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Let the dog and pony show begin! Republicans in Congress and their cable company allies are smarting over news that the FCC will reclassify internet providers, and have responded with not one, but two investigations that seek to uncover illegal meddling by the White House.
The twin probes, which are being led by Sen. Ron Johnson (R.-Wis) and Rep. Jason Chaffetz (R-Utah), call on FCC Chairman Tom Wheeler to explain how he came to favor net neutrality — a policy that prevents ISPs from giving special treatment to some websites over others when they deliver broadband.
Net neutrality is indeed an important issue, and Republicans are within their rights to implement investigations of it. The problem, however, is that their premise for probing Wheeler appears to be completely baseless.
According to Senator Johnson, the purpose of the investigation is to determine if Wheeler’s decision resulted from “undue outside pressures, particularly from the White House.” The message is that President Obama has someone flouted the rule of law, and run roughshod over an independent agency.
But there’s little evidence to justify such a charge. While Johnson cites public remarks by the President and a report in the Wall Street Journal about the White House’s interest in the net neutrality file, that’s hardly a smoking gun.
More importantly, the Republicans have yet to explain how exactly they think the White House behaved illegally. Johnson’s public letter says the executive branch’s behavior has been “inappropriate from a constitutional standpoint” and “improper from an Administrative Procedures Act perspective,” but fails to point to specific laws or regulations.
Unfortunately for net neutrality critics, “inappropriate” and “improper” seem pretty thin gruel, even as a political charge. And they almost certainly fall far short of material for a lawsuit.
While Presidents typically steer clear of saying what independent agencies should or should not do, President Obama is hardly the first to speak up on an FCC issue. Indeed, every chief executive in the last 30 years has stuck their oar in the water at one time or another, according to Harold Feld, a senior lawyer with the advocacy group Public Knowledge.
“By strong convention, the President is supposed to respect the independence of the agency, and Presidents generally save their ammo on this for things they really care about. There are good reasons for this general rule,” wrote Feld by email. “But there are also good reasons for the President to speak up from time to time — particularly on matters of national importance such as the fate of broadband (Obama), reducing the influence of money on politics (Clinton) and the fate of media ownership rules (Reagan, Bush I, and Bush II).”
Feld, who has created a graphic of Presidential pronouncements about FCC issues, added that there is no law that prevents the President from sharing his views about the agency or from talking to its Chairman. Meanwhile, none of the previous Presidents’ remarks on FCC issues have resulted in a court action — meaning it’s near certain that Obama’s won’t either.
So what’s going on? In the view of Berin Szoka of TechFreedom, a group critical of Wheeler’s proposal, the legal case is “subtle” but turns on two issues: whether the White House “threatened” Wheeler as the head of an independent agency, and whether the executive violated an anti-lobbying law by having FCC staff lobby Congress. Or something.
The better explanation is that the twin Congressional investigations are no more than a political stunt to muddy the waters in the net neutrality debate. That’s a shame. No matter what you think of the substance of Wheeler’s proposal — you can read about a Republican FCC Commissioners’ latest objections here and here — the American public deserves better on this matter than Congress’s “investigations.”