A Little Part of the First Amendment Dies at FCC Oversight Hearing

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Round-Up for the Week of March 6 - 9, 2017

The Senate Commerce Committee held a hearing on oversight of the Federal Communications Commission on Wednesday, March 8. A good time was had by all. The committee’s senators highlighted a wide range of issues during the 2+ hour hearing. Here we focus on the First Amendment, broadband deployment, network neutrality, privacy, and the future makeup of the FCC.

First Amendment Up First

Pai Then: FCC Commissioners have the duty to speak out whenever Americans’ First Amendment rights are at stake.

In an op-ed published in The Hill, former-FCC Commissioner Michael Copps urged new FCC Chairman Ajit Pai to speak out in defense of the First Amendment and freedom of the press. As a FCC Commissioner, Pai said, “In my view, anyone who has the privilege of serving at the FCC—any preacher with a pulpit, if you will—has the duty to speak out whenever Americans’ First Amendment rights are at stake.” With President Donald Trump calling journalists “the enemy of the American people”, Copps and others are looking to the nation’s top communications regulator to declare the government has no place pressuring media organizations.

Pai Now: “I don’t want to wade into the larger political debates."

In his opening remarks, Committee Ranking Member Bill Nelson (D-FL) said, “Ultimately, for this senator, the success or failure of the commission rests not on the fulfillment of special interest wish lists, but on how those who are least able to protect themselves have been treated and whether first amendment rights, including those of journalists, are vigorously protected.”

During the hearing, Senators Tom Udall (D-NM) and Maggie Hassan (D-NH) pressed Chairman Pai to affirm his support of a free press, but Pai repeatedly refused to directly answer whether he agreed or disagreed with the President. Instead Pai said, “I don’t want to wade into the larger political debates, but I will simply reaffirm the quotes that you offered from last year and the year before.”

Sen. Udall pressed Pai saying, “You refuse to answer that, about the media being the enemy of the American people.” Later Sen Hassan also returned to the issue saying, “I’d just like to give you another chance, because it seems to me that if you’re an outspoken defender of the free press, that should be a pretty easy question for you.”

“No,” Pai answered. “I believe that every American enjoys the protections of the First Amendment offered by the Constitution.” Sen. Hassan said she wished she had gotten a different response.

Sen. Udall also asked Pai about a comment that Trump adviser Stephen Bannon made to the New York Times, that the media should “keep its mouth shut and just listen for a while.”

“I am not going to wade into the larger political debates,” Pai repeated, but added that he had “certainly not made comments like that.”

Pai Then:"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."

Responding to questions about White House influence on the FCC -- an issue Pai was also outspoken about as a commissioner -- Pai said “absolutely” the FCC will operate independently. But asked about his March 6 meeting with President Trump, Chairman Pai refused to disclose what was discussed at the meeting.

Former FCC staffer Gigi Sohn said, “Since Chairman Pai was so outwardly critical of Chairman Wheeler’s relationship with the White House and because he has prided himself on being transparent, I think he should publicly reveal the specifics of his conversation with President Trump."

Asked if he would resist "any attempt by the White House to use the FCC to intimidate news organizations," Pai said that he has consistently said that the FCC is independent and he would render decisions based on law and precedent and what he and his colleagues think is in the public interest. Asked if he would immediately report to the committee if the White House contacts him about taking any favorable or negative action regarding any media or communications business, Pai said he would follow all the appropriate ethical requirements that would apply.

Pai Now: "I am not at liberty to say" what I discussed with President Trump. "I leave that to the White House to disclose."

After the hearing, Free Press President and CEO Craig Aaron said, “Ajit Pai’s refusal to speak out against attacks on the press is outrageous and dangerous. We’re entering uncharted waters when the nation’s top media regulator — head of the allegedly independent agency that guards the public airwaves — won’t stand up for press freedom. In the past, Pai has spoken out repeatedly about his support of free speech, but he’s tongue-tied when it comes to questioning Donald Trump’s insistence that the media is the enemy of the people. As someone with immense power over media companies, we need to know where he stands. This week, Chairman Pai was renominated for a second term at the FCC. No senator should consider reappointing him unless and until he stands up for press freedom, denounces the characterization of the media as enemies of the public, and can demonstrate he is fit for the job.”

The Importance of Broadband Deployment

Committee Chairman John Thune (R-SD) emphasized Pai’s commitment to bridging the digital divide saying “this is a goal he and I both share.” And this was issue #1 in Pai’s testimony. Pai warned of the real and growing divide noting “there are still too many parts of this country where broadband is unavailable or unaffordable.”

Pai outlined tools available to the FCC to address the digital divide:

  • More wisely applying federal funds under the Universal Service Fund programs.
  • Revising regulations that deter the private sector from investing in next-generation networks.
  • Creating deployment-friendly best practices to aid state and local governments, as well as the private sector.

“With these tools, we could bring down the cost of deploying broadband and create incentives for providers to connect consumers in hard-to-serve areas,” Chairman Pai testified.

But Chairman Pai took some criticism during the hearing including from Ranking Member Nelson who noted that one of Pai’s early actions threatened the expansion of broadband into the homes of low-income Americans by limiting the effectiveness of new Lifeline program reforms.

Re-debating Network Neutrality and Privacy

Network neutrality and privacy proved to be the most partisan issues of the hearing with Republican senators critical of the rules adopted during FCC Chairman Tom Wheeler’s term and Democrats pressing to retain the rules. Chairman Pai has called the FCC’s net neutrality rules – and reclassification of broadband Internet access service as a telecommunications service – a “mistake.”

“While I am sure there are other actions that may need to be revisited,” said Chairman Thune in his opening remarks, “I do think we need to hit reset on both of these items. And I’m glad to see the FCC has already started that process by staying certain parts of the rules that were set to go into effect last week.” Thune reiterated his intent to fashion a bill to provide long-term consumer protections for the Internet. “But since we don’t yet have agreement on that front, despite good will on both sides, there’s no reason for the FCC to hold off doing what is necessary to rebalance the FCC’s regulatory posture under current statutes.”

Sen. Nelson, however, was critical of Pai’s move that will prevent “millions of broadband subscribers from receiving key information about the rates, terms, and conditions of their service.”

Sen. Ted Cruz (R-TX) called the FCC’s Open Internet/net neutrality rules the biggest threat to the Internet. Citing debunked research on broadband investment since the rules were enacted, he said net neutrality does not put consumers first. Cruz failed to acknowledge that:

  • AT&T recently claimed to the country's leading investor of capital for each of the last five years
  • Moreover, AT&T’s President of Network Operations said, “In 2015/16, we’re going to deploy about 250% of the capacity that we did in 2013/14, and we’re going to do it for 75% of the cost.”
  • Overall, U.S. network investment in 2015 was $76 billion

Concerns that the net neutrality rules would hurt the broadband market seem to be unfounded, said Sen. Cory Booker (D-NJ). "A lot of gloom and doom was predicted if this was to happen, but clearly, the sky's not fallen," he said. "Businesses have continued to innovate in this space."

Chairman Pai largely avoided talking about his net neutrality plans during the hearing, and Republican senators avoided asking him about it. But FCC Commissioner Mignon Clyburn called on the FCC to keep the rules and take other actions that put "consumers first." "Will there be a cop on the beat in a broadband world?" she asked. "If not the FCC, who will consumers turn to when their broadband provider throttles their favorite website? And what if there is a billing dispute? Poor service? Privacy concerns?"

When Will We Have a Full Commission?

Each of the three sitting FCC commissioners testified at the hearing, but two seats on the commission remain unfilled – and without nominations from the President. On March 7, President Trump nominated Chairman Pai for a new term on the FCC. But the President also recently withdrew the nomination of former-FCC Commissioner Jessica Rosenworcel who was approved by the Senate Commerce Committee during the last Congress, but never received consideration by the full Senate.

“I want to express my continued frustration that Jessica Rosenworcel is not sitting before us today as a commissioner,” said Sen. Nelson. “The failure to confirm her last Congress, frankly, is a black mark on the Senate. And the president’s decision to pull her nomination last week was truly unfortunate. I can only hope that the White House will see the error of its ways and re-nominate this impressive public servant for another FCC term once again. And if that happens as it should, it is imperative for the Senate leadership to live up to its promise and confirm her nomination with all dispatch.”

Chairman Thune said, “I would note for my colleagues that we will be busy this year with FCC nominations. Chairman Pai’s term has expired, and he is now in his hold-over year, but just yesterday the President nominated him to another full term. There are obviously two vacant seats on the Commission right now. And Commissioner Clyburn’s current term also expires at the end of June. Once the President makes his nominations for the FCC, it is my hope that the Senate will move swiftly to review and confirm the President’s appointees. The most important thing, however, is that we not allow the FCC to fall below a functioning quorum. I know no responsible person would willingly deprive the agency of its ability to protect consumers and the marketplace, and ensuring the agency is sufficiently constituted will be a priority of mine this year.”

Quick Bits

Weekend Reads (resist tl;dr)
coffee iconPutin, Politics, and the Press (Columbia Journalism Review)
coffee iconPutin destroyed Russia’s independent press. Trump seems to want the same. (Washington Post)
coffee iconWikiLeaks Releases Trove of Alleged C.I.A. Hacking Documents (New York Times)

Events Calendar for March 13-17, 2017

ICYMI From Benton
benton logoBlame It On The Barcelona (Or Alternative Titles To Celebrate Alternative Facts), Robbie McBeath
benton logoFirst Lifeline, Now Broadband Program for Schools and Libraries in the FCC’s Crosshairs, Gigi Sohn
benton logoDefending the Indefensible: Chairman Pai’s Lifeline Reversal Will Widen the Digital Divide, Gigi Sohn
benton logoWhen the Pai FCC Abandons the Public Interest, Who You Gonna Call?, Adrianne Furniss
benton logoThe First Casualty is the Truth: Trump's Running War With the Media, Kevin Taglang
benton logoThe Selling of Ajit Pai, FCC Chairman and Folk Hero, Robbie McBeath

By Kevin Taglang.