If the first of this week's three Hill hearings on the FCC's network neutrality hearings is any indication, they will divide along political lines, with Republicans hammering the process and the result, and Democrats defending it.
In an almost-three-hour grilling, Wheeler, sporting a green tie for St. Patrick’s Day and a steely eye to meet the gaze of troubled Republicans, defended the decision, which he called an independent one, that the President "piled on" rather than directed, along with members for Congress and the public,.
House Oversight and Government Reform Committee Chairman Jason Chaffetz (R-Utah) set the tone of the hearing by asking whether the chairman had given the White House a copy of the draft order before the final vote. Wheeler said no.
Wheeler said that he had had about 10 meetings with the White House during the time the FCC was working on net neutrality rules (starting from when the May 15 comment period opened on his Sec. 706 proposal), but noted they touched on a variety of topics, including spectrum policy and auctions and trade policy.
Several of those meetings were with Jeffrey Zients, assistant to the President for economic policy, the same official who visited with Wheeler in advance of the President's Nov. 10 statement in support of Title II. But Wheeler said that the November meeting at the FCC was the only time Zients had said specifically what the President wanted, and filed the ex parte as a result.
Chaffetz said that an ex parte filing had only been made on one of those meetings. Wheeler pointed out that the ex parte rules are clear that only attempts to influence a specific docket were required to have an ex parte notification, as was the case with the statement calling for Title II. Wheeler pointed out that there has been no requirement dating from the Bush Administration that an ex parte be filed except in the case of trying to influence a decision.
Chaffetz shot back asking whether Title II was not discussed in any of those other meetings. Wheeler said he was not sure but, there was nothing that would have triggered the need for an ex parte. "The Administration was very scrupulous in making clear that I was an independent agency," Wheeler said. In fact, he said, that was the subject of his meeting with the President when he was first appointed. The President said he would never call him and that he was independent.
Chaffetz said the chairman had declined an earlier request, before the rule was adopted, to appear before the committee, or to send it documents, which he called a troubling double standard. Wheeler shot back, and pointed out that he did agree to come this time. Chaffetz broke in again pointing out he had talked to the White House before the vote, but not the committee.
Wheeler cut back in to say the committee had only given him a week's notice. He said at the time that he would look forward to appearing before the committee in the future.
"I didn't believe you then and I don't beleive you now," Chaffetz said. And the tone was set, at least from the Republican side. They talked about secret instructions from the White House, asked what Wheeler meant by a "hmmmmmm" in one e-mail, and suggested that the fact that protestors showed up at Wheeler's home the same day the President came out for Title II could have been a coordinated with the FCC.
Rep. Peter Welch (D-Vt.) was the first Democrat to question Wheeler. He gave Wheeler the chance to say his view of the order had evolved toward Title II. Welch spotlighted the tone of the proceedings, saying it felt like a "what did you know and when did you know it" Watergate hearing. The FCC process, he suggested, was a "back and forth" process in which the FCC listened to the 4 million comments, Congress, "and, oh, incidentally, the President of the United States, who is elected by everybody."
Welch also pointed out that President Ronald Reagan once met with "the commissioner" for 45 minutes on a previous matter. He asked if President Obama had ever summoned Wheeler to the White House for a similar meeting on Title II.
Wheeler said no, that the White House had never summoned him to discuss anything the commission is doing.
Democrats continued to make the point that previous Presidents had talked with previous chairmen, and had indicated their preference for policies, It was only when they did the latter that is was required to be notice in an ex parte.
Welch also teed up questions that allowed Wheeler to reiterate some points from his prepared testimony, including that the capital markets had "zero" reaction to the President's Title II statement.
After Republicans had probed and hammered Wheeler on contacts with the White House, committee ranking member Elija Cummings (D-Md.) pointed out the Republican comissioner Michael O'Rielly had solicited edits for a net neutrality op ed in The Hill from a trio of outside parties, including former Republican commissioners Rob McDowell and Harold Furchtgott-Roth, and those had not been ex-parted. Cummings said he was not suggesting there was anything wrong with that, just as he thought there was nothing wrong with Wheeler receiving input from the White House.
O'Rielly issued the following statement after the hearing: "As discussed at today’s Oversight and Government Reform Committee hearing, my staff shared my draft op-ed with outside parties. But there was no need for ex parte filings because they were commenting on my personal views and advocacy, not lobbying or expressing views to the Commission in any capacity. Moreover, these communications did not have any effect on my ultimate decisions or the outcome of the FCC proceeding, which was radically different from what I discussed in my op-ed and from what the Commission initially proposed."
Rep. John Mica (R-Fla.), invoking John Kerry's Iraq War stance, said he thought the crux of the issue was figuring out why Wheeler was against the President's Title II position before he was for it. He cited an e-mail from the chief of staff to Sen. Harry Reid (D-Nev.) that he called an attempt to keep Wheeler's previous position intact.
The e-mail said: "Spoke again with the White House last night and told them again to back off Title II" and "the problems it creates for us." Wheeler said he remembered the e-mail, but insisted his was an evolutionary approach to Title II and that he was not against it before he was for it. "Before the President made his comment we were working on a Title II and Sec. 706 solution. After the President made his comment we delivered a Title II and Sec. 706 solution."
Mica said he thought that Zeints had strong-armed Wheeler. "I mean it is pretty evident."
What was clearly evident was that the Republicans are not going to let up on the Title II issue anytime soon.