Pallone Leads House Democrats in Letter of Concern on Wheeler's Hearing Answers

“While we appreciate your continued willingness to testify before our Committee this year, we are concerned that at our most recent hearing you were unable to give complete responses to nearly half of the questions posed directly to you by Democratic members of the Subcommittee,” five Commerce Committee Democrats told Wheeler in a private Dec. 2 letter. “Our members take their oversight responsibilities very seriously, and they expect witnesses before the Subcommittee to treat their testimony the same way.”

House Commerce Committee ranking member Frank Pallone of New Jersey was the lead name on the letter, which also was signed by Democrats Bobby Rush of Illinois, Diana DeGette of Colorado, G.K. Butterfield of North Carolina and Yvette Clarke of New York. Butterfield chairs the Congressional Black Caucus, of which Rush and Clarke are also members. Absent from the letter is Communications Subcommittee ranking member Anna Eshoo of California and other outspoken Democrats on telecom policy, including Reps. Doris Matsui of California and Mike Doyle of Pennsylvania. The subcommittee has 13 Democratic members including Pallone. The FCC received the letter and is reviewing it, an agency spokeswoman confirmed.

“It’s rare for a top congressional Democrat like Pallone to take a shot at the top FCC Democrat,” a former eighth-floor adviser told us. “Even a limited public fissure like this suggests things are quite a bit worse privately.”

The letter is unusual but not entirely unprecedented, striking notably due to Pallone’s signature as the lead, said a former FCC official familiar with the agency’s relationship with the Hill. The ex-official pointed to past contentiousness at times between former Democratic FCC Chairman Julius Genachowski and former committee leader John Dingell, D-Mich., and former Republican FCC Chairman Kevin Martin with GOP leadership on Commerce. What’s also really surprising about this charge is that Wheeler seems to prepare extensively for hearings and attempts to be forthcoming, despite what are often real constraints in terms of what he can say during open proceedings, the former FCC official told us. Freedom of Information Act responses earlier this year showed intense preparation by Wheeler and his senior aides for congressional hearings, including the use of murder boards, which simulate challenging oral examinations, and plans for rapid response (see 1507060043).

New America Foundation's Open Technology Institute Policy Counsel Josh Stager questioned whether the letter amounts to much controversy. “Members submit written questions after just about every hearing,” said Stager, a former Democratic Senate staffer. “This letter may be more strident in tone than the typical post-hearing letter, but the fact that they're asking for follow-up responses is very standard procedure.”

During last month’s hearing, DeGette was visibly impatient with Wheeler when asking about the memorandum of understanding between the FCC and the FTC and specific areas of consumer protection where they would work together in enforcement. “I only have five minutes,” she said at one point, repeating an earlier question and pressing for an answer.

Pallone wondered about the agency’s resiliency proceeding, broadcast TV incentive auction software readiness and pirate radio. Clarke asked Wheeler about what she termed the AllVid proposal coming out of the Downloadable Security Technical Advisory Committee and then this month wrote a letter to Wheeler with other CBC members on the topic (see 1512020053). Wheeler questioned the AllVid label and told Clarke it’s “premature” to make any bigger conclusions about what will come out of DSTAC. Butterfield also asked about AllVid, prompting similar pushback and explanation of DSTAC from Wheeler. Though Wheeler provided extensive answers to some of Butterfield’s questions, he gave one-sentence answers to two. When Butterfield asked how Wheeler would promote competition to Lifeline providers at its subsidy price, Wheeler simply replied: “Consumers should have choices.” When Butterfield asked how the FCC would ensure voice-only service remains available for eligible low-income consumers, Wheeler offered two words: “It’s important.” Rush asked about the FCC’s possible public safety jurisdiction over social media use by gangs in areas like Chicago, citing the violence involved. “As legitimate as your concern is, I don’t believe we have the jurisdiction to do the kind of thing that you suggest,” Wheeler told Rush, saying the agency has no intent of regulating edge providers. Rush paused and asked if Wheeler was refusing an FCC role “in any way.” Wheeler said he’d happily use the “bully pulpit” and call Facebook founder Mark Zuckerberg.

Some signatories seemed unexpectedly interested in set-top box issues during the hearing, Stager recalled. “Rush didn't have a good grasp of his own questions. He had to re-read them several times,” he said. “It didn't seem like he understood them, so it's not surprising that Chairman Wheeler had difficulty answering. In any event, Rush and Butterfield have never been cozy with Wheeler. They are much more aligned with telecom industry interests than the other Democrats on the committee.”

Some Democratic and Republican lawmakers from both chambers told us earlier this year that Wheeler tries to build relationships with members of Congress (see 1506080038). These lines of communication were seen as crucial to a productive oversight relationship. NAB scoffed at Wheeler’s recent responses to Democrats in the House -- including Butterfield, Rush and Clarke -- and senior Democrats and Republicans in the Senate on the topic of killing broadcast exclusivity rules, saying Wheeler was “dismissive” and showed “a shocking disregard for the institution that confirmed him” (see 151124006). “I’ve testified more than nine times before Congress this year, prompting Hillary Clinton to say, ‘that’s a little over the top,’” Wheeler joked Thursday during the annual FCBA dinner speech (see 1512040043). “It turns out that I was testifying an average of once every 17 legislative days. I don’t get my hair cut that often.”

“Oversight of the agencies within our jurisdiction is one of the most important jobs for the Committee,” Pallone and the other Democrats wrote. “Oversight hearings in particular give our members the chance to hear directly from the agencies within our jurisdiction on some of the most critical issues affecting their constituents.” They supplied Wheeler with questions “that our members felt were not answered completely” and requested written responses by Dec. 16.