Lawmakers argue the FCC has gone too far

Employing sometimes harsh language, lawmakers on Tuesday argued there should be closer scrutiny over the actions of the Federal Communications Commission (FCC).

A series of high-stakes enforcement actions by the FCC against companies such as T-Mobile and AT&T, which agreed to pay $105 million for placing unwanted charges on consumers’ phone bills, and Marriott, which paid $600,000 for blocking access to its customers Wi-Fi devices, particularly came up for debate.

During a hearing by a subcommittee of the House Energy and Commerce Committee, such criticisms often reflected a partisan divide present on the Commission itself, which has three Democratic members and two Republicans.

With the FCC taking up closely-watched battles over "net neutrality," regulation on set-top boxes by providers such as Amazon and Google, and an upcoming auction for unused portions of the nation’s wireless broadband spectrum, tensions in the frequently-technical debate often ran high. The hearing came on the heels of a bipartisan bill calling for more transparency at the agency.

One Republican lawmaker accused the commission’s Democratic majority, led by Chairman Tom Wheeler, of violating a commitment to “regulatory humility.” But other lawmakers praised the commission for its action on issues such as capping inmates’ phone rates and working to close the “homework gap” through universal broadband Internet for students across the country.

“Many stakeholders have expressed overarching concern that the FCC is adopting and applying its rules in an arbitrary fashion, singling out certain companies or industries for asymmetric regulation,” said Greg Walden (R) of Oregon, chairman of the Communications and Technology Subcommittee, which held the hearing.

But Rep. Anna Eshoo (D) of California particularly pointed to the commission’s adoption of net neutrality rules in February as a victory for consumers. “I think this is the most proactive commission and chairman I’ve worked with,” she said. "We do get some things right around here."

In repeated questions over the course of the three-hour hearing, several lawmakers criticized a series of agency decisions, particularly questioning the FCC’s commitment to transparency, citing communication issues between commissioners, who have often voted 3-2 along partisan lines. The broad mandate given to the FCC’s Enforcement Bureau to crack down on companies in disputes over Internet access was particularly a topic for criticism, including by Commissioners Ajit Pai and Michael O’Rielly, who often serve as dissenting votes on decisions. The two commissioners said they often received notice of actions by the bureau only days in advance.

“To be blunt, the FCC’s enforcement process has gone off the rails,” Commissioner Pai said in his written testimony. “Instead of dispensing justice by applying the law to the facts, the Commission has focused on issuing headline-grabbing fines, regardless of the legality of its actions." Pai said he had very seldom dissented from regulatory actions under the leadership of former Chairs Julius Genachowski and Mignon Clyburn, both Democrats.

The task of defending the commission often fell to Chairman Wheeler.

In response to a series of questions about whether the commission should take aggressive action to crack down on Internet posts by ISIS and other extremist groups in the US in the wake of the deadly attacks in Paris, he pointed to the difficult nature of balancing competing concerns in setting telecommunications policy.

“One of the things I’ve found in my two years on the job, is that the regulatory process tends to be a slow process, which tends to mitigate some of the kneejerk reactions you mentioned,” he said. Wheeler and other commissioners expressed support for a bipartisan effort to improve communications by first responders spearheaded by Rep. Frank Pallone (D) of New Jersey.

The goal of expanding broadband access across the country, particularly to rural areas, appeared to transcend divisions at the FCC.

Several commissioners singled out a so-called “dig once” policy — providing for the expansion of broadband Internet by allowing construction crews building or repairing roads to install fiber optic cable at the same time. That would increase the cost of highway projects by only 1 percent, said FCC Commissioner Rosenworcel.

Commissioners Clyburn and O’Rielly in October issued a joint statement decrying some cable companies of using FCC funds – provided by its Universal Service Fund to pay for improvements to their own facilities – to build cafeterias and purchase artwork for their employees.

“Oversight of all the agencies under our committee’s jurisdiction is always a top priority for Democrats," said Rep. Pallone. "Still, I wish the committee had been as energetic this year about other problems the American people are grappling with, such as climate change, safe drinking water, or impact of domestic violence in sports."

A central tension facing the FCC is how to stay relevant when laws and regulations often lag years behind new technology, says Ms. Rosenworcel.

“In 1991, an autodialer was a big, bulky piece of equipment,” she said, referencing a 1991 law designed to curb robocalls. “One of our challenges is that we have to still use that law when we have software that can accomplish what that hardware did decades ago. And so I think the struggle that the agency has is to trying to figure out how to manage with a statute that didn’t contemplate the digital world we live in today.”