E-mails pull back the curtain on struggle over Network Neutrality rules

Newly released e-mails reveal the internal wrangling between Congress and the Federal Communications Commission in 2014 over the agency's controversial Open Internet/network neutrality regulations.

The e-mails show FCC Chairman Tom Wheeler complaining that the agency’s “own words are being used against us” in meetings with congressional allies. At other points, the documents show FCC aides persuading lawmakers to refrain from publicly calling for a delay in voting on the rules. While there does not appear to be any bombshells, the e-mails provide a rare inside look at the agency and the pressure it was under as it developed controversial rules to ensure all Internet traffic is treated equally. Many of the e-mails span from April and May of 2014, when the FCC was considering scaled back rules, as opposed to the sweeping ones that were eventually issued. At the time, the FCC was considering proposed rules that net neutrality advocates said would allow Internet “fast lanes” for those willing to pay. Months later, the agency pivoted to a stricter regulatory scheme, which opponents trace back to pressure from the White House and others.

Here are some moments from the months-long debate captured in the released e-mails:

• The FCC’s then-director of legislative affairs, Sarah Morris, thought Sen Ed Markey (D-MA), Rep Anna Eshoo (D-CA) and House Democratic Leader Nancy Pelosi (D-CA) were key to getting support in Congress for an early version of net neutrality rules, which many advocates criticized as not going far enough.
• In April 2014, Chairman Wheeler sent an e-mail to his top aides suggesting they were doing a poor job describing their proposed rules. The plan was meant to require a “baseline” level of Internet service, but could allow for some commercially reasonable “fastlanes” for Web companies willing pay. Chairman Wheeler said, “When I talk to Members [of Congress] they are reading our statement about baseline back to me as us confirming that service will be diminished.”
• In May 2014, Former House Commerce Committee Chairman Henry Waxman (D-CA) was making a late press to convince the FCC to adopt a proposal that used Title II as a fallback for net neutrality rules. But Morris said it did not make sense politically because the agency would get all the political heat of Title II without the immediate benefit. She concluded that “I think they can be persuaded” to abandon their push if she hinted that it would harm the chances of getting other Democratic commissioners to vote with Wheeler.
• Morris convinced Rep Eshoo not to publicly press for a delay amid concerns about the proposed rules.
• The FCC staff debated a request from Sen Marsha Blackburn (R-TN) for a cost-benefit analysis of the proposed Internet rules. Not doing the analysis has been a major criticism from opponents. The FCC’s then-chief economist Tim Brennan said, “My impression is that policies designed to make markets more competitive rarely are subject to cost-benefit tests, whether it’s here, at the Antitrust Division, or the FTC.” Later he added, “If it isn’t obvious, don’t send this as a response to the Representative.”
• In May 2014, media analyst George Reed Dellinger speculated that the FCC’s net neutrality work would be little more than a “face-saving effort.” The analysis was forwarded from Democrats on Capitol Hill to the FCC, eventually making it to Chairman Wheeler. He blew it off by saying, “no big deal. Analysts have to write something.”
• One e-mail shows FCC lawyer Stephanie Weiner shooting down the idea that proposed net neutrality rules could regulate content on websites such as Google or Facebook, rather than just the Internet service providers that transfer that Web traffic. Rebekah Goodheart, a legal adviser for FCC Commission Mignon Clyburn, said she had heard increasing concerns about it. She speculated the rumor got started with an op-ed from FCC Commissioner Michael O’Rielly.