Thune Addresses FCC Leadership Failures

July 7, 2016

WASHINGTON - U.S. Sen. John Thune (R-S.D.), chairman of the Senate Committee on Commerce, Science, and Transportation, addresses leadership failures at the Federal Communications Commission.

Mr. President, I rise today to speak about the importance of keeping independent agencies accountable to Congress and to the American people.

Congress created independent agencies to be places where expertise in complex areas of the nation’s economy informs policy making, within limits set by Congress.  One such congressional creation is the Federal Communications Commission. 

Congress conferred independence on the FCC so that it would be free from the normal control exercised by the President over the executive branch.  But in recent years, the FCC has behaved less as an independent commission accountable to Congress, and more as a de facto arm of the executive branch, wholly subservient to the President.

At the same time, the FCC has become more partisan than ever before, and an institution that has seized greater regulatory power while simultaneously shutting down bipartisan dialogue and compromise.

The recent rulemaking proceedings regarding Title II common carrier authority, the massively expanded E-rate and Lifeline programs, backwards-looking set-top box rules, and the agency’s power grab over privacy regulations have all been characterized by a lack of bipartisan compromise or respect for the limits of the authority delegated by Congress.

Much of the responsibility for this downward trajectory rests with the current FCC Chairman, Tom Wheeler.  For example, during Chairman Wheeler’s confirmation process, I asked him if he would commit to coming to Congress for more direction before attempting another iteration of net neutrality rules.  Mr. Wheeler unequivocally said that he would do so.  However, not only did Mr. Wheeler not come to Congress for more direction, at the behest of President Obama, he jammed through the most radical implementation of net neutrality rules ever—a power grab of stunning proportions—and he did so on a purely partisan vote.

The number of three-to-two party-line votes on Commission meeting items during Mr. Wheeler’s tenure are a clear indication of an FCC chairman who embraces partisanship over compromise.  In just the first year of his chairmanship, Mr. Wheeler forced through more items on party-line votes than the previous four chairs combined.

Chairman Wheeler speaks often of his belief in the importance of competition and market forces.  Hearing that, one might think he would exercise his agency’s powers with humility and a light touch in order to promote the incredible innovation of which our communications sector is capable.  Instead, Chairman Wheeler seems more focused on waging partisan battles and accumulating more power, while at the same time avoiding accountability to Congress and the American people.

I have come to the floor today to talk about the most recent example of Chairman Wheeler utilizing questionable legal authority, while simultaneously trying to dodge public accountability.  This example relates to the FCC’s rules about disclosure of nonpublic information.

The FCC’s own rules prohibit its employees from disclosing nonpublic information to anyone outside the Commission unless expressly authorized by the Commission or its rules.  Nonpublic information includes details of upcoming rulemakings or other actions that the commissioners are still negotiating.  These rules are intended to foster the Commission’s ability to have honest and fulsome negotiations among the commissioners and staff, and to prevent any special interests from gaining a particular advantage over other stakeholders.

Earlier this year, however, Commissioner Michael O’Rielly wrote a blog post expressing his concerns that Chairman Wheeler was instead using these rules to muzzle other commissioners.  Though Commissioner O’Rielly respected the Commission’s rules against disclosing details about upcoming rulemakings without authorization to the press or other stakeholders, he pointed out that Chairman Wheeler was freely disclosing nonpublic information whenever he wanted.

Commissioner O’Rielly was concerned that this allowed Chairman Wheeler to frame and influence the public’s understanding of upcoming issues to his advantage by selectively disclosing information that no other commissioner is allowed to discuss publicly.

Indeed, the chairman’s staff would later tell my staff that Commissioner O’Rielly would not be permitted to correct a factual error stated by Chairman Wheeler if doing so meant discussing nonpublic information.

As Chairman of the Commerce Committee, I sent a letter this March asking Chairman Wheeler to explain whether he discloses nonpublic information to outside groups and how the Commission authorizes his disclosures.  [Mr. President, I ask unanimous consent to enter the exchange of letters between myself and Mr. Wheeler on this issue into the record, and that these letters appear in the record at the conclusion of my remarks.]  In his response, Chairman Wheeler maintained that, as chairman, he can unilaterally authorize disclosures of nonpublic information whenever he wants, without any need for approval by the Commission, despite the clear prohibition against doing so in the Commission’s own rules.

The events surrounding the FCC’s March 31 Open Meeting are a striking example of how the selective leaking of nonpublic information can be used to distort an ongoing debate and turn an emerging bipartisan consensus into a partisan power grab. 

The Open Meeting agenda included an order expanding Lifeline, which is a program that has spent billions of ratepayer dollars in an effort to improve access to communications technology for low-income Americans.  While the goal of this program is important, unfortunately, it has been replete with rampant fraud for years, which the U.S. Government Accountability Office has recognized more than once.

A compromise on Lifeline between a Democratic commissioner and the two Republican commissioners was emerging.  This compromise would have included a spending cap to prevent the program from wasting ratepayer dollars.  It turns out, however, that Chairman Wheeler was not on board with this compromise.

On the morning of March 31st, Chairman Wheeler delayed the Open Meeting by several hours, a highly unusual move.  During the delay, Politico published a story about the emerging bipartisan compromise, citing “sources familiar with the negotiations.”  Disclosure of any information about ongoing negotiations right before an Open Meeting is a direct violation of the FCC’s “sunshine rules,” which protect commissioners’ deliberations. 

What happened next is exactly what you might expect.  The Politico story spurred outside political pressure against the emerging bipartisan compromise, which subsequently fell apart.  Ultimately, the Lifeline order moved forward on a three-to-two party line vote, without a cap or other bipartisan reforms, right in line with Chairman Wheeler’s preference.  Yet another three-to-two party-line vote forced by the chairman –thwarting a common sense, bipartisan compromise.

And just last week, 12 states, including my home state of South Dakota, sued the FCC in federal appellate court here in Washington, D.C., challenging the regulatory overreach of the FCC’s Lifeline order that came out of the March 31 Open Meeting. 

In April, I sent another letter asking Chairman Wheeler to explain the source of his claimed authority to disclose whatever nonpublic information he wants, whenever he wants.  I also asked a direct question: “did you, Chairman Wheeler, authorize the disclosure of nonpublic information to Politico on the morning of March 31st in advance of the Open Meeting?"

Chairman Wheeler responded that his position as chief executive of the Commission empowers him to do anything that streamlines the FCC’s work.  According to his interpretation, if the chairman decides on his own that releasing nonpublic information will make the FCC operate more efficiently, he can do it, even though the FCC’s rules explicitly prohibit the disclosure of nonpublic information.

I appreciate the role the chairman plays in the day-to-day management of the Commission, but this appears to be a specious attempt to exempt the chairman from a very clear rule.  Indeed, there is no record that the Commission ever intended for its chairman to be exempt when the agency adopted the rule twenty years ago, and the rule very clearly gives the Commission, not its chairman, the authority to disclose nonpublic information.

In responding to my April letter, Chairman Wheeler also ignored the question of whether he personally authorized the leak to Politico on the morning of the Open Meeting.  My staff followed up with Mr. Wheeler’s staff several times on this matter, and they have emphatically stated that Chairman Wheeler refuses to answer this question.

Everyone who cares about government accountability should pause to think about this, Mr. President: even though Chairman Wheeler claims he has the clear legal authority to leak whatever nonpublic information he wants, whenever he wants, he nevertheless has refused to answer this simple question about whether he indeed authorized the leak on the morning of March 31st.

Since Mr. Wheeler could have just said “no” if he did not actually authorize the leak of nonpublic information, that leaves only two possible conclusions:

  • One, Chairman Wheeler did authorize the leak, but is not confident in his roundabout interpretation of the rules and fears admitting to violating them, or
  • Two, Chairman Wheeler simply does not respect the legitimate role of Congressional oversight and believes that he is unaccountable to the American people.

I would also note, Mr. President, that while Chairman Wheeler refused to answer whether he authorized the disclosure, he sought to obfuscate and cast blame by stating that it was instead Republican Commissioner Ajit Pai who leaked nonpublic information in advance of the Open Meeting.  This shell game is unworthy of a chairman of an independent commission.

Indeed, Mr. Wheeler’s attempt to cast blame on another commissioner only adds emphasis to the overall point I’m making here.  Chairman Wheeler seeks to use the rule prohibiting the disclosure of nonpublic information as both a shield and a sword.  On the one hand, he claims that the rule prohibiting the disclosure of nonpublic information does not apply to him; on the other hand, he seeks to shut down criticism and debate from another commissioner by stating that the commissioner may have violated the rule prohibiting disclosure of nonpublic information.

The FCC’s nonpublic information rules were intended to facilitate and protect internal Commission deliberations.  Chairman Wheeler instead is using them to stifle or manipulate the other commissioners.

Fortunately, the FCC Office of Inspector General is now investigating what happened on March 31st.  The IG is looking into who disclosed the nonpublic information about ongoing negotiations among the commissioners, including any role Chairman Wheeler had in the leak to Politico.  I look forward to the IG’s findings, and expect that we will learn the answers to the questions I have posed to Chairman Wheeler, particularly the one question that he has refused to answer so far.

Taken alone, the Lifeline leak may seem to be just a minor transgression that can be chalked up to business as usual in Washington, D.C.  But in the case of current FCC leadership, it is just one example out of many that demonstrate a disregard for the limits Congress has placed on the agency’s authority.

The regulatory power grabs over Title II common carrier authority, and the FCC’s recent privacy rule are further evidence that Chairman Wheeler shares the Obama Administration’s propensity for legal overreach and the intentional circumvention of Congress.  In this environment, Congressional oversight is more important than ever as a critical check on bureaucratic power. 

Regardless of who sits at the helm of the Commission, such oversight must be pursued, and I am committed to ensuring that it does.