Hearing of the Senate Commerce, Science, & Transportation Committee - Opening Statement on 'Oversight of the Federal Communications Commission'

Hearing

"Welcome to today's hearing on oversight of the Federal Communications Commission.

"In the past, people used to say that telecom policy was not particularly partisan and that both parties could often find common ground to work together. The voting record at the Commission certainly bears that out, with the previous five permanent FCC chairmen combining for just 14 party-line votes at open meetings during their tenure. But since Chairman Wheeler assumed his post, this agency has too often pursued a highly partisan agenda that appears driven by ideological beliefs more than by a sober reading of the law. Chairman Wheeler has forced three-to-two votes on party-line items a total of 25 times. Put another way, in three years under Chairman Wheeler, the FCC has seen nearly twice as many partisan votes than in the previous twenty years combined. What were once very rare events are now standard operating procedure at the Commission.

"A free and open Internet, universal broadband access for all Americans, innovative offerings for pay-TV customers, and necessary privacy protections all have broad, bipartisan support. So why does the current FCC continually advance divisive policies at the expense of certainty for consumers and innovators that only bipartisan solutions can offer?

"Of course, consensus is not always achievable on every issue. But when there have been opportunities for common ground, the Commission has frequently chosen a partisan path over collaboration. By relying on unnecessarily partisan tactics, Chairman Wheeler has, I believe, missed opportunities for bipartisan accomplishments.

"Chairman Wheeler at times has seemed to use even the distribution of information about Commission proceedings as a political weapon. Too often, we have seen conveniently-timed leaks and disclosures used as tools to benefit the partisan agenda. When he and I spoke earlier this week, I reiterated my call for the FCC to be as transparent as possible. Treating all commissioners fairly and not using the disclosure of nonpublic information as a sword would lead to a better process at the agency, which in turn could only improve the Commission's work product. While process issues at the FCC may seem to be just a minor transgression that can be chalked up to business as usual in Washington, D.C., in this case it illustrates a divisive leadership approach, which threatens to undermine the credibility of the agency now and into the future.

"This extreme partisanship has been used to do the following things:

* A complete upending of how the Internet is regulated, creating years of uncertainty for everyone;

* Stripping important consumer protection responsibilities from the Federal Trade Commission;

* A failed attempt to override state's rights on municipal broadband in a power grab that was overturned by the courts;

* Increasing the size of the Universal Service Fund by billions of dollars, while simultaneously undermining bipartisan efforts to improve the program's accountability;

* The unnecessary and unlawful disclosure of trade secrets; and

* A plan, that could possibly be adopted later this month, to have the FCC and its Media Bureau design and dictate the future of television apps.

"The common thread among these partisan actions by the agency is a clear intent to install the Federal Communications Commission as the most important player in the communications landscape -- the arbiter through which all new marketplace developments and innovations must pass.

"If you're an innovator working to develop a new consumer-friendly Internet-based app, sorry, you need to first make sure it conforms to the license required and regulated by the FCC. If you're a mobile subscriber enjoying competitive service plans that make data more affordable for you, enjoy it while it lasts, because while the Commission might be O.K. with that today, they could easily deem it unlawful next year or even tomorrow. And if you are a small business seeking a new way to promote your company online, sorry, the FCC is going to saddle would-be disruptors with rules preventing them from challenging the dominant players in the online advertising market.

"Rather than exercising regulatory humility and putting faith in the marketplace, over and over again, the FCC has required companies to beg for government permission to innovate.

"And Republicans are not alone in noticing the FCC's overreach; on several occasions other federal agencies have refused to support the FCC's actions. The Copyright Office strongly criticized the earlier proposal for set-top boxes, which was far less complex than the new one. The staff at the Federal Trade Commission called the FCC's privacy rules "not optimal," which is bureaucrat-speak for "really bad." And the Department of Justice refused to defend the FCC's unlawful action on municipal broadband.

"This all stands in contrast to the good-faith efforts by Republicans and Democrats in Congress to work together on telecom policy. The bipartisan MOBILE NOW Act is the most prominent example of this in the Senate, but other examples abound: FCC reauthorization, Kari's Law, the Amateur Radio Parity Act, the SANDY Act, the Improving Rural Call Quality and Reliability Act, and more. In Congress, communications policy is often a rare oasis of cross-aisle cooperation. But even here, the partisan toxicity of the Commission has reached across D.C. and infected our bipartisan work. For proof of this, one need look no further than at Senator Reid blocking the Senate's telecom agenda while admitting that this Committee has done its work--including reporting nominees--in bipartisan fashion.

"What is perhaps most unfortunate is that we have clear examples of the good the Commission can do when it truly works toward bipartisanship. Earlier this year, Chairman Wheeler and Commissioner O'Rielly worked together to address the standalone broadband problem that threatened rural communities. More recently, the FCC issued its Spectrum Frontiers order, which is an important down-payment toward making much-needed spectrum available to fuel the next generation of gigabit wireless services.

"I urge all members of the Commission to treat each other fairly, to respect the law, to be willing to ask Congress for guidance, and to seek consensus whenever and wherever possible. Doing so will result in agency actions that are more likely to endure. Further, less controversy at the Commission will improve its credibility, providing it with more wherewithal to carry out its statutory responsibilities.

"On a side note, while this agency is far from the largest in our committee's expansive jurisdiction, its importance to the future of our economy and our society is hard to overstate. Communications and media networks are at the center of Americans' lives, and that role is only increasing over time. Regardless of how the agency operates or who is in charge of leading the Commission, it is important and worthwhile for the Commerce Committee to hold regular oversight hearings of the FCC, and today's hearing should be viewed as establishing a regular biannual schedule for FCC oversight.

"Thank you. Ranking Member Nelson."

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