Policy

Net Neutrality Rules Are Under Fire Again

3/28/2011 12:01 AM Eastern

Washington — The Federal
Communications Commission’s
network-neutrality
rules — or, more specifically,
how they were arrived at —
have come under increased
scrutiny from Capitol Hill
lawmakers.

Already, Republicans
have been trying to defund
the rules; at least a couple of
companies have opposed them in court; and the government’s
own paperwork-vetting machinery will delay
their likely implementation to August at the earliest.
That’s where the unhappy chairman of the House Oversight
and Government Reform Committee comes in.

Rep. Darrell Issa (R-Calif.), head of the House government-
reform panel, has told FCC chairman Julius
Genachowski that his responses on the FCC’s process
for adopting new network-neutrality rules were incomplete,
ignored many of the congressman’s questions
and that the chairman needs to explain numerous
White House visits between January 2009 and November
2010 — and to do so by April 6.

In a letter to the chairman last week, a copy of which
was obtained by Multichannel News, Issa cited numerous
meetings between Genachowski, his staffers, and
the White House, pointing to 81 visits by Genachowski
and 60 by his chief of staff , Edward Lazarus. (Genachowski
is a former Harvard Law classmate and friend
of President Obama.) “The large volume and timing
of these meetings gives the appearance that they
are more than coincidental,” Issa wrote last week to
Genachowski, according to the letter.

Issa is concerned that if the conversations were about
network-neutrality rules, which would have been an
open proceeding by the end of October 2009, they
should have been made part of the public record in ex parte filings, but weren’t.

There was something of a sting in the tail to the letter’s
closing language: “The Committee on Oversight
and Government Reform is
the principal oversight committee
of the House of Representatives
and may at ‘any
time’ investigate ‘any matter’
as set forth in House Rule X.
We request that you provide
the requested documents
and information relevant to
these inquiries as soon as
possible, but no later than 5
p.m. on April 6.”

A source close to Issa,
speaking on background, said the request remained
an inquiry, rather than the launch of an investigation.

Issa’s letter was a response to a letter Genachowski
sent to him on Feb. 23. In that letter, Genachowski explained
to Issa that FCC attorneys were not aware of any
violations of ex parte rules concerning conversations
agency officials may or may not have had with the administration
about its network-neutrality rulemaking.

Genachowski had also told the chairman of the
House Committee on Oversight and Government Reform
that any talks had before Oct. 22, 2009, would not
have been subject to disclosure rules in any event.

“We worked with both Congress and the executive
branch as we carried out Congress’ mandate to create
a National Broadband Plan that would improve our
communication networks and advance public safety,
education, health care and energy efficiency,” an FCC
spokesman told MCN.

“Eddie [Lazarus] had the White House portfolio for
the National Broadband Plan,” said Blair Levin of the
Aspen Institute, who oversaw the plan and is a former
FCC chief of staff . “That made Lazarus the point person
on the elements of the plan that involved other federal
agencies.

“Given the number of issues we touched on or that implicated
executive action (spectrum and budget, public
safety, health care IT, education tech, open government,
etc,” Levin told MCN. “It does not strike me as a high number
[of White House visits]. I am sure it was more than I did
when I was chief of staff , but the plan was a unique process
in many ways, including multi-agency coordination.”

Issa had written twice asking about the issue over the
course of more than a year, citing reports that “Obama
administration officials had knowledge of and potentially
contributed to crafting of these proposed regulations
[now approved regulations].” In his earlier letters,
Issa also pointed to the fact that on Sept. 21, 2009, both
Genachowski and the president had separately, and almost
simultaneously, announced the plan to propose
net-neutrality rules. That, he said, would be a violation
of ex parte rules, which he said would require that coordination
to be publicly disclosed; it was not. He also
called it a “serious breach of the independent proceedings
of the FCC.”

Genachowski countered that the Communications
Act allows the chairman to represent the commission in
meetings with other government officials and agencies.
He also said the relevant ex parte procedural disclosure
rules generally don’t apply until the agency releases a
notice of proposed rulemaking.

But Issa is now looking for explanations on any conversations
held after that. The FCC spokesman had no
comment on the substance of any of the conversations
with the White House.

INFORMATION PLEASE

In a letter to FCC chairman Julius Genachowski, House
Oversight and Government Reform Committee Chairman
Darrell Issa said he wanted the following information on
the FCC’s contacts with the White House by April 6, if not
sooner:

• A log of all meetings between between and among
FCC staff, and/or consultants and White house staff and/
or consultants, including a list of all participants and topics
discussed.

• All documents, including e-mails between and among
White House staff and/or consultants and FCC staff
and/or consultants relating to the net neutrality rules.

• The information and documents previously requested
in the committee’s Nov. 13 2009 letter.

SOURCE: Staff of Rep. Darrell Issa

March