The Increasing Politicization of the FCC

In the wake of the historic net-neutrality decision, an independent agency is more polarized than ever.

FCC Commissioner Ajit Pai speaks as Commissioner Mignon Clyburn(C) and FCC Chairman Tom Wheeler (R) look on during a meeting of the commissioners May 15, 2014 at the FCC in Washington, DC. (National Journal)

The Federal Communications Commission is no stranger to controversial issues—remember the ruckus over the Janet Jackson Super Bowl halftime show? But net neutrality has taken things to a new level, and that has people wondering if the agency is politicized beyond repair.

That hostility was on full display Thursday as the commission voted 3-2 to approve sweeping net-neutrality regulations to ensure all Internet traffic is treated equally. The three Democratic commissioners celebrated an action that they said would protect Internet freedom, and the two Republicans accused their colleagues of seizing control of the Internet.

Also on Thursday, the Commission voted 3-2 to strike down laws in two states restricting cities from providing Internet service to their own residents. The Democrats argued that the move would help more people get access to high-speed Internet, while the Republicans decried the assault on states' rights.

"I do think it is more polarized than I've ever seen," said Robert McDowell, a Republican who served as an FCC commissioner from 2006 to 2013. "Having said that, if we're judging it purely from today, that probably skews the emotion of the moment."

The "game-changer," McDowell said, was President Obama's decision last November to intervene in the net-neutrality debate and urge the FCC to enact the "strongest possible" rules. That statement turned the FCC into a pawn in a high-profile partisan battle, he said.

"The president did not do the institution any favors by doing that," McDowell said. "It pulls the mask of independence off of the agency."

Republican Commissioner Ajit Pai, who has drawn increasing media attention as the voice fighting Democratic Chairman Tom Wheeler on the net-neutrality action, wasted no time Thursday tying the move to Obama.

"The Commission's decision to adopt President Obama's plan marks a monumental shift toward government control of the Internet," Pai warned. "It gives the FCC the power to micromanage virtually every aspect of how the Internet works. It's an overreach that will let a Washington bureaucracy, and not the American people, decide the future of the online world."

Earlier this month, Pai tweeted a picture of himself holding a 332-page draft of the net-neutrality order (in front of a framed portrait of Obama), and held his own press conference in the FCC's meeting room, where he claimed that Wheeler was misleading the American people about the plan's details.

Whether the bad blood will spill over into other issues remains to be seen. The FCC, created about 80 years ago to be an independent and expert agency for regulating the communications industries, has numerous significant issues to tackle in the months and years ahead. The agency must hold a complex multibillion-dollar airwave auction that will restructure both the TV and cellular industries, and oversee the transition of phone networks to digital technology. The commission must also rule on Comcast's bid to buy Time Warner Cable and AT&T's planned purchase of DirecTV.

According to Harold Feld, the senior vice president of Public Knowledge and a net-neutrality advocate, the real culprit behind the nastier tone of FCC debates is not Obama, but Ajit Pai.

"Pai has been a man of hyperbolic hysterics as a way of driving the agenda since he got there," Feld said, pointing to Pai's advocacy against net neutrality and his efforts last year to sound the alarm about an FCC study on consumers' information needs. Pai called the study, which would have asked reporters questions about their jobs, a "threat to the First Amendment." Wheeler eventually pulled the study in the face of a conservative backlash.

"When you have a bully, it's not like you have a problem with the school yard—you have a bully," Feld said.

For their part, the FCC commissioners don't think the net-neutrality fight will prevent them from working together on other issues.

Wheeler acknowledged Thursday that his Republican colleagues have "strongly held beliefs," but he insisted that he expects future negotiations will continue to be a "collegial process." He noted that many FCC actions are still made on a unanimous basis.

"I don't see the well as being poisoned," Pai said. "I hope the chairman doesn't bear me any ill will from one item to the next. Whatever is on tap next, we're going to approach it with an open mind."

"I look forward to continuing my friendship with Chairman Wheeler even if we disagree on items," said Michael O'Rielly, the other Republican commissioner.

But he also predicted that the commissioners will continue to be bogged down in partisan fights over net neutrality as they try to interpret the vague language in the new regulations.

"My old boss Senator Jon Kyl used to say, 'If I don't ask you to violate my principles and you don't ask me to violate my principles, there's plenty in the middle we can all agree on,'" O'Rielly recalled. "Here, they have not only asked us to violate our principles, they ran over our principles."