shocked regulators at the Federal Communications Commission were at the violation of their agency’s independence.
A page-one article in The Wall Street Journal last year detailed an “unusual, secretive effort inside the White House” led by a small group “acting like a parallel version of the FCC itself.” President Obama’s aides thought net neutrality “would help define the president’s legacy” and that along with immigration could be handled by unilateral presidential action. The courts have blocked Mr. Obama’s executive order on immigration, and the Internet regulations should be next to go.
The report, from Republicans on the Senate Committee on Homeland Security and Governmental Affairs, finds that FCC staff worked through a weekend in November 2014 to finalize a plan backed by Chairman Tom Wheeler for light regulation of the Internet. They were shocked on Monday, Nov. 10, when an agency official forwarded a news alert, which she summarized as follows: “Obama says to make it Title II”—the heavy-handed law regulating railroads and the old monopoly phone system.
Staffers then shared a flurry of emails: “Not sure how this will affect the current draft and schedule—but I suspect substantially.” “This might explain our delay.” “It might indeed.” “Will try to get to the bottom of this this morning.” “At least the delays in edits from above now makes [sic] sense.”
Panic struck when it became clear the chairman would cave in to Mr. Obama’s demand and surrender the FCC’s independence. This is a verbatim quote from a draft media Q&A prepared for Mr. Wheeler:
“Q. Has there been discussions between the WH and the FCC leading up to this rollout?
“A. The FCC kept the WH apprised of the process thus far, but there have not been substantive discussions [IS THIS RIGHT?].”
FCC staffers cited nine areas in which the last-minute change violated the Administrative Procedure Act, which requires advance public notice of significant regulatory changes. Agency staffers noted “substantial litigation risk.” A media aide warned: “Need more on why we no longer think record is thin in some places.”
These emails are a step-by-step display of the destruction of the independence of a regulatory agency. The Senate report should make fascinating reading for the federal appellate judges considering whether to invalidate the regulations.
Mr. Obama’s edict resulted in 400 pages of slapdash regulations that the agency’s own chief economist has dismissed as an “economics-free zone.” In the year since Obamanet has been in effect, regulatory uncertainty has led to a collapse in investment in broadband.
Independent regulatory agencies operate in a constitutional gray area, separate from the executive and legislative branches. They have the power to issue broad rules but are unaccountable to voters. The rationale is that agency staffers are experts in the fields they regulate. That justification collapses if they’re subject to political pressure.
In 1983, Ronald Reagan held a single meeting with his FCC chairman on the issue of regulating television rerun revenues. Unlike Mr. Obama, Reagan didn’t have his own staff working on the regulations. And Reagan didn’t express any opinion on the rules—also unlike Mr. Obama, who issued a video promoting utility regulation for the Internet.
Yet Reagan’s modest involvement was headline news. A congressional committee declared he “acted improperly and undermined the fairness and integrity” of the FCC. Sen. Daniel Patrick Moynihan said: “It is imperative for the integrity of all regulatory processes that the president unequivocally declare that he will express no view on the matter.” The Washington Post editorialized: “The danger lies in the kind of chilling signal a certain kind of presidential participation might send to all regulatory agencies about the possible fragility of their independence.”
A 1991 opinion from the Justice Department’s Office of Legal Counsel warns: “White House staff members should avoid even the mere appearance of interest or influence—and the easiest way to do so is to avoid discussing matters pending before the independent regulatory agencies with interested parties and avoid making ex parte contacts with agency personnel.”
The appeals court has plenty of evidence proving White House meddling with a supposedly independent agency. Voters have more reason for outrage at an administration that ignores limits on its power. The Internet is too important to be left to politicians, especially ones who violate the law.