REGULATING THE INTERNET:
HOW THE WHITE HOUSE BOWLED OVER FCC INDEPENDENCE
A Majority Staff Report of the
Committee on Homeland Security and Governmental Affairs
United States Senate
Senator Ron Johnson, Chairman

February 29, 2016

 EXECUTIVE SUMMARY
The Federal Communications Commission (FCC or Commission) is an independent
federal agency charged with regulating interstate and international communications. Deriving its
regulatory authority from Congress, the agency is governed by five presidentially appointed
Commissioners from both political parties. This bipartisan structure is intended to ensure that
the agency remains free of partisan political pressure, and independent of the policy aims of the
Executive Branch. Yet, according to a media report in February 2015, the Obama
Administration sought to impose its will on the FCC’s so-called Open Internet (OI) proposal. As
detailed below, after the Obama White House weighed in, the FCC changed course and executed
the President’s preference.
On February 4, 2015, FCC Chairman Tom Wheeler announced a plan to reclassify
broadband as a telecommunications service subject to Title II of the Communications Act of
1934 (47 U.S.C. 201 et. seq.). This announcement represented a shift from the FCC’s previous
light-touch approach of classifying broadband as an information service, and Chairman
Wheeler’s own statement in February 2014 that the FCC would use a roadmap outlined by the
U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) in the court’s ruling in Verizon v. FCC
(740 F.3d 623 (2014)) that did not involve the reclassification of broadband as a common carrier
service. 1 Concurrent with Chairman Wheeler’s announcement, the Wall Street Journal reported
that the White House may have inappropriately influenced the FCC decision to regulate
broadband under Title II. 2 Specifically, the Journal noted “unusual, secretive efforts inside the
White House, led by two aides.” 3 Notably, in November 2014, President Obama had weighed in
on the debate, imploring the FCC to “reclassify consumer broadband service under Title II ...” 4
On February 9, 2015, Senator Ron Johnson, Chairman of the Senate Committee on
Homeland Security and Government Affairs and a senior member of the Senate Committee on
Commerce, Science and Transportation, initiated an inquiry into the FCC’s OI Order in light of
the information reported by the Journal. 5 In response to the Chairman’s request, the FCC
produced documents over the span of ten months and provided a staff briefing with key FCC
staff members involved in the rulemaking. Nonetheless, the FCC withheld drafts of the OI
proposal, including the draft that the FCC was in the process of finalizing just prior to the
1

FED. COMMC’NS COMM’N, Statement by FCC Chairman Tom Wheeler on the FCC’s Open Internet Rules (Feb. 19,
2014), available at https://www.fcc.gov/document/statement-fcc-chairman-tom-wheeler-fccs-open-internet-rules.
2
Gautham Nagesh & Brody Mullins, How White House Thwarted FCC Chief on Internet Rules, WALL ST. J., Feb.
4, 2015.
3
Id.
4
WHITE HOUSE, November 2014 The President’s message on net neutrality, https://www.whitehouse.gov/netneutrality (last visited Feb. 22, 2016).
5
Appendix C, Ex. 1, Letter from Ron Johnson, Chairman, S. Comm. on Homeland Sec. & Gov’t Affairs, to Tom
Wheeler, Chairman, Fed. Commc’ns Comm’n (Feb. 9, 2015).

Majority Staff Report
Committee on Homeland Security and Governmental Affairs
United States Senate

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 President’s statement. By withholding these key drafts, the FCC unnecessarily slowed and
burdened the Committee’s fact-finding regarding the process by which the FCC adopted its OI
Order.
The investigation initiated by Chairman Johnson uncovered serious concerns with the
President’s undue influence on the FCC’s decision-making process, 6 and also with the agency’s
compliance with the Administrative Procedure Act (APA). Specifically, the investigation found:
•

Although President Obama’s statement was filed in the FCC’s record along with millions
of other commenters, its influence was disproportionate relative to the comments of
members of the public. 7 Prior to the White House’s announcement, the career,
nonpartisan, professional staff at the FCC worked over the weekend to deliver Chairman
Wheeler an OI draft order to be considered on the FCC’s December 2014 Open
Meeting. 8 Immediately after the President’s statement, FCC staff expressed confusion as
edits were suddenly delayed and the rapid timetable of completing the draft OI Order was
“paused.” 9 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. 10

•

The FCC staff raised concerns about the agency following proper notice-and-comment
procedure, as required under the APA. 11 Specifically, the FCC’s career professional staff
advised that the record to support Title II reclassification for both fixed and wireless

6

As detailed below, while the President may lobby the FCC in favor of a certain policy outcome, the Justice
Department cautions the White House to avoid the appearance of influence. See infra note 17. From the timeline
presented in this report, a reasonable person could conclude that the FCC would not have ultimately chosen a Title II
reclassification but for the President’s support. See BLACK’S LAW DICTIONARY (10th ed. 2014) (defining “undue
influence” as “The improper use of power or trust in a way that deprives a person of free will and substitutes
another's objective; the exercise of enough control over another person that a questioned act by this person would
not have otherwise been performed, the person's free agency having been overmastered.” (emphasis added)).
7
E-mail from Stephanie Weiner, Fed. Commc’ns Comm’n, to Nese Guendelsberger, Fed. Commc’ns Comm’n &
Matthew DelNero, Fed. Commc’ns Comm’n (Nov. 17, 2014) (describing the president’s announcement as “a
significant development”) (HSGAC-OI-000149).
8
E-mail from Claude Aiken, Fed. Commc’ns Comm’n, to Kristine Fargotstein, Fed. Commc’ns Comm’n (Nov. 7,
2014) (HSGAC-OI-032662) (“We’re still going to try to get something to OCH on Monday, but folks understand
that we can’t address everything if we just get edits Monday morning.”).
9
See e.g., E-mail from Paula Blizzard, Fed. Commc’ns Comm’n, to Travis LeBlanc et al., Fed. Commc’ns Comm’n
(Nov. 10, 2014) (considering how the President’s statement would impact the OI draft) (HSGAC-OI-002796); Email from Kristine Fargotstein, Fed. Commc’ns Comm’n, to Thomas Parisi, Fed. Commc’ns Comm’n (Nov. 10,
2014, 9:48AM) (HSGAC-OI-000220);
10
Briefing by Fed. Commc’ns Comm’n staff with S. Comm. on Homeland Sec. & Gov’t Affairs staff (June 29,
2015).
11
This issue is currently before the U.S. Court of Appeals for the District of Columbia Circuit in United States
Telecom Association v. FCC, No. 15-1063 (D.C. Cir.).

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Committee on Homeland Security and Governmental Affairs
United States Senate

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 broadband was thin and needed to be bolstered. 12 Despite this recommend action, the
FCC chose not to seek additional public comment, and proceeded with the President’s
proposal.
o A draft of the Open Internet Public Notice (PN) dated November 17, 2014,
outlined nine issue areas of concern. 13 Yet, by November 19, it appears that the
FCC’s plan to seek further comment changed. Again, career professional staff
expressed confusion in this redirection and a media aide pointed out to her
colleagues: “NEED MORE ON WHY WE NO LONGER THINK RECORD IS
THIN IN SOME PLACES.” 14
o To justify the FCC’s sudden change in direction and to “beef up the record,” FCC
staff were asked if “additional comments filed since early November [2014]
address some of the outstanding questions, i.e., mobile and forbearance?” 15 FCC
staff were unable to establish an adequate basis to argue that recent public
comments provided a sufficient justification for the Chairman’s shifting
approach. 16 To fill this void, General Counsel Jonathan Sallet solicited meetings
with certain outside groups to support a rulemaking process for Title II
reclassification.
•

Over the course of the Committee’s investigation, the FCC refused to provide key
responsive documents. Moreover, in the emails that were provided to the Committee, it

12

While the FCC’s OI Notice of Proposed Rulemaking did pose a question “on the nature and the extent of the
Commission’s authority to adopt our open Internet rules relying on Title II, and other possible sources of authority,
including Title III,” it tentatively concluded “that the Commission exercise its authority under section 706,
consistent with the D.C. Circuit’s opinion in Verizon v. FCC, to adopt our proposed rules.” Protecting and
Promoting the Open Internet, 79 Fed. Reg. 37448, 37467 (May 15, 2014) (to be codified at 47 C.F.R. 8).
13
E-mail from Claude Aiken, Fed. Commc’ns Comm’n, to Kristine Fargotstein, Fed. Commc’ns Comm’n (Nov. 17,
2014) (Listing issues for the draft public notice to include “classification/reclassification question”, “edge service
classification issue”, “mobile classification issue (reclassify vs. hybrid)”, “CMRS definition issue (reclassify vs.
hybrid)”, “broad forbearance paragraphs”, “mobile-specific forbearance para/sentence”, “mobile policy –
transparency & RNM”, “specialized services”, “interconnection”) (HSGAC-OI-032431-34).
14
E-mail from Kim Hart, Fed. Commc’ns Comm’n, to Jonathan Sallet, Fed. Commc’ns Comm’n & Ruth Milkman,
Fed. Commc’ns Comm’n (Nov. 21, 2014) (HSGAC-OI-18252-53).
15
E-mail from Kim Hart, Fed. Commc’ns Comm’n, to Jonathan Sallet, Fed. Commc’ns Comm’n & Ruth Milkman,
Fed. Commc’ns Comm’n (Dec. 1, 2014) (HSGAC-OI-18251-52).
16
While the court will look to all of the comments submitted during the notice and comment period, the Majority
staff found that FCC staff specifically searched for comments in the November 2014 time frame in order to justify
why the record was no longer “thin”—Chairman Wheeler’s initial explanation for the delay. See e.g., E-mail from
Kim Hart, Fed. Commc’ns Comm’n, to Jonathan Sallet, Fed. Commc’ns Comm’n & Ruth Milkman, Fed.
Commc’ns Comm’n (Nov. 21, 2014) (HSGAC-OI-18252-53).

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Committee on Homeland Security and Governmental Affairs
United States Senate

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 appears that there was an attempt by some to thwart transparency and avoid ex parte
filings. 17
These issues, coupled with Chairman Wheeler’s statements to the public and in
Congressional testimony, raise real transparency and accountability issues. Specifically,
Chairman Wheeler continues to assert “I was looking at a Title II and Section 706 approach
before the President filed his position and we came out with a Title II, Section 706 approach.” 18
If it were as simple as Chairman Wheeler implies, then it is logical to assume that the FCC
would have voted on its OI Order in December, as the career, nonpartisan, professional staff at
the FCC originally targeted (and worked weekends in order to meet). Instead, the FCC moved
forward in a completely new direction months later—following the President’s direction and
apparently with concern from the career staff that there was insufficient notice to the public and
affected stakeholders—with heavy-handed regulations on the broadband industry.

17

Ex Parte Communications During FCC Rulemaking, 15 Op. O.L.C. 4 (1991) (“White House staff members
should avoid even the mere appearance of interest or influence–and the easiest way to do so is to avoid discussing
matters pending before the independent regulatory agencies with interested parties and avoid making ex parte
contacts with agency personnel.”) [hereinafter O.L.C. Opinion].
18
Oversight of the Federal Communications Commission: Hearing Before the S. Commerce, Sci., and Transp.
Comm., 114th Cong. (2015).

Majority Staff Report
Committee on Homeland Security and Governmental Affairs
United States Senate

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 OPEN INTERNET ORDER TIMELINE
Thursday, Nov. 6, 2014,
Jeffrey Zients briefs
Chairman Wheeler on
the President’s plan to
push for Title II

November 1, 2014 Career staff state that they
plan to circulate the "hybrid approach" OI draft
to other Commissioners on Nov. 20, 2014 in
preparation for December Open Meeting

Friday, November 7, 2014 Career staff plan to
work through the weekend on the “hybrid”
approach in order to get a draft to Chairman
Wheeler by Nov. 10, 2014

Friday, November 7,
2014 – Sunday,
November 9, 2014
Chairman Wheeler
and senior political
staff “pause” OI
drafting and spend
the weekend crafting
a response and press
strategy that does not
“shoot holes” at
POTUS and Title II.

Monday November 10, 2014 POTUS
Statement advocating Title II, utility-style
regulation of the Internet

November 12, 2014 The Chairman’s office
tasked career staff with drafting a Public
Notice to address “serious APA notice
problems”

November 21, 2014 Public Notice canceled

Monday, November 10,
2014 Career staff notice
WH influence: “At least
the delays in edits from
above make sense.”

November 19, 2014
FCC press team asks
General Counsel for
“MORE ON WHY WE NO
LONGER THINK THE
RECORD IS THIN.”

December 5, 2014 Chairman Wheeler writes
about his “Damascus Road experience”—and
embraces Title II

February 26, 2015 FCC adopted the OI Report
& Order citingTitle II authority

Majority Staff Report
Committee on Homeland Security and Governmental Affairs
United States Senate

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 TABLE OF CONTENTS
EXECUTIVE SUMMARY ............................................................................................................ 1
OPEN INTERNET ORDER TIMELINE ....................................................................................... 5
I.

Introduction ......................................................................................................................... 7

II.

The White House exerted undue influence on the FCC’s Open Internet rulemaking ........ 9

III.

FCC Staff recognized deficiencies in the record and worried about potential violations of
the Administrative Procedure Act ..................................................................................... 17

IV.

The FCC exhibited a lack of transparency relating to its Open Internet Order ................ 22

V.

Conclusion ........................................................................................................................ 29

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Committee on Homeland Security and Governmental Affairs
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 I.

INTRODUCTION

The FCC has been grappling with the issue of “net neutrality” for more than a decade. In
2005, the FCC adopted a policy statement that consumers were entitled to access their choice of
legal Internet content; use services and run applications of their choosing; and have competition
among network, application, service and content providers. 19 In April 2010, after the FCC had
tried in 2008 to enforce an alleged violation of this policy statement against a company, its
efforts were struck down by the D.C. Circuit in Comcast v. FCC. 20
Despite any evidence of a problem, the FCC spent the rest of 2010 working towards an
order that would impose affirmative rules on broadband providers. In December 2010, the FCC
adopted, on a party-line 3-2 vote, its “Open Internet Order.” 21 In the 2010 order, the FCC
carefully weighed whether or not to classify broadband services under Title II of the
Communications Act. Title II regulations were crafted in the 1930s and designed to regulate
“common carriers” or “public utilities.”
In the order, the FCC applied a light touch regulatory framework for fixed services,
recognized the technical and competitive differences of wireless, and did not touch
interconnection agreements. 22 The order specifically required broadband providers to disclose
their network management practices and barred them from blocking legal traffic on their
networks. 23 The rules also prohibited fixed broadband providers from unreasonably
discriminating against Internet traffic, but did not apply this prohibition to wireless broadband
providers. 24 Importantly, the FCC did not reclassify broadband as a Title II telecommunications
service.
The new rules were challenged in court. On January 14, 2014, the D.C. Circuit upheld
the FCC’s transparency rule but struck down the portions of the 2010 order that barred
broadband providers from blocking content or unreasonable discrimination on their networks. 25
The court reasoned that the FCC had chosen not to classify broadband providers as common
carriers, and therefore could not impose common carrier obligations. At the same time, the court
provided the FCC with a roadmap on how to impose rules on broadband providers that would
address the type of conduct about which the FCC was purportedly concerned without subjecting
19

Fed. Commc’ns Comm’n, New Principles Preserve and Promote the Open and Interconnected Nature of Public
Internet (Aug. 5, 2005).
20
600 F.3d 642 (D.C. Cir. 2010).
21
Fed. Commc’ns Comm’n, Report and Order, In re: Preserving the Open Internet Broadband Industry Practices
(Dec. 21, 2010).
22
Id.
23
Id.
24
Id.
25
Verizon v. Fed. Commc’ns Comm’n, 740 F.3d 623 (D.C. Cir. 2014).

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Committee on Homeland Security and Governmental Affairs
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 such providers to common carrier requirements. FCC Chairman Tom Wheeler appeared to
accept this direction, and in February 2014 announced that the FCC would pursue a new
rulemaking based on this roadmap. 26 Specifically, Chairman Wheeler proposed that broadband
providers could charge companies different prices for different services on their networks
provided that such deals were “commercially reasonable.” 27 On May 15, 2014 the FCC issued a
Notice of Proposed Rulemaking (NPRM) that largely reflected the Chairman’s earlier proposal. 28
By the end of 2014, it became widely reported that the FCC would move forward on a
Final Order adopting a “hybrid approach.” 29 The hybrid approach divided the Internet into
“wholesale” and “retail” transactions. Wholesale transactions, or transactions conduced on the
“back-end” of the Internet between the content provider and Internet service provider, would be
regulated as a public utility. Meanwhile, retail transactions, or the transaction sending data from
the Internet service provider to the consumer, would receive a lighter regulatory touch. 30
The same week the FCC was preparing to circulate a draft proposal on the hybrid
approach, the President directly weighed into the debate, stating: “I believe the FCC should
reclassify consumer broadband service under Title II of the Telecommunications Act.” 31 On
February 4, 2015, Chairman Wheeler revealed his plan to regulate broadband as a Title II utility
service, treat wireless the same as fixed broadband, and assert jurisdiction over Internet
interconnection agreements for the first time. 32 Not only did this plan constitute a monumental
shift from the 2010 FCC order, but it also represented a very large deviation from Chairman

26

FED. COMMC’NS COMM’N, Statement by FCC Chairman Tom Wheeler on the FCC’s Open Internet Rules (Feb.
19, 2014), available at https://www.fcc.gov/document/statement-fcc-chairman-tom-wheeler-fccs-open-internetrules; see also Oversight of the Federal Communications Commission: Hearing Before the S. Comm. on Commerce,
Sci., and Transp., 114th Cong. (2015).
27
See e.g., Fed. Commc’ns Comm’n, Notice of Proposed Rulemaking, In re: Preserving and Promoting the Open
Internet (May 15, 2014) (describing broadband providers ability to “serve customers and carry traffic on an
individually negotiated basis” to be commercially reasonable).
28
Fed. Commc’ns Comm’n, Notice of Proposed Rulemaking, In re: Preserving and Promoting the Open Internet
(May 15, 2014).
29
See e.g., Gautham Nagesh, FCC ‘Net Neutrality’ Plan Calls for More Power Over Broadband, WALL ST. J., Oct.
30, 2014; Edward Wyatt, F.C.C. Considering Hybrid Regulatory Approach to Net Neutrality, N.Y. TIMES, Oct. 31,
2014.
30
See E-mail from Tom Wheeler, Chairman, Fed. Commc’ns Comm’n, to Ruth Milkman et al., Fed. Commc’ns
Comm’n (Dec. 5, 2014) (describing the hybrid approach) (HSGAC-OI-031391-97).
31
WHITE HOUSE, November 2014 The President’s message on net neutrality, https://www.whitehouse.gov/netneutrality (last visited Feb. 22, 2016). Please note that Title II of the Telecommunications Act of 1996 actually deals
with broadcast services, but that the President clearly intended to refer to Title II of the Communications Act, which
covers common carriers.
32
See FED. COMMC’NS COMM’N, Fact Sheet: Chairman Wheeler Proposes New Rules for Protecting the Open
Internet (Feb. 4, 2015), available at https://apps.fcc.gov/edocs_public/attachmatch/DOC-331869A1.pdf; see also
Tom Wheeler, This is how we will ensure net neutrality, WIRED, Feb. 4, 2015.

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Committee on Homeland Security and Governmental Affairs
United States Senate

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 Wheeler’s original NPRM and the light regulatory touch that had been applied to broadband
services since the Clinton Administration.
In an op-ed in Wired magazine, Chairman Wheeler explained that this evolution occurred
because he became concerned that a commercial reasonableness standard might, down the road,
be interpreted to mean what is reasonable for commercial interests, not consumers. 33 However,
emails and information obtained by the Committee reveal that undue outside political pressure
led the FCC to this decision. Documents produced to the Committee reveal concerns among
FCC staff about potential APA violations stemming from Chairman Wheeler’s shift to Title II
regulation, as well as serious transparency failures from the FCC in terms of compliance with
congressional oversight and ex parte requirements. 34

II.

THE WHITE HOUSE EXERTED UNDUE INFLUENCE ON THE FCC’S OPEN
INTERNET RULEMAKING

Congress established the FCC as an independent agency with the mission of regulating
interstate and international communications within, from, and to the United States. As an
independent agency, the president’s influence over the FCC, by design, should be limited. 35 For
example, the president’s power to remove officers is not the same with leaders of an independent
agency as it is with subordinate executive branch officers. The President can only remove
independent agency heads “for cause,” meaning that they cannot be removed for political
disagreements. 36 These statutory limits on the president’s power over independent agencies—
like the FCC—demonstrate the importance of maintaining the agency’s independence. 37
The documents provided to the Committee do not paint the same picture that Chairman
Wheeler outlined in his February 2015 Wired op-ed. In contrast, these documents suggest that
the White House exerted undue influence on the FCC’s decision to abandon its hybrid approach
and regulate broadband under Title II.
Emails show that the career, nonpartisan, professional staff at the FCC identified White
House influence in the drafting process of the OI Order almost immediately after the President’s

33

Wheeler, supra note 24.
See O.L.C. Opinion, supra note 16.
35
In an executive agency, the President has many tools at his disposal to exert policymaking influence, one of which
is the power to remove an executive officer at-will. See generally Myers v. United States, 272 U. S. 52 (1926).
36
See Humphrey’s Executor v. United States, 295 U. S. 602 (1935) (finding that the President’s unrestrained
removal power does not extend to heads of independent agencies).
37
See e.g., Humphrey’s Executor, 295 U. S. 602, 629 (“one who holds his office only during the pleasure of another
cannot be depended upon to maintain an attitude of independence against the latter's will”).
34

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Committee on Homeland Security and Governmental Affairs
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 public statement. 38 After President Obama came out in favor of Title II regulations, FCC career
staff opined, “[n]ot sure how this will affect the current draft and schedule—but I suspect
substantially . . . .” 39 In another instance, an FCC employee who was assisting in drafting the OI
Order responded to a news alert about the President’s statement, writing “[t]his might explain
our delay.” 40 The staff member, who spent her weekend working on the OI Order, separately
wrote, “at least the delays in edits from above make sense . . . .” 41
Item 1: Email exchange between FCC employees (Nov. 10, 2014)

38

E-mail from Paula Blizzard, Fed. Commc’ns Comm’n, to Travis LeBlanc et al., Fed. Commc’ns Comm’n (Nov.
10, 2014) (HSGAC-OI-002796); E-mail from Kristine Fargotstein, Fed. Commc’ns Comm’n, to Thomas Parisi, Fed.
Commc’ns Comm’n (Nov. 10, 2014, 9:48AM) (HSGAC-OI-000220); E-mail from Thomas Parisi, Fed. Commc’ns
Comm’n, to Kristine Fargotstein, Fed. Commc’ns Comm’n (Nov. 10, 2014) (HSGAC-OI-007493); E-mail from
Kristine Fargotstein, Fed. Commc’ns Comm’n, to Claude Aiken, Fed. Commc’ns Comm’n (Nov. 10, 2014)
(HSGAC-OI-032602); E-mail from Melissa Droller Kirkel, Fed. Commc’ns Comm’n, to Claude Aiken et al., Fed.
Commc’ns Comm’n (Nov. 10, 2014) (HSGAC-OI-018630).
39
E-mail from Paula Blizzard, Fed. Commc’ns Comm’n, to Travis LeBlanc et al., Fed. Commc’ns Comm’n (Nov.
10, 2014) (HSGAC-OI-002796).
40
E-mail from Kristine Fargotstein, Fed. Commc’ns Comm’n, to Thomas Parisi, Fed. Commc’ns Comm’n (Nov.
10, 2014, 9:48AM) (HSGAC-OI-000220).
41
E-mail from Kristine Fargotstein, Fed. Commc’ns Comm’n, to Claude Aiken, Fed. Commc’ns Comm’n (Nov. 10,
2014) (HSGAC-OI-032602); E-mail from Melissa Droller Kirkel, Fed. Commc’ns Comm’n, to Claude Aiken et al.,
Fed. Commc’ns Comm’n (Nov. 10, 2014) (HSGAC-OI-018630).

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Committee on Homeland Security and Governmental Affairs
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 Item 2: Email exchange between FCC employees (Nov. 10, 2014)

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Committee on Homeland Security and Governmental Affairs
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 Item 3: Email exchange between FCC employees (Nov. 10, 2014)

Confusion among the career professional staff at the FCC is not surprising after
comparing the pace and momentum at which they were working before and after the President’s
statement on November 10, 2014. An email from Scott Jordan, the FCC’s Chief Technology
Officer, to Matt Del Nero, Chief of the Wireline Competition Bureau (Deputy Chief at the time
in question) and Eric Feigenbaum, a staffer in Office of Media Relations, confirms that, as of
November 1, 2014, there was a plan in place to circulate the OI Order on November 20, 2014. 42
According to FCC precedent and common practice, November 20 would have been the last day
to circulate the OI Order to FCC commissioners in time for it to appear on the December 2014
Open Meeting agenda and also to stay in compliance with sunshine laws. 43
42

E-mail from Scott Jordan, Fed. Commc’ns Comm’n, to Matthew DelNero, Fed. Commc’ns Comm’n (Nov. 1,
2014) (HSGAC-OI-004977).
43
See, Michael O’Rielly, Commissioner, Fed. Commc’ns Comm’n, FCC’s Pre-Adoption Process Also Needs Work,
FCC Blog (April 1, 2015, 12:55pm), available at https://www.fcc.gov/newsevents/blog/2015/04/01/fcc%E2%80%99s-pre-adoption-process-also-needs-work (“Commissioners receive meeting
items from staff, on behalf of the Chairman, not less than three weeks in advance of a Commission Agenda Meeting
…. During the first two weeks, outside parties may meet with Commissioners and staff to advocate their views and
seek changes, if necessary. The last week of the three-week period is the Sunshine period.”); Government in the
Sunshine Act, 5 U.S.C. § 552(b) (1976); 47 C.F.R. § 1.1203 (2016).

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 As late as Sunday, November 9, career FCC staffers were working diligently to finalize a
draft so that the OI Order could be considered by the commissioners at the FCC’s Open Meeting
scheduled for December 11, 2014. Between November 1 and November 7, professional staff
worked on edits with a goal of having a full draft ready for Chairman Wheeler’s review by
November 10. 44 Emails exchanged among FCC career staff responsible for drafting portions of
the OI Order between November 7 and 9 confirm that staff planned to and did work throughout
the weekend prior to the President’s statement in order to get a draft to “OCH [Office of the
Chairman] on Monday.” 45
While career professional staff worked weekend shifts on the draft OI Order for
Chairman Wheeler, senior staff at the FCC had already changed directions. 46 At a later hearing
of the Senate Committee on Commerce, Science, and Transportation, Chairman Wheeler
confirmed to Senator Johnson that he was briefed about the President’s speech on Thursday,
November 6, 2014 by Jeffrey Zients, Assistant to the President for Economic Policy. 47 During
the weekend between Chairman Wheeler’s briefing by Jeffrey Zients and the President’s
statement—the same weekend that career staff worked on the OI Order—the FCC media team
and senior staff were focused on damage control. They crafted an internal “Q&A” document,
with edits from Chairman Wheeler directly, in preparation for the anticipated media coverage of
President Obama’s statement. 48 In the Q&A document, FCC media staff posed an anticipated
44

See E-mail from Claude Aiken, Fed. Commc’ns Comm’n, to Kristine Fargotstein, Fed. Commc’ns Comm’n (Nov.
7, 2014) (making clear that the goal over the next couple of days, including the weekend, is to get a draft to the
Chairman by Monday, November 10) (HSGAC-OI-032662-63); see e.g., E-mail from Claude Aiken, Fed.
Commc’ns Comm’n, to Aaron Garza et al., Fed. Commc’ns Comm’n (Nov. 6, 2014) (compiling sections of the OI
draft and making style and grammar edits) (HSGAC-OI-032710-12).
45
E-mail from Kristine Fargotstein, Fed. Commc’ns Comm’n, to Claude Aiken, Fed. Commc’ns Comm’n (Nov. 7,
2014) (HSGAC-OI-032663) (making a chart of staff availability over the weekend); E-mail from Kristine
Fargotstein, Fed. Commc’ns Comm’n, to Claude Aiken, Fed. Commc’ns Comm’n (Nov. 8, 2014) (reviewing edits
on Saturday (11/8) and Sunday (11/9) in order to make the Monday deadline) (HSGAC-OI-032657); E-mail from
Claude Aiken, Fed. Commc’ns Comm’n, to Denise Coca, Fed. Commc’ns Comm’n (Nov. 8, 2014) (soliciting edits
from other staff on Saturday afternoon (11/9)) (HSGAC-OI-032546).
46
Documents show that General Counsel Jonathan Sallet, Chief of Staff Ruth Milkman, Senior Advisor Philip
Verveer, and Media Relations Director Shannon Gilson—among others—were already pivoting away from the
hybrid approach. Milkman, Verveer, and Sallet joined the FCC the same day Tom Wheeler became Chairman. See
Press Release, Fed. Commc’ns Comm’n, FCC Chairman Tom Wheeler Announces Staff Appointments (Nov. 4,
2013), available at https://apps.fcc.gov/edocs_public/attachmatch/DOC-323962A1.pdf (describing senior staff
appointments by Chairman Wheeler).
47
Oversight of the Federal Communications Commission: Hearing Before the S. Commerce, Sci., and Transp.
Comm., 114th Cong. (2015).
48
E-mail from Tom Wheeler, Chairman, Fed. Commc’ns Comm’n, to Shannon Gilson, Director, Office of Media
Relations, Fed. Commc’ns Comm’n , Jonathan Sallet, General Counsel, Fed. Commc’ns Comm’n, Philip Verveer,
Senior Counsel to Chairman, Fed. Commc’ns Comm’n, & Ruth Milkman, Chief of Staff, to Chairman, Fed.
Commc’ns Comm’n (Nov. 9, 2014) (rationalizing that Wheeler “did not know the specific substance of the
President’s letter until he read the public document”) (HSGAC-OI-031304-07).

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 question of whether there were discussions between the White House and the FCC leading up to
the President’s statement. In response to a proposed answer that “there have not been
substantive discussions,” the document drafter asked incredulously: “IS THIS RIGHT?” 49
Item 4: Q&A document prepared for Chairman Wheeler (Nov. 9, 2014)

While Chairman Wheeler claims that “he did not know the specific substance of the
President’s letter” until Monday, November 10 when it was made public, 50 the editing process
revealed deliberate efforts to avoid “shoot[ing] holes into POTUS’[s] proposal and taking a
swing at Title II.” 51 At a minimum, the weekend emails demonstrate that Chairman Wheeler
was personally aware prior to the President’s statement that the President would advocate for full
Title II, utility-style regulation, which was presumably a topic of conversation at his November 6
meeting with Jeffrey Zients. 52

49

E-mail from Kim Hart, Press Secretary, Fed. Commc’ns Comm’n, to Tom Wheeler et al., Fed. Commc’ns
Comm’n (Nov. 9, 2014) (HSGAC-OI-031064).
50
E-mail from Tom Wheeler, Fed. Commc’ns Comm’n, to Shannon Gilson, et al., Fed. Commc’ns Comm’n (Nov.
9, 2014) (“Q: How did the Chairman find out about the POTUS’ letter? A: The Chairman was informed Thursday
evening in the broadest possible terms. He did not know the specific substance of the President’s letter until he read
the public document”) (HSGAC-OI-031304-07); E-mail from Jonathan Sallet, Fed. Commc’ns Comm’n, to Tom
Wheeler et al., Fed. Commc’ns Comm’n (Nov. 9, 2014) (editing Wheeler’s response to the President’s Nov. 10,
2014 statement in favor of regulating the Internet as a utility) (HSGAC-OI-031067-72).
51
E-mail from Shannon Gilson, Fed. Commc’ns Comm’n, to Tom Wheeler, Fed. Commc’ns Comm’n (Nov. 9,
2014) (HSGAC-OI-031068).
52
Compare E-mail from Kim Hart, Press Secretary, Fed. Commc’ns Comm’n, to Shannon Gilson, Fed. Commc’ns
Comm’n (Nov. 9, 2014, 7:43PM) (Kim Hart drafting a press Q&A document including the following: “Q: The
Chairman says he shares the same position as the President, but POTUS is calling for Title II and the Chairman has
called for 706 and a hybrid approach. So how can they share the same position if they are calling for different legal
solutions? A: The Chairman and the President share the same goals – keeping the Internet open as[a] platform for
innovation, expression and economic growth. The Chairman has said all options are on the table and no final
decision has been made.”) (HSGAC-OI0031063-66) with E-mail from Tom Wheeler, Fed. Commc’ns Comm’n, to
Shannon Gilson et al., Fed. Commc’ns Comm’n (Nov. 9, 2014, 9:17PM) (Tom Wheeler editing the Q&A document,
including the following: “Q: The Chairman says he shares the same position as the President, but POTUS is calling
for Title II and the Chairman has called for 706 and a hybrid approach. So how can they share the same position if
they are calling for different legal solutions? A: The Chairman and the President share the same goals – keeping the
Internet open as [a] platform for innovation, expression and economic growth. The Chairman has often said he is
opposed to Internet fast lanes and to accomplish that all options are on the table and no final decision has been
made.”) (HSGAC-OI-031304-07).

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 It is also clear from documents obtained by the Committee that President Obama’s
advocacy for Title II prompted the FCC to immediately pull the OI Order from the December
2014 meeting agenda. In subsequent testimony, Chairman Wheeler admitted that the OI Order
was scheduled for the December Opening meeting. 53 When asked for the reason of the delay,
Chairman Wheeler stated “it was a bridge too far” and “you can whip the horse, but you can’t
make it go faster sometimes,” and ultimately blaming “the staff” who “just couldn’t get the work
done.” 54 Based on emails, however, the career FCC staff was prepared and on schedule, albeit
by working on the weekends, to move forward with the OI Order at the December Open
Meeting. The only impediment to
While it is true that the stock values of broadband
getting the work done appears to be
providers did not crash immediately after the
the White House’s intervention.
President’s announcement, the FCC’s OI Order has
had a clear impact on the market. According to the
In June 2015, Committee
Progressive Policy Institute, in the first half of 2015,
staff received a briefing about the
capital expenditures by major Internet Service
process of drafting the OI Order
Providers (ISPs) dropped an average of 12 percent.
from Roger Sherman, then Chief of
(See L. Gordon Covitz, Obamanet Is Hurting
the Wireless Telecommunications
Broadband, Wall St. J. (Sept. 13, 2015)). As
Bureau, and Matt DelNero, Chief of
Commissioner Pai testified to Chairman Johnson at
the Wireline Competition Bureau
a Senate Commerce Committee hearing, “You have
(Deputy Chief at the time in
55
to pay the piper when it comes to Title II. And the
question). They informed
proof is going to be in the pudding in the months to
Committee staff that, in the fall of
come, not in the ephemeral stock variations.”
2014, FCC career professional staff
(Oversight of the Federal Communications
wrote a draft OI Order that utilized
56
Commission: Hearing Before the S. Comm. on
the hybrid approach. FCC staff
Commerce, Sci., and Transp., 114th Cong. (2015)).
apparently prepared several drafts of
the order, all of which incorporated
the hybrid approach. 57 According to the briefing, Chairman Wheeler was aware of—and
supported—this effort as late as October 2014. 58
Mr. Sherman and Mr. DelNero confirmed that there was a “pause” of a few weeks after
Chairman Wheeler met with Mr. Zients on November 6th so that the FCC could reconsider the
merits of its hybrid approach and assess how the President’s announcement affected the
53

FCC: Process and Transparency: Hearing Before the H. Comm. on Oversight and Gov’t Reform, 114th Cong.
(2015).
54
Id.
55
Briefing provided by Fed. Commc’ns Comm’n staff for Comm. on Homeland Sec. & Gov’t Affairs staff (June 29,
2015).
56
Id.
57
Id.
58
Id.

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 market. 59 During this time, career professional staff working on the OI Order also recognized
that the “Open Internet is on pause.” 60 On November 21, 2014, Jonathan Sallet, FCC General
Counsel, began drafting written testimony for Chairman Wheeler regarding the OI Order. 61 The
draft testimony pointed to “the aftermath of the President’s statement”—stability in the markets
after the announcement—as “convincing proof that the application of Title II need not deter
future investment.” 62 With this justification in mind, at the conclusion of the few week “pause,”
Chairman Wheeler instructed FCC staff to follow a pure Title II reclassification. 63
Chairman Wheeler in Congressional hearings and in public statements denies that the
White House dictated the agency’s decision on net neutrality. When questioned by Chairman
Johnson in April 2015, Chairman Wheeler stated: “I was looking at a Title II and Section 706
approach before the President filed his position and we came out with a Title II, Section 706
approach.” However, if it were that simple, it strains credulity to believe that Chairman Wheeler
was unable to “whip the horse” (that is, the FCC’s professional career staff) to get the OI Order
on the December meeting agenda as planned. 64 This is particularly puzzling when it is clear that
professional career staff worked weekends to stay on track and deliver Chairman Wheeler’s
original proposal in a timely manner.
A review of the documents provided to the Committee demonstrates that the FCC was
actively drafting an OI Order using the hybrid approach prior to President Obama’s November
10, 2014 statement in favor of Title II, utility-style regulation. It is clear that once Chairman
Wheeler was aware of the President’s
“The FCC has approved President
imminent statement, Chairman Wheeler and
Obama’s plan to ensure a free and open
senior staff “paused” drafting the OI Order
internet.” - Email from the Democratic
even though career, professional staff were
National Committee, February 27 2015.
prepared and willing to get the draft finished.
(Oversight of the Federal
When the “pause” was over, Chairman
Communications Commission: Hearing
Wheeler directed staff to draft an OI Order
Before the S. Comm. on Commerce, Sci.,
embracing Title II. Chairman Wheeler even
and Transp., 114th Cong. (2015)).
alluded to the White House’s influence on the
rulemaking during a speech at the Federal
59

Id.
E-mail from Claude Aiken, Fed. Commc’ns Comm’n, to Alexis Johns, Fed. Commc’ns Comm’n (Nov. 10, 2014,
2:35PM) (HSGAC-OI-009105).
61
E-mail from Jonathan Sallet, Fed. Commc’ns Comm’n, to Philip Verveer, Senior Counsel to the Chairman, Fed.
Commc’ns Comm’n (Nov. 21, 2014) (HSGAC-OI-018370).
62
Id.
63
Briefing provided by Fed. Commc’ns Comm’n staff for Comm. on Homeland Sec. & Gov’t Affairs staff (June 29,
2015).
64
Oversight of the Federal Communications Commission: Hearing Before the S. Commerce, Sci., and Transp.
Comm., 114th Cong. (Mar. 2015).
60

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 Communications Bar Association’s “Chairman Dinner,” where he joked, “I would like to thank
Mozilla Foundation for the first draft of my remarks tonight, and President Obama for his
edits.” 65 His jest had more than a kernel of truth to it: FCC staff was actively preparing a hybrid
draft order up until the President’s announcement in favor of Title II.

III.

FCC STAFF RECOGNIZED DEFICIENCIES IN THE RECORD AND
WORRIED ABOUT POTENTIAL VIOLATIONS OF THE ADMINISTRATIVE
PROCEDURE ACT

Following the President’s statement on November 10 urging the FCC to regulate
broadband under Title II, the FCC shifted to a Title II approach. In doing so, however,
documents show that career FCC staff worried that the sudden change would violate federal law
governing agency rulemaking. 66 In particular, the APA requires federal agencies to provide for
“notice and comment” of proposed action. 67 Here, due to swift change in course, FCC career
staff worried that the agency could be violating federal law.
Under the APA, an agency is authorized to promulgate rules through a notice-andcomment process. 68 Because final agency orders are binding, proposals that go through noticeand-comment rulemaking are designed to give stakeholders and the public the opportunity to
weigh in on how proposed rules would affect their interests. Typically, the agency proposes a
rule, stakeholders and the public comment, and the agency considers those comments as it drafts
a final rule. The process is not supposed to serve as a means for an agency to justify a
predetermined outcome. 69 Courts have invalidated agency rules for not allowing the public
sufficient opportunity to comment. 70
Only two days into the “pause” period that resulted from the President’s statement on net
neutrality, Chairman Wheeler’s office directed career professional staff at the FCC to identify

65

Brooks Boliek et al., The FCC chair’s Internet pivot, POLITICO (Feb. 2, 2015, 5:36 AM),
http://www.politico.com/story/2015/02/tom-wheeler-net-neutrality-114785.
66
See e.g., E-mail from Matthew DelNero, Fed. Commc’ns Comm’n, to Jim Schlichting, Fed. Commc’ns Comm’n
(identifying the application of Title II to mobile and the redefinition of CMRS as “a serious APA notice problem”)
(HSGAC-OI-032539).
67
Administrative Procedure Act (APA), 5 U.S.C. §553 (1946).
68
Administrative Procedure Act (APA), 5 U.S.C. §551 et seq. (1946).
69
See HBO, Inc. v. FCC, 567 F.2d 9, 35-36 (D.C. Cir. 1977) (finding that the agency must provide notice to the
public before the final rule is adopted or the opportunity to comment is meaningless).
70
See Allina Health Servs. v. Sebelius, 746 F.3d 1102, 1110-11 (D.C. Cir. 2014) (vacating a rule because it was not
a logical outgrowth and the agency “did not provide adequate notice and opportunity to comment”).

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 issues that would be covered in a Further Notice of Proposed Rulemaking (FNPRM), sometimes
referred to as a Public Notice (PN). 71 The issues were to be separated into three buckets:
1. “areas where there is a serious APA notice problem with substantial litigation risk,”
2. “areas where we could expect to have to argue that our actions were a logical
outgrowth of the NPRM,” and
3. “areas we are confident that we have adequate notice but would be better informed by
more targeted comment.” 72
Responses poured in from FCC staff working on the OI Order. 73 One career professional
staffer in the Wireline Competition Bureau suggested “[w]e would want to seek further comment
on changing the definition of ‘public switched network,’ including proposing a revised definition
that would expand the term to refer to broadband Internet access networks.” 74 Scott Jordan,
Chief Technology Officer, wrote to General Counsel Jonathan Sallet warning that “[r]egarding
discriminatory practices, refusals to upgrade capacity, and access fees, the notice is fairly poor,
consisting mainly of a single general question.” 75 With respect to forbearance—the process of
determining which provisions of Title II would not apply—Mr. DelNero identified “forbearance
for mobile generally” and “forbearance for re/classification of a service that reaches
interconnection” as issues which “likely need more comment in the record.” 76
A draft of the Open Internet PN dated November 17, 2014, outlined nine issue areas of
concern. 77 Career professional staff compiled this draft for review by Roger Sherman and Julie

71

See e.g., E-mail from Matthew DelNero, Fed. Commc’ns Comm’n, to Jim Schlichting, Fed. Commc’ns Comm’n
& Joel Taubenblatt, Fed. Commc’ns Comm’n (Nov. 12, 2014) (making clear that the request for FNPRM topics was
coming from “OCH”) (HSGAC-OI-008311).
72
E-mail from Matthew DelNero, Fed. Commc’ns Comm’n, to Jim Schlichting, Fed. Commc’ns Comm’n (putting
the application of Title II to mobile and the redefinition of CMRS in the category of “a serious APA notice
problem”) (HSGAC-OI-032539).
73
See e.g., E-mail from Scott Jordan, Fed. Commc’ns Comm’n, to Jonathan Sallet, Fed. Commc’ns Comm’n (Nov.
12, 2014) (analyzing gaps in the OI proceeding by comparing the notice and the record) (HSGAC-OI-024547).
74
E-mail from Jennifer Salhus, Fed. Commc’ns Comm’n, to Joel Taubenblatt, Fed. Commc’ns Comm’n (Nov. 12,
2014) (HSGAC-OI-028347).
75
E-mail from Scott Jordan, Fed. Commc’ns Comm’n, to Jonathan Sallet, Fed. Commc’ns Comm’n (Nov. 13, 2014)
HSGAC-OI-037046 (emphasis added).
76
E-mail from Matthew DelNero, Fed. Commc’ns Comm’n, to Jonathan Sallet, Fed. Commc’ns Comm’n (Nov. 12,
2014) (HSGAC-OI-008312); see also Email from Thomas Parisi, Fed. Commc’ns Comm’n, to Melissa Droller
Kirkel, Fed. Commc’ns Comm’n (Nov. 14, 2014) (HSGAC-OI-032465-66).
77
E-mail from Claude Aiken, Fed. Commc’ns Comm’n, to Kristine Fargotstein, Fed. Commc’ns Comm’n (Nov. 17,
2014) (drafting a Public Notice to seek additional comment on “classification/reclassification question”, “edge
service classification issue”, “mobile classification issue (reclassify vs. hybrid)”, “CMRS definition issue (reclassify
vs. hybrid)”, “broad forbearance paragraphs”, “mobile-specific forbearance para/sentence”, “mobile policy –
transparency & RNM”, “specialized services”, “interconnection”) (HSGAC-OI-032431-34).

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 Veach, former Wireline Competition Bureau Chief. 78 Under FCC drafting procedures, after
review by the Bureau Chiefs, the document was sent to the Chairman’s office. 79 Career
professional staff began preparations to release the PN to the federal register on November 21,
2014. 80
The FCC press team worked with the Chairman’s senior staff to draft a media prep
document on Tuesday, November 18, 2014 for a Friday press conference. 81 The document
makes clear that FCC staff believed additional comment to be necessary. 82 Specifically, the draft
prep document references the need for additional public comment several times:
Q: Does the President’s letter affect the timing of the rules? Previously you said
you’d have rules by the end of the year.
A: [W]e have recently come to the conclusion that more work will be needed on
these complex issues, including possibly additional public comment.
Q: What sorts of questions have arisen that will require additional public
comment?
A: There are a number of substantive issues that would benefit from more public
comment. Questions regarding forbearance and the application of Open
Internet rules to mobile, for example.
***

Q: Do you plan on a Further Notice to strengthen the record?
A: It’s definitely one of the options we are currently considering to develop a
strong legal record.
***

78

E-mail from Claude Aiken, Fed. Commc’ns Comm’n to Joel Taubenblatt et al., Fed. Commc’ns Comm’n (Nov.
17, 2014) (HSGAC-OI-013519-20).
79
See WCB Weekly Planning (summarizing items under consideration and the deadlines for drafting and
consideration by Chairman Wheeler) (HSGAC-OI-028231).
80
E-mail from Kristine Fargotstein, Fed. Commc’ns Comm’n, to Zachary Ross, Fed. Commc’ns Comm’n
(November 14, 2014) (HSGAC-OI-032489).
81
E-mail from Kim Hart, Fed. Commc’ns Comm’n, to Daniel Alvarez et al., Fed. Commc’ns Comm’n (Nov. 18,
2014) (HSGAC-OI-13562-73).
82
Id.

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 Q: The WSJ reported that the record was thin and you would seek additional
comment? Is that true and how do you need to beef up the record? (emphasis
added).
A: Yes. The Commission has been examining a number of legal options,
including a hybrid approach and Title II reclassification. Over the past few
weeks, a number of substantive questions have been raised and it has become
clear that Commission staff need more time to study the legal, technical and
policy implications of different legal theories and that the Commission record
needs to be beefed up in multiple areas, including whether the FCC has the
current authority to cover mobile under Title II. (emphasis added).
***

Q: How does Title II affect the FCC’s ability to apply Open Internet rules to
mobile? Do you plan to expand new neutrality rules to mobile carriers?
A: The use of Title II authority . . . raises questions that are less than fully
developed in the record, specifically whether current laws and regulations
give the FCC jurisdiction over mobile IP under Title II. 83
Yet, by November 19, it appears that the FCC’s plan to seek further comment had
changed. Career professional staff expressed confusion upon receiving feedback on the draft
PN, writing “my sense is that the scope of this PN is going to be narrowed substantially,
potentially to include solely the 332 CMRS [commercial mobile radio service] definition
issue.” 84 Two days later, on November 21, General Counsel Jonathan Sallet and Chairman
Wheeler’s Chief of Staff, Ruth Milkman, discussed with the FCC media team how best to defend
the decision not to issue a PN. 85 A media aide pointed out to her colleagues that the FCC needed
a better answer for why additional public comments were unnecessary, writing: “NEED MORE
ON WHY WE NO LONGER THINK RECORD IS THIN IN SOME PLACES.” 86 Mr. Sallet
responded, referring to small group meetings conducted by FCC staff: “I think you want to point
to recent ex partes and potentially we should consider whether some group meetings would be
helpful.” 87
83

Id.
E-mail from Joel Taubenblatt, Fed. Commc’ns Comm’n, to Jennifer Salhus, Fed. Commc’ns Comm’n & Daniel
Ball, Fed. Commc’ns Comm’n (Nov. 19, 2014) (HSGAC-OI-013599). The definition of CMRS relates to the
classification decision for mobile broadband Internet.
85
E-mail from Kim Hart, Fed. Commc’ns Comm’n, to Jonathan Sallet, Fed. Commc’ns Comm’n (Nov. 21, 2014)
(HSGAC-OI-18251-53).
86
Id.
87
E-mail from Jonathan Sallet, Fed. Commc’ns Comm’n, to Kim Hart, Fed. Commc’ns Comm’n (Nov. 23, 2014)
(HSGAC-OI-18251-53).
84

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 Item 5: Q&A document prepared by FCC media team and general counsel for press inquiries (Dec. 1, 2014)

In an effort to “beef up the record,” General Counsel Jonathan Sallet solicited meetings
with certain outside groups such as the Center for Democracy and Technology. 88 He also
solicited a meeting in November 2014 with Marvin Ammori, an outspoken net neutrality
activist. 89 Reflecting the importance of the meeting—it had been solicited by General Counsel
Sallet—another meeting attendee asked for “a list of questions you’d like to cover in our
conversation, or some other sort of agenda.” 90 In the normal course of business, the request
would typically be the reverse—the meeting request would originate from an outside party and
the FCC employee would ask for an agenda. Yet, the FCC solicited these meetings to “beef up
the record” to support a rulemaking process for Title II regulations.
Looking for evidence to justify the scrapped PN to the press, on December 1, the FCC’s
media team asked senior FCC staff if “additional comments filed since early November address
some of the outstanding questions, i.e., mobile and forbearance?” 91 Staff was only able to
identify seven “OI mobile filings from the past two months.” 92 In other words, the FCC staff
88

E-mail from Jonathan Sallet, Fed. Commc’ns Comm’n, to Nuala O’Connor, President & CEO, Center for
Democracy & Technology (Nov. 26, 2014) (writing “[i]t would be great if CDT staff could come in to meet with
Stephanie on OI issues, as we discussed”) (HSGAC-OI-014730).
89
E-mail from Jonathan Sallet, Fed. Commc’ns Comm’n, to Marvin Ammori, Ammori Group (Nov. 11, 2014)
(“Marvin: Would you be able to come in to see us next week to talk about how the Commission might move forward
on its Open Internet proceeding? Thanks, Jon”) (HSGAC-OI-008120).
90
E-mail from Alan Davidson, Vice President, New America, to Jennifer Tatel, Associate General Counsel, Fed.
Commc’ns Comm’n (Nov. 14, 2014) (HSGAC-OI-010130-31).
91
E-mail from Kim Hart, Fed. Commc’ns Comm’n, to Jonathan Sallet, Fed. Commc’ns Comm’n & Ruth Milkman,
Fed. Commc’ns Comm’n (Dec. 1, 2014) (HSGAC-OI-18251-52).
92
Id.; E-mail from Jennifer Salhus, Fed. Commc’ns Comm’n, to Michael Janson, Fed. Commc’ns Comm’n &
Daniel Ball, Fed. Commc’ns Comm’n (HSGAC-OI-18366); E-mail from Michael Janson, Fed. Commc’ns Comm’n,
to Daniel Ball, Fed. Commc’ns Comm’n (HSGAC-OI-18366-67).

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 could not establish an adequate basis to argue that recent public comments—that is, comments
filed around the time of the President’s statement—provided a sufficient justification for shifting
approaches. 93
The FCC’s Public Notice was never submitted to the Federal Register. The FCC never
issued an FNPRM. Instead, after identifying nine separate areas in which additional comments
were required, Chairman Wheeler chose to leave the record inadequate, abandon the PN that was
carefully drafted by career professional staff, and forge ahead with the reclassification of
broadband as a telecommunications service. He did so with the FCC staff aware of “serious”
APA concerns, sacrificing regulatory certainty for political expediency.

IV.

THE FCC EXHIBITED A LACK OF TRANSPARENCY RELATING TO ITS
OPEN INTERNET ORDER

Federal law contains a number of provisions designed to ensure transparency in
government. Congressional oversight of executive branch activities is another mechanism for
ensuring the integrity of government processes. In promulgating its OI Order, the FCC burdened
congressional oversight efforts and appeared to err on the side of secrecy with ex parte filings
instead of transparency.
A. The FCC withheld drafts of the Open Internet Order requested by Chairman Johnson
In February 2014, Chairman Johnson requested that the FCC produce the draft OI Order
that was under consideration by the FCC in the fall of 2014—at the time of the President’s
statement. 94 On April 8, 2015, FCC Chairman Wheeler responded by suggesting that no such
draft existed. He wrote: “[T]here was not a draft net neutrality proposal that was finalized for
circulation to my fellow Commissioners in late November or early December.” 95
Although this carefully scripted answer may indeed be true—in that there was no
proposal circulated to the commissioners in that period—it conveniently ignores the fact that the
FCC possesses drafts of the OI Order from that timeframe. 96 (See Appendix A) As discussed
above, it was not due to a lack of hard work by the career professional staff at the FCC that these
drafts did not make it to the commissioners. Instead, a draft was never circulated among the
93

See supra note 16.
Appendix C, Ex. 1, Letter from Ron Johnson, S. Comm. on Homeland Sec. & Gov’t Affairs, to Tom Wheeler,
Fed. Commc’ns Comm’n (Feb. 9, 2015).
95
Appendix C, Ex. 3, Letter from Tom Wheeler, Fed. Commc’ns Comm’n, to Ron Johnson, S. Comm. on
Homeland Sec. & Gov’t Affairs (Apr. 8, 2015).
96
E-mail from Claude Aiken, Fed. Commc’ns Comm’n, to Jonathan Sallet et al., Fed. Commc’ns Comm’n (Nov. 5,
2014, 10:35PM) (HSGAC-OI-006693) (emphasis added).
94

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 commissioners because the Chairman opted to change course and abandoned his original plan
after the White House’s intervention.
Several documents produced to the Committee reference the existence of drafts of the
Open Internet proposal prior to the President’ statement in support of Title II. For example, in
one email to General Counsel Jonathan Sallet and other senior FCC leaders dated November 5,
2014, an FCC employee wrote: “[H]ere is an updated version of the OI draft that includes all of
the outstanding component parts. While still a work in progress, this is the most comprehensive
and complete draft to date.” 97 Mr. Sallet forwarded this e-mail to another FCC employee, asking
him to print a hard copy. 98 Although this e-mail included an attachment with the draft proposal,
the attachment was withheld from the Committee when the FCC produced documents.
Other documents similarly show that the FCC considered additional drafts of its Open
Internet proposal. 99 FCC staff even prepared summary documents to compare the changes made
in various drafts of the proposal. 100 Neither the drafts nor the summary documents were
produced to the Committee despite being
“I’m proud of the process that the
responsive to Chairman Johnson’s initial
commission ran to develop the Open
request. The majority staff repeatedly tried to
101
Internet Order. It was one of the most
obtain these documents from the FCC.
open and most transparent in
However, the FCC indicated that it would
commission history.”
prefer to offer a briefing on the subject, rather
102
– Chairman Wheeler, Testimony before
than provide responsive documents.
In
addition to the drafts of the proposal, the FCC the House Oversight and Gov’t Reform
Comm., March 17, 2015
also circulated drafts of a potential PN in
November 2014 requesting further comment

97

Id.
E-mail from Jonathan Sallet, Fed. Commc’ns Comm’n, to Richard Williams, Fed. Commc’ns Comm’n (Nov. 6,
2014) (HSGAC-OI-006693).
99
See, e.g., E-mail from Daniel Ball, Fed. Commc’ns Comm’n, to Joel Taubenblatt, Fed. Commc’ns Comm’n (Nov.
7, 2014) (HSGAC-OI-002721); E-mail from Claude Aiken, Fed. Commc’ns Comm’n, to Jonathan Sallet et al., Fed.
Commc’ns Comm’n (Oct. 31, 2014) (HSGAC-OI-005003–04).
100
E-mail from Thomas Parisi, Fed. Commc’ns Comm’n, to Claude Aiken, Fed. Commc’ns Comm’n (Nov. 5, 2014)
(HSGAC-OI-029491).
101
E-mail from staff of the S. Homeland Sec. & Gov’t Affairs Comm., to staff of the Fed. Commc’ns Comm’n
(April 17, 2015); E-mail from staff of the S. Homeland Sec. & Gov’t Affairs Comm., to staff of the Fed. Commc’ns
Comm’n (May 21, 2015); E-mail from staff of the S. Homeland Sec. & Gov’t Affairs Comm., to staff of the Fed.
Commc’ns Comm’n (June 2, 2015).
102
E-mail from staff of the Fed. Commc’ns Comm’n, to the staff of the S. Homeland Sec. & Gov’t Affairs Comm.
(June 5, 2015).
98

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 on select policy issues. 103 Portions of the draft PN were provided to the Committee; however,
the FCC failed to produce a full draft of the PN. 104
B. The FCC circumvented ex parte communication requirements
The FCC must obey the requirements of notice-and-comment rulemaking, which includes
ensuring that the public has access to a record of all ex parte communications related to an
agency proceeding. 105 The intention of these requirements is to bring transparency and
accountability into the regulatory process. Throughout the FCC’s process of drafting its OI
Order, the Commission circumvented transparency by avoiding compliance with ex parte
communication requirements.
By definition, an ex parte communication is “an oral or written communication not on the
public record with respect to which reasonable prior notice to all parties is not given.” 106 A
general exclusion exists for “status report” requests. 107 “At the FCC, ‘ex parte’ describes a
communication directed to the merits or outcome of a proceeding” but which was not said or
written to the public. 108 Any communication from a Member of Congress or the executive
branch of the federal government is considered ex parte if it is “of substantial significance and
clearly intended to affect the ultimate decision.” 109 Although a 1991 opinion from the Justice
Department’s Office of Legal Counsel opines that White House officials may advocate for a
particular policy position in FCC rulemakings, the opinion also cautions that “White House staff
members should avoid even the mere appearance of interest or influence—and the easiest way to
do so is to avoid discussing matters pending before the independent regulatory agencies.” 110

103

See E-mail from Claude Aiken, Fed. Commc’ns Comm’n, to Kristine Fargotstein, Fed. Commc’ns Comm’n
(Nov. 17, 2014) (seeking additional comments because “[t]he response to the NPRM has brought to light additional
issues that warrant further comment.”) (HSGAC-OI-032431-32).
104
See e.g., E-mail from Melissa Krikell, Fed. Commc’ns Comm’n, to Claude Aiken, Fed. Commc’ns Comm’n
(Nov. 17, 2014) (describing the need for additional comment on forbearance “on the extent to which forbearance
should apply if the Commission were to classify mobile broadband Internet access service as a CMRS service
subject to Title II.”) (HSGAC-OI-032465-66); E-mail from Kristine Fargotstein, Fed. Commc’ns Comm’n, to
Claude Aiken, Fed. Commc’ns Comm’n (Nov. 17, 2014) (outlining additional questions related to Interconnection
for the PN) (HSGAC-OI-032431); But see, E-mail from Claude Aiken, Fed. Commc’ns Comm’n, to Julie Veach et
al., Fed. Commc’ns Comm’n (Nov. 17, 2014, 10:25PM) (describing an attached draft Public Notice “that is due to
go to OCH on 11/19”, which was not provided to the Committee) (HSGAC-OI-032423).
105
47 CFR 1.1206(b)(2) (2016).
106
5 U.S.C. 551; see also, 47 C.F.R. 1.1202.
107
5 U.S.C. 551; see also, 47 C.F.R. 1.1202(a).
108
Fed. Commc’ns Comm’n., Ex Parte Resources, https://www.fcc.gov/proceedings-actions/ex-parte/general/exparte-resources (last visited Feb. 5, 2016); 47 CFR 1.1202 (2016).
109
47 C.F.R. 1.1206(b)(3).
110
O.L.C. Opinion, supra note 16 at 4 (emphasis added).

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 At the FCC, a summary of the written or oral ex parte communication must be filed in the
record so that the public and stakeholders have the opportunity to review and comment. 111 For
instance, after President Obama’s statement supporting Title II regulation of the Internet and
after senior White House official Jeffrey Zients met with Chairman Wheeler, the FCC entered ex
parte filings into the record for both communications. 112 During the course of the OI Order
drafting process, however, documents produced to the Committee revealed other examples in
which FCC senior staff either did not file an ex parte notice or reasoned that one was not
necessary. 113
In one instance, a reporter questioned why ex parte notices had not been filed for
Chairman Wheeler’s dozen or more meetings at the White House. 114 In response to this inquiry,
the FCC media team conferred with senior staff in Chairman Wheeler’s office. In an effort to
justify the decision not to file ex parte notices, Philip Verveer, Senior Counsel to the Chairman
asserted, “I assume the answer is that there literally was no advocacy” during the meetings
between Chairman Wheeler and White House personnel. 115 The reporter responded that he
found that “hard to believe.” 116
The documents reviewed by the Committee make clear that Chairman Wheeler regularly
communicated with presidential advisors. None of the communications reviewed by the
Committee were submitted to the FCC’s formal record in the form of ex parte notices although
the OI Order was clearly discussed. 117 One email between Chairman Wheeler and Jeffrey Zients
111

47 C.F.R. 1.1206(b)(1)-(2); see e.g., Protecting and Promoting the Open Internet, 79 Fed. Reg. 37448, 37472
(proposed May 15, 2014) (to be codified at 47 C.F.R. 8) (requiring that ex parte filings be submitted to the record
within two days of the communication).
112
Ex Parte for President Barack Obama and Jeffrey Zients, Protecting and Promoting the Open Internet (GN
Docket No. 14-28) (Nov. 10, 2014).
113
E-mail from Stephanie Weiner, Fed. Commc’ns Comm’n, to Markham Erickson, Partner, Steptoe & Johnson
LLP (Nov. 19, 2014) (discussing OI process but no ex parte was filed) (HSGAC-OI-013618); E-mail from Matthew
DelNero, Fed. Commc’ns Comm’n, to Praveen Goyal, Counsel, Hogan Lovells US LLP (Nov. 12, 2015)
(rationalizing that no ex parte was necessary) (HSGAC-OI-009711).
114
E-mail from Brooks Boliek, Reporter, Politico, to Kim Hart, Press Secretary, Fed. Commc’ns Comm’n (Nov. 19,
2014) (HSGAC-OI-013791).
115
E-mail from Philip Verveer, Fed. Commc’ns Comm’n, to Kim Hart, et al., Fed. Commc’ns Comm’n (Nov. 19,
2014) (HSGAC-OI-013791).
116
E-mail from Kim Hart, Fed. Commc’ns Comm’n, to Philip Verveer, et al., Fed. Commc’ns Comm’n (Nov. 19,
2014) (HSGAC-OI-013791).
117
E-mail from Tom Wheeler, Fed. Commc’ns Comm’n, to David Edelman, Fed. Commc’ns Comm’n (April 23,
2014) (HSGAC-OI-001232); E-mail from Tom Wheeler, Fed. Commc’ns Comm’n, to Jeffrey Zients, Exec. Office
of the President, John Podesta, Exec. Office of the President, Jason Furman, Exec. Office of the President, Tom
Power, Exec. Office of the President, & David Edelman, Exec. Office of the President (April 24, 2014) (HSGACOI-001223); E-mail from Tom Wheeler, Fed. Commc’ns Comm’n, to Jeffrey Zients, Exec. Office of the President &
Jason Furman, Exec. Office of the President (April 29, 2014) (HSGAC-OI-001227); E-mail from Tom Wheeler,
Fed. Commc’ns Comm’n, to Jeffery Zients, Exec. Office of the President, Jason Furman, Exec. Office of the

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 and Jason Furman makes reference to a prior conversation about the OI Order. 118 Ex parte
notices were not filed for either the email or the conversation.
Item 6: Email from Chairman Wheeler to Jeffrey Zients & Jason Furman (Apr. 29, 2014)

Item 7: Email from Chairman Wheeler to Jeffrey Zients, Jason Furman, & Tom Power (Apr. 23, 2014)

President, Tom Power, Exec. Office of the President, & John Podesta, Exec. Office of the President (April 29, 2014)
(HSGAC-OI-001233).
118
E-mail from Tom Wheeler, Fed. Commc’ns Comm’n, to Jeffrey Zients, Exec. Office of the President & Jason
Furman, Exec. Office of the President (April 29, 2014) (HSGAC-OI-001227).

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 Item 8: Email from Chairman Wheeler to White House Advisors (Apr. 24, 2014)

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 Item 9: Email from Chairman Wheeler to Jeffrey Zients, Jason Furman, Tom Power, & John Podesta (Apr. 29, 2014)

While neither the OLC Opinion nor the FCC rules further define the threshold for
requiring an ex parte filing—beyond the communication being of “substantial significance and
clearly intended to affect the ultimate decision”—emails between Chairman Wheeler and White
House senior staff show the FCC’s efforts to justify and further explain actions taken in relation
to the OI Order. 119 Clearly, given the importance of this issue, the FCC and the White House
should have taken great pains to even avoid the appearance that the White House influenced the
FCC’s independent rulemaking. As it is, the lack of transparency surrounding these
communications is troubling and raises further questions about the development of the FCC’s
order.
119

See e.g., E-mail from Tom Wheeler, Fed. Commc’ns Comm’n, to David Edelman, Fed. Commc’ns Comm’n
(April 23, 2014) (clarifying that there is “no ‘turnaround in policy’”) (HSGAC-OI-001232); E-mail from Tom
Wheeler, Fed. Commc’ns Comm’n, to Jeffery Zients, Exec. Office of the President, Jason Furman, Exec. Office of
the President, Tom Power, Exec. Office of the President, & John Podesta, Exec. Office of the President (April 29,
2014) (justifying that the FCC’s proposed OI rule can still be supported by the President) (HSGAC-OI-001233).

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 V.

CONCLUSION

In February 2015, the Wall Street Journal reported that the President’s “vision for
regulating high-speed Internet traffic” “swept aside more than a decade of light-touch regulation
of the Internet and months of work by [FCC Chairman] Wheeler toward a compromise.” 120
Chairman Wheeler shortly thereafter “lined up behind Mr. Obama” and announced that the FCC
would follow the President’s orders—it would classify the Internet under Title II of the
Communications Act. 121 The documents that inform the Committee’s inquiry confirm this
report.
An analysis of documents produced to the Committee in response to Chairman Johnson’s
request shows that the FCC bent to the political pressure of the White House, abandoning its
work on a hybrid approach to “pause” and then pivot to reclassify broadband as a
telecommunications service, subjecting broadband providers to regulation under Title II of the
Communications Act. The FCC’s staff worried that the process to adopt President Obama’s
preferred policy approach violated the Administrative Procedure Act. Most fundamentally,
throughout this process—as the FCC shifted to a Title II approach and then responded to
congressional oversight—it failed to live up to standards of transparency.
It should be highly 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.
Documents produced to the Committee clearly show that the career professional staff at the FCC
worked diligently on the Commission’s OI Order, despite its significant and last-minute change
in direction. It is also clear that career professional staff worked expeditiously and thoroughly on
the Commission’s planned Public Notice, despite its ultimate abandonment by FCC leadership.
Had the White House not inserted itself into the formal FCC rulemaking process, it is probable
that the Open Meeting in December would have included the OI Order. At the very least, if the
FCC had issued a Public Notice, the record would presumably have been much more informed.
Politics should never trump policy, especially not when an agency, like the FCC, was created for
the expressed purpose of being independent and above the political fray.

120
121

Nagesh supra note 1.
See Nagesh supra note 1.

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