Current FCC Seen as Possibly Most Partisan Ever

Several dynamics also combined to create the perfect storm at the FCC. First is the strong personalities involved. Wheeler has many decades of Washington experience, as an association executive and lobbyist, and doesn’t back down from a fight.

Neither do Republican Commissioners Ajit Pai and Mike O’Rielly. Pai is a veteran of Capitol Hill and the FCC Office of General Counsel, whose chief of staff was general counsel. O’Rielly spent almost 20 years on the Hill, starting as an aide in 1994, just before Republicans took control of both houses of Congress for the first time in 40 years. The FCC Republicans have institutionalized the minority commissioner news conference following the chairman’s news conference after monthly commissioner public meetings. And Washington as a whole has grown gradually more partisan over the past 20 years, observers said. Social media also plays a role. Unlike a few years ago, members of the FCC can take to Twitter with instant reaction to events.

As if to put a exclamation point on the divisions, Wheeler recently slammed Republican commissioners, tying the future of telecom policy to the November election (see 1608150051). “Elections do have consequences,” Wheeler said in a speech at the Aspen Institute. Some former commissioners said Wheeler’s speech was the most partisan speech ever by a chairman.

A former Democratic commissioner said partisanship really took hold in President Bill Clinton’s second term. During a particularly weak point in his presidency, Clinton effectively gave the power to appoint Republican members of independent agencies to the Republican leaders in Congress, the former official said: “This caused both parties to give up even the pretext of appointing independent experts to independent expert agencies.” The FCC has thus become a place staffers go to fight the battles of their Hill benefactors, the former official said.

Split Votes

Minority and majority commissioners even disagree about how to frame partisanship, with the latter pointing to the high relative percentage of split votes and the former pointing to the low absolute portion.

“During the combined tenures of Chairman [Julius] Genachowski and acting Chairwoman [Mignon] Clyburn, there were dissenting votes on about 10 percent of meeting items,” a Pai spokesman said. “During Chairman Wheeler’s tenure, there have been dissenting votes on almost half of them. This isn’t a Washington problem. This is a Tom Wheeler problem. ... From Lifeline to E-rate, Chairman Wheeler has consistently rejected and/or discouraged bipartisan compromise. He has been a partisan warrior rather than a bridge builder.” The last Communications Daily Special Report documented this trend (see http://bit.ly/1OHoap1).

“During his time at the Commission, Chairman Wheeler has tackled complex issues head-on and has made tough policy decisions that clearly benefit consumers, innovation and competition,” a spokeswoman emailed. “From protecting consumers, ensuring a free and open internet and helping low-income Americans get access to broadband, Chairman Wheeler has held companies accountable and expanded opportunities for all consumers. Nearly 90 percent of commission votes are unanimous, and Chairman Wheeler always welcomes the input of his colleagues.” The difference between calculations of the two officials is based on whether major items or all items before commissioners are counted.

The outside view of the FCC also has a mostly partisan tint, with Republicans blaming Wheeler and Democrats blaming Pai and O'Rielly for the recurring fights.

“The FCC always is a cracked mirror of the White House, congressional relationship,” said former FCC Chairman Reed Hundt. “It’s an independent agency, so it’s between the White House and Congress. It obtains delegated powers from Congress and its rules are not issued or approved by the White House.” The current relationship between Congress and the White House is “extremely unproductive,” Hundt said. “You could blame the White House or you could blame Congress, but all you can say about the FCC is it reflects in a cracked way that relationship.”

By all measures, Wheeler has been a "terrific" chairman, said Hundt, a Democrat. The S&P 500 is up almost 25 percent and tech-heavy Nasdaq 30 percent since Wheeler took over in late 2013, he noted. “He’s accomplished the three necessary accomplishments of any fine, fine chairmanship,” Hundt said. “No one should get everything they want. No one should be put out of business and everyone should be better off collectively. That’s what has been accomplished.”

Michael Copps, former Democratic commissioner and onetime acting chairman, said partisanship isn't a Wheeler phenomenon. "Three-to-two votes are nothing new on consequential items," Copps told us. “I assume the majority of day-to-day FCC business is still done by unanimity. That said, I find the level of knee-jerk opposition to the majority's major proposals unprecedented." Copps is now a special adviser to Common Cause.

“It seems to be the partisanship is coming not from Wheeler but from the two Republicans,” said Mitchell Lazarus, longtime wireless lawyer at Fletcher Heald. “It’s as though they will dissent from an order almost because Wheeler favors it.”

The FCC has changed since he was a commissioner, with social media and the use of blogs offering officials an around-the-clock opportunity to make statements, said Harold Furchtgott-Roth, a Republican, now a senior fellow at the Hudson Institute. The nature of the FCC is also a factor, he said. “I think there’s a natural frustration that commissioners have with the chairman because the chairman by statute is very powerful, much more powerful than at most other independent agencies,” Furchtgott-Roth said. “So when you see the chairman exercise what appear to be extraordinary powers, that can cause some amazement in other commissioners.”

Berin Szoka, president of TechFreedom, said Wheeler has pushed policies that benefit blue states, to the detriment of red states. “A hallmark of this chairman is his contempt for rural America,” Szoka said. “He has again and again chosen options that benefit Democratic constituencies in cities over rural America.”

Szoka cited as a key example AT&T's buy last year of DirecTV. AT&T proposed doing a fixed wireless deployment to 13 million American in rural areas. Wheeler “refused” and insisted instead that AT&T deploy gigabyte service in cities, said Szoka. “I have to wonder whether this isn’t also in part political and, essentially, a way of taking it out on rural Republican America.”

There always have been politics at the FCC, said Free State Foundation President Randolph May. “After all, the president gets to name the chairman and commissioners are subject to Senate confirmation, and both of these actions understandably involve political considerations,” May said. “But, also by design, the agency is supposed to be more insulated from purely partisan political pressures than the executive branch agencies. This is what the requirement for bipartisan membership, with commissioners serving fixed, staggered terms, is intended to achieve.”

Openly Partisan

May, having observed the FCC for 40 years, said other chairmen also have tried to ally the agency with the politics of the administration. “Wheeler has been the most openly and persistently partisan chairman in my memory,” said May, a former FCC associate general counsel. “Whether Wheeler initially intended to go down this road or not, the reality is he’s conducted the commission’s business in a way that has been perceived as lessening the commission’s independence and increasing the agency’s susceptibility to pure partisanship.” May said he expects soul-searching to follow, with a look at whether the agency should undergo “meaningful structural reform.”

Wheeler “has operated his office more like a grassroots advocacy organization than the chair of an independent agency,” said Fred Campbell, Wireless Bureau chief under then-Chairman Kevin Martin, now director of Tech Knowledge. “It also appears Wheeler hasn’t made good-faith efforts to consider views that might be at odds with his own.”

Campbell said that during the runup to the net neutrality order, he was called to the FCC along with a host of officials from free-market and civil rights groups to present their views to the chairman. “The difficulty of accommodating a large number of participants with varying views left the impression that the meeting’s primary purpose was to support the appearance of an impartial process … rather than to engage in a meaningful dialogue on net neutrality issues,” Campbell told us. “Wheeler’s condescension was so obvious that the Rev. Jesse Jackson [of Rainbow Push] stood up halfway through the meeting, announced he’d heard enough and left.”

Wheeler's legacy “will be a medley of progressive consumer action and prohibitive corporate regulation,” said Adonis Hoffman, chairman of the for-profit Business in the Public Interest and a former aide to Clyburn. “I honestly believe the chairman could have accomplished as much, if not more, with a more collaborative approach. Granted, the Washington landscape is more partisan, but there was a lot of common ground on key issues that was covered unnecessarily with partisan manure.”