Newly released emails reveal the internal wrangling between Congress and the Federal Communications Commission in 2014 over the agency's controversial Internet regulations.
The emails, made public for the first time last week, 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.
The 162-pages of unredacted FCC emails were released by the House Oversight Committee last week as part of a broader report criticizing the federal government’s open records process. The emails were only a random sample of about 10 percent of all the documents that the House committee received, which the FCC previously gave to journalists in heavily redacted form.
While there does not appear to be any bombshells, the emails 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 emails 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 voting on 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. The net neutrality rules are now being challenged in court.
Eventually in a divided vote last year, the agency voted to reclassify Internet service as a common carrier under Title II of the Communications Act. The increased authority, which critics compared to utility-style regulations, was meant to give the FCC more power to prevent Internet service providers from prioritizing some Internet traffic over others.
Here are eight moments highlighting how the agency made it to that decision.
“MARKEY IS GOING TO BE KEY”
The FCC’s then-director of legislative affairs, Sarah Morris, thought Sen. Ed MarkeyEd MarkeyEquilibrium/Sustainability — Presented by Southern Company — Pledged money not going to Indigenous causes Senate Democrats call on Biden to push for COVID-19 vaccine patent waivers at WTO The Hill's Morning Report - Ins and outs: Powell renominated at Fed, Parnell drops Senate bid MORE (D-Mass.), Rep. Anna Eshoo (D-Calif.) and House Democratic Leader Nancy Pelosi (D-Calif.) 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, shortly after news broke that the FCC was considering a plan that allowed “fastlanes,” the FCC’s top lawyer suggested canceling a meeting with Markey. Morris, however, insisted that “we talk to him sooner rather than later, though. Markey is going to be key.”
“OUR WORDS ARE BEING USED AGAINST US”
In April 2014, Wheeler sent an email 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.
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.” He linked to an article that was “another example of how our own words are being used against us.”
“I THINK THEY CAN BE PERSUADED”
In May 2014, Former Rep. Henry Waxman (Calif.), the lead Democrat on the Energy and Commerce Comittee, was making a late press to convince the FCC to adopt a proposal that used Title II as a fallback for net neutrality rules.
In an internal email, the FCC’s director of legislative affairs Sarah 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.
“WELL DONE”: ESHOO BACKS OFF DELAY THREAT
One email shows Morris, the FCC’s director of legislative affairs, convincing Eshoo not to publicly press for a delay amid concerns about the proposed rules. FCC Chairman Tom Wheeler responded to the news by saying, “Well done.”
“DON’T SEND THIS RESPONSE TO THE REPRESENTATIVE”
In one long email chain between FCC lawyers and economists, the FCC staff debated a request from Sen. Marsha BlackburnMarsha BlackburnChina draws scrutiny over case of tennis star Peng Shuai Sunday shows preview: Boosters open to all US adults; House Dems pass spending plan on to Senate Photos of the Week: President Biden, Kenosha protests and a pardon for Peanut Butter MORE (R-Tenn.) 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.”
When Blackburn’s letter went public, one Republican FCC staffer said the majority and Wheeler are “now on notice.”
In May 2014, a few days before the FCC would vote on proposed net neutrality rules, GOP commissioners were complaining that they had not yet seen the final draft. Both Republican commissioners have long said they are some of the last to see agenda items, sometimes only shortly before a vote.
According to emails, the delay in Republicans seeing the draft came because Democratic Commissioner Mignon Clyburn was requesting changes. When the FCC chief-of-staff Ruth Milkman heard that a Republican aide had made a pithy comment to the press, she responded “cute…I would expect the new redline to go out on the chain later today.”
“ANALYSTS HAVE TO WRITE SOMETHING”
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 Wheeler. He blew it off by saying, “no big deal. Analysts have to write something.”
“THIS MAY BE THE SOURCE OF SOME OF THE CONFUSION”
One email 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 Clyburn, said she had heard increasing concerns about it. She speculated the rumor got started with an op-ed from GOP Commissioner Michael O’Rielly.