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March 2016

Regulating the Internet: How the White House Bowled Over FCC Independence

This report details how the Federal Communications Commission arrived at its decision to regulate the Internet like a public utility only after the President Barack Obama called for such a heavy-handed regime and how, in the process, career FCC staff raised serious administrative law questions about the shift. “This investigation has convinced me that the White House overrode the FCC’s decision-making apparatus,” said Senate Homeland Security and Governmental Affairs Committee Chairman Ron Johnson (R-WI). “It is concerning that an independent agency like the FCC could be so unduly influenced by the White House, particularly on an issue that touches the lives of so many Americans and has such a significant impact on a critical sector of the United States economy.” Details of the report:

  • Prior to the White House’s announcement in support of Title II reclassification, the career, professional staff at the FCC worked over a weekend to deliver FCC Chairman Tom Wheeler a draft Open Internet Order, adopting a “hybrid approach,” to be considered on the FCC’s December 2014 Open Meeting. Immediately after President Obama's statement, FCC staff expressed confusion as edits were suddenly delayed and the rapid timetable for completing the draft Open Internet Order was “paused.” At the conclusion of the pause, Chairman Wheeler instructed FCC staff to change course and draft an order that would follow the President’s proposal of a Title II reclassification.
  • The FCC staff raised concerns about the agency following proper notice-and-comment procedure, as required under the Administrative Procedure Act. Specifically, the FCC’s career professional staff advised that the record to support Title II reclassification for both fixed and wireless broadband was thin and needed to be bolstered. Despite this recommendation, the FCC chose not to seek additional public comment, and proceeded with the president’s preferred policy outcome.
  • Over the course of the committee’s investigation, the FCC refused to provide key responsive documents. Moreover, in the e-mails that were provided to the committee, it appears that there was an attempt by some to thwart transparency and avoid ex parte filings.

FCC Commissioner Ajit Pai said, "The report released yesterday by Chairman Ron Johnson of the Senate Committee on Homeland Security and Government Affairs paints a devastating portrait of the process that led to the adoption of President Obama’s plan to regulate the Internet on February 26, 2015...Whether you support or oppose Internet regulation, this has been a sad chapter in the history of the FCC. Moving forward, the Commission must recommit itself to being a truly independent agency that makes decisions based on the facts and the law, not on the whims of any White House."

FCC Commissioner Michael O'Rielly said, “I appreciate the work of Chairman Johnson and the Senate Homeland Security and Governmental Affairs Committee to shed additional light on the details of the Commission’s abrupt about-face on Title II. It crystallizes what most people knew in their hearts: the facts and process were thrown overboard in order to capitulate to the improper influence of the Administration. The final order is a discredit to the agency’s independence and the rule of law. Whether through the courts or a future Commission, this illegitimate net neutrality regime must go.”

Intelligence Chiefs Begin Long Push to Renew Data Collection

Intelligence officials are already campaigning in Congress to renew the law that serves as the basis for US federal intelligence agencies to collect information on foreign individuals. Section 702 of the Foreign Intelligence Surveillance Amendments Act expires in December 2017. But because of its controversial history, spy agency heads are beginning to rally support for its renewal now. The provision permits the director of national intelligence and attorney general to target certain non-Americans outside the US and monitor their communications. With it, agencies can spy on foreigners who are believed to be threats to the US. Critics have hit back against the provision because it also serves as the basis for the National Security Agency’s bulk data collection program. That’s the program that Edward Snowden revealed was collecting information on millions of Americans.

At an open House Intelligence Committee hearing, the intelligence chiefs began making their case for the renewal of Section 702. Central Intelligence Agency Director John Brennan said, “702 is a critical tool for CIA for the collection for foreign intelligence as well as our operational activities.” Director Brennan added, “There have been numerous instances over the years where 702 has been instrumental in our ability to uncover and also help disrupt activities that are a threat to our national security interests.” He declined to elaborate further in an unclassified context. Director of National Intelligence James Clapper corroborated that sentiment and added that he and the intelligence community are working to get Congress on their side.

Study reveals surprising diversity among public TV viewership

[Commentary] Though public television has long labored under the onus that its audience largely consists of older, upscale white viewers, our recent study of cumulative viewing of local stations demonstrates that this criticism is not warranted. The 2015 study, Know and Grow, was funded by the Corporation for Public Broadcasting (CPB) and powered by new Nielsen software that allowed us to look at how viewers in 56 metered markets watch television on a daily basis. It revealed a very diverse audience for Public TV stations in those markets, both in terms of age of the viewers and their ethnicity. In one community, minority viewers watch more public television than do whites. As the study’s title suggests, we designed the research to deliver insights about stations’ viewership that could then be used to help them grow their audiences.

The biggest surprise from our early findings was the sizable cumulative audience (cumes) of minority viewers of some stations. For example, in Las Vegas (NV) 25 percent of the Hispanic households in the market were in the weekly household cume of Vegas PBS, while the Hispanic monthly cume was 44 percent.

[David and Judith LeRoy are co-founders of TRAC Media Services, a research company that provides audience analysis and programming services for public TV stations. Craig Reed is TRAC’s executive director]

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