On net neutrality, the FCC’s chairman increasingly stands alone


U.S. FCC Chairman Tom Wheeler testifies before the House Communications and Technology panel on Capitol Hill in Washington Dec. 12, 2013. REUTERS/Gary Cameron

First came the tech companies, almost 150 of them. Then it was the investor class, clamoring that the Federal Communications Commission's plan for net neutrality would create an uneven playing field between established companies and young startups. Protesters — usually more common on the National Mall than at the FCC's secluded offices in Southwest Washington — camped out at the commission's front doors this week.

To outsiders, the FCC may seem like a black box: We haven't even seen a draft of the proposed rules that have critics so alarmed. But on the inside of the commission, a charged political battle is playing out that could set the tone for the commission's future. And the fault lines are mostly leaving the agency's head, Tom Wheeler, cut off from the rest of his colleagues.

Wheeler has pushed back against claims that his draft rules on net neutrality would allow for an Internet fast lane. At a recent speech in Los Angeles, he told cable industry executives that he would not hesitate to regulate broadband companies more heavily if the situation called for it.

"If someone acts to divide the Internet between 'haves' and 'have nots,' we will use every power at our disposal to stop it," Wheeler said. "Prioritizing some traffic by forcing the rest of the traffic into a congested lane won’t be permitted under any proposed Open Internet rule."

That hasn't stopped a more recent rush of criticism — including from within the FCC itself. On Wednesday, Commissioner Jessica Rosenworcel stunned onlookers by requesting a one-month delay in considering the net neutrality item. The issue is set to be raised at the FCC's monthly meeting on May 15, but Rosenworcel is arguing that the agency needs more time to process the flood of critical public comments.

Meanwhile, Commissioner Mignon Clyburn stopped short of calling for a postponement, but indicated on her blog that she viewed the proceeding with an “open mind” in deference to the more than 100,000 people who had written in to the agency in recent weeks.

Then, on Thursday, Commissioner Ajit Pai backed Rosenworcel’s comments.

“I have grave concerns about the Chairman’s proposal,” Pai said in a statement urging for a delay.

The mounting pressure might have convinced other chairmen to reconsider. Not Wheeler, who has signaled his intention to bring up net neutrality next week regardless.

To see two liberal commissioners break so publicly from their Democratic chairman is unusual. (A spokeswoman for Clyburn declined to comment; a spokesman for Rosenworcel did not immediately respond to a request for comment.) That Pai did the same is slightly less surprising, but likely no less political, as the moment gives the Republican some cover to undermine Wheeler's early tenure. The widening rifts suggest internal deliberations on net neutrality may either have broken down or never took place.

Some say the revolt — not to mention the chairman's decision, for the most part, to ignore it — is evidence of Wheeler’s isolation.

“He's going to have to tread very, very carefully,” said Michael Copps, a former FCC commissioner currently serving as a special adviser to the consumer advocacy group Common Cause. “He doesn't have the wind at his back on this one.”

Wheeler is used to forging ahead alone. His style has been described as "determined and unapologetic," and somewhat more assertive than that of his predecessor, Julius Genachowski. Where Genachowski sought unanimity, Wheeler is not afraid to push forward with less than total support — a fact that is becoming painfully apparent now.

The danger for Wheeler is two-fold: If he presses on with net neutrality next week, he risks alienating the other members of the commission and possibly losing the votes he needs to move forward with the rulemaking. If he capitulates, it could be construed as weakness, according to one former FCC official who asked not to be named because of the sensitivity of the negotiations.

"Relationships on the [FCC's] eighth floor are really at a near all-time low — you have the Republicans in their corner with no incentive to come out half way, and then you have a chairman whose hallmark thus far has not been creating consensus," the official said. "That leads to a more dysfunctional eighth floor dynamic."

Wheeler may simply be overwhelmed, said Rick Kaplan, the former head of the FCC's wireless bureau and a current executive vice president at the National Association of Broadcasters.

"Chairmen have a very difficult job," said Kaplan,"because 99 percent of the time, you're running the agency and feel like a CEO — but the reality is, you're just 20 percent of what comes out in the final product. So you have to manage both vertically and horizontally, and nothing prepares you for that."

The friction now on display is common among new FCC heads, multiple sources said.

"There's a honeymoon period for every chair," said Blair Levin, a top adviser to former chairman Reed Hundt during the Clinton administration. "Then you get to the hard work of a place. There's an institutional tension that's always existed and always will exist."

Rosenworcel and Pai may be allied on tactics, but divided on outcomes. For the former, a delay would buy time to rally support for more robust net neutrality rules. Postponing the May 15 agenda item, meanwhile, would give the latter a chance to organize more opposition to net neutrality rules in general.

“For both sides of that equation, they feel as if more time is to their benefit,” said Robert McDowell, a former Republican commissioner at the FCC.

Both are likely to be thwarted by Wheeler, who has the power to set the agenda over the other commissioners' objections. Still, in a concession of sorts Thursday, Wheeler agreed to accept public comments on the proposal right up until the committee's meeting on May 15.

Brian Fung covers technology for The Washington Post.
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