Tom Wheeler won't make public his draft of new open Internet rules before the Feb. 26 meeting, the FCC chairman told the Republican leaders of the House and Senate committees overseeing communications.
"What you have suggested in terms of releasing the preliminary discussion draft of the Order runs contrary to Commission procedure followed over the years by both Democratic and Republican Chairs," he said in a letter dated Feb. 2 obtained by Multichannel News. "If decades of precedent are to be changed, then there must be an opportunity for thoughtful review in the lead up to any change." Wheeler signaled last week that he was unlikely to grant the request, citing the need to go through regular process in order to change regular process.
Wheeler said he would circulate the draft to the commissioners Feb. 5 as planned and they should have the requisite three-week period to discuss the substance of it "in confidence" before the planned Feb. 26 vote. "This is commonplace for administrative agencies and closely resembles the way that appellate courts - including the Supreme Court - hear public argument, confer privately, share their views and review drafts confidentially, and then issue their public decision," he said.
The request to see the draft, which the chairman has said will circulate to the other commissioners Feb. 5 per custom, came in a letter Jan. 22 to Wheeler from House Energy & Commerce Committee chairman Fred Upton (R-Mich.), Communications Subcommittee chairman Greg Walden (R-Ore.), and Senate Commerce Committee chairman John Thune (R-S.D.).
During network neutrality hearings in the House and Senate two weeks ago, those same leaders suggested one advantage of congressional action—they have proposed a bill to clarify FCC authority over Internet access— is that it was on the table for everyone to check out.
"We will continue to hear from interested parties in the run-up to the open meeting, will engage in the normal confidential process of sharing and considering changes to that Order and, of course, will consider and discuss the matter in public at the open meeting," he said.
The letter is reprinted in full below:
Dear Chairmen Thune, Upton, and Walden:
Thank you for your letter regarding the Commission's Open Internet proceeding. Irecognize and appreciate that your Committees are fully engaged on Open Internet issues, whichare of great importance to Congress and the American people. It is critical to preserve an openInternet.
The Commission's process for considering items like the Open Internet rule is designedto give stakeholders and members of the public ample opportunity to engage in a transparent andvigorous discussion. It is also designed to give Commissioners a three-week period to discuss inconfidence the substance of an item before final decisions are released. This is commonplace foradministrative agencies and closely resembles the way that appellate courts - including theSupreme Court - hear public argument, confer privately, share their views and review draftsconfidentially, and then issue their public decision.
What you have suggested in terms of releasing the preliminary discussion draft of theOrder runs contrary to Commission procedure followed over the years by both Democratic andRepublican Chairs. If decades of precedent are to be changed, then there must be an opportunityfor thoughtful review in the lead up to any change.
I intend to ask the Commission to adopt an Open Internet Order at our next open meeting,on February 26, 2015. As is long-standing and established FCC procedure, I will circulate adraft Order for consideration by my fellow commissioners three weeks prior to the date of thatmeeting (on February 5, 2015). We will continue to hear from interested parties in the run-up tothe open meeting, will engage in the normal confidential process of sharing and consideringchanges to that Order and, of course, will consider and discuss the matter in public at the openmeeting.
The Commission's Open Internet proceeding has been one of the most transparent andinclusive proceedings in recent memory. Indeed, we have received more than four millioncomments - a record for any Commission proceeding - on the Notice of Proposed Rulemakingreleased last spring. We have been urged to act, and act swiftly, to protect Internet openness. Wehave also had continuous engagement with stakeholders, including in the form of six separateroundtables. These roundtables, which were open to the public, addressed Open Internet issues,including mobile broadband, effective enforcement, and technological considerations, and alsosought the best economic and legal thinking on Open Internet topics. The information gatheredfrom these roundtables, public comments, and other engagement with stakeholders has informedour deliberations in the Open Internet proceeding. The almost 600 Ex Parte filings in thisproceeding are another indication of the extensive dialogue the Commission and stakeholdershave conducted in recent months.
Our decisionmaking process has also been informed by regular and detailed, bipartisanengagement with Congress, including you and other Members and staff of your Committees.Again, I am pleased that we share the goal of ensuring a free and open Internet, and I amcommitted to continuing to work with you toward that end and on other matters of interest toyour Committees,
Again, I am pleased that we share the goal of ensuring a free and open Internet, and I amcommitted to continuing to work with you toward that end and on other matters of interest toyour Committees. Please do not hesitate to be in touch with me if I may be of further assistancein this matter.