    [House Hearing, 114 Congress]
    [From the U.S. Government Publishing Office]

                         FCC: PROCESS AND TRANSPARENCY

    =======================================================================

                                    HEARING

                                   BEFORE THE

                             COMMITTEE ON OVERSIGHT
                             AND GOVERNMENT REFORM
                            HOUSE OF REPRESENTATIVES

                        ONE HUNDRED FOURTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                 MARCH 17, 2015

                                   __________

                               Serial No. 114-21

                                   __________

    Printed for the use of the Committee on Oversight and Government Reform

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

             Available via the World Wide Web: http://www.fdsys.gov
                          http://www.house.gov/reform
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                             U.S. GOVERNMENT PUBLISHING OFFICE

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                  COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                         JASON CHAFFETZ, Utah, Chairman
    JOHN L. MICA, Florida                ELIJAH E. CUMMINGS, Maryland,
    MICHAEL R. TURNER, Ohio                  Ranking Minority Member
    JOHN J. DUNCAN, Jr., Tennessee       CAROLYN B. MALONEY, New York
    JIM JORDAN, Ohio                     ELEANOR HOLMES NORTON, District of
    TIM WALBERG, Michigan                    Columbia
    JUSTIN AMASH, Michigan               WM. LACY CLAY, Missouri
    PAUL A. GOSAR, Arizona               STEPHEN F. LYNCH, Massachusetts
    SCOTT DesJARLAIS, Tennessee          JIM COOPER, Tennessee
    TREY GOWDY, South Carolina           GERALD E. CONNOLLY, Virginia
    BLAKE FARENTHOLD, Texas              MATT CARTWRIGHT, Pennsylvania
    CYNTHIA M. LUMMIS, Wyoming           TAMMY DUCKWORTH, Illinois
    THOMAS MASSIE, Kentucky              ROBIN L. KELLY, Illinois
    MARK MEADOWS, North Carolina         BRENDA L. LAWRENCE, Michigan
    RON DeSANTIS, Florida                TED LIEU, California
    MICK MULVANEY, South Carolina        BONNIE WATSON COLEMAN, New Jersey
    KEN BUCK, Colorado                   STACEY E. PLASKETT, Virgin Islands
    MARK WALKER, North Carolina          MARK DeSAULNIER, California
    ROD BLUM, Iowa                       BRENDAN F. BOYLE, Pennsylvania
    JODY B. HICE, Georgia                PETER WELCH, Vermont
    STEVE RUSSELL, Oklahoma              MICHELLE LUJAN GRISHAM, New Mexico
    EARL L. ``BUDDY'' CARTER, Georgia
    GLENN GROTHMAN, Wisconsin
    WILL HURD, Texas
    GARY J. PALMER, Alabama

                        Sean McLaughlin, Staff Director
                      Rachel Weaver, Deputy Staff Director
                            Tristan Leavitt, Counsel
                             Cordell Hull, Counsel
                        Sharon Casey, Deputy Chief Clerk

                                C O N T E N T S

                                  ----------
                                                                       Page
    Hearing held on March 17, 2015...................................     1

                                   WITNESSES

    The Hon. Thomas Wheeler, Chairman, Federal Communications
      Commission
        Oral Statement...............................................     4
        Written Statement............................................     8

                                    APPENDIX

    Wheeler-FCC Response to Questions for the Record.................    58
    2015-02-04 WSJ - How White House Thwarted FCC Chief on Net
      Neutrality.....................................................    71
    2015-02-23 Daily Caller Obama's Move to Regulate Internet by
      Picket.........................................................    79
    2015-03-16 Orgs to JEC EEC - Net Neutrality......................    82
    2015-03-17 Orgs to FCC - Net Neutrality..........................    84
    2015-03-02 The Process of Governance by Sallet FCC...............    87

                         FCC: PROCESS AND TRANSPARENCY

                                  ----------

                            Tuesday, March 17, 2015,

                      House of Representatives,
          Committee on Oversight and Government Reform,
                                                Washington, DC.
        The committee met, pursuant to notice, at 10 a.m., in room
    2154, Rayburn House Office Building, the Honorable Jason
    Chaffetz (chairman of the committee) presiding.
        Present: Representatives Chaffetz, Mica, Jordan, Walberg,
    Amash, DesJarlais, Farenthold, Massie, Meadows, DeSantis, Buck,
    Walker, Blum, Hice, Russell, Carter, Grothman, Palmer,
    Cummings, Maloney, Norton, Connolly, Kelly, Lawrence, Lieu,
    Watson Coleman, Plaskett, DeSaulnier, Welch, and Lujan Grisham.
        Chairman Chaffetz. Good morning. The Committee on Oversight
    and Government Reform will come to order. Without objection,
    the chair is authorized to declare a recess at any time.
        We are here today to examine the FCC's rulemaking process
    and the agency's commitment to transparency. Three weeks ago,
    the FCC approved new rules that will dramatically increase the
    regulation of the Internet. The problem is Americans only got a
    chance to read them last week.
        Last month, Chairman Wheeler told Members of Congress that
    releasing the preliminary discussion draft ran contrary to
    ``decades of precedent'' at the Commission. In reality, the
    current process for making changes to Internet rules is far
    less transparent than what occurred with the equally
    controversial media ownership rule changes in 2007.
        In 2007, then-Senator Obama's ``strongly requested'' the
    FCC ``put out any changes that they intend to vote on in a new
    notice of proposed rulemaking.'' Senator Obama believed to do
    otherwise would be ``irresponsible.'' Then-Chairman Kevin
    Martin responded to these concerns by releasing the draft text
    of the rule changes and inviting a 4-week public comment
    period.
        In making the text public, Chairman Martin explained,
    ``Because of the intensely controversial nature of the . . .
    proceeding and my desire for an open and transparent process, I
    want to ensure that Members of Congress and the public had the
    opportunity to review my proposal prior to any Commission
    action.'' That didn't happen in this case so to suggest that
    there is no precedent for this, that is just not true.
        Chairman Martin went even further and, in December 2007,
    testified before Congress, more than once, about the rule
    changes. And yet we invited Commissioner Wheeler to come before
    us and he refused. Didn't have any problem meeting at the White
    House, but did have a problem coming before Congress.
        In today's case, Chairman Wheeler did quite the opposite
    and failed to provide this type of transparency. Chairman
    Wheeler did not make the rule public, did not invite public
    comment, and declined to appear before this committee. We find
    that wholly unacceptable.
        Further, it appears the FCC has been concealing certain
    communications from the public without legal basis.
        I want to put up a slide. We will refer to this later. But
    there are several reactions to requests that were made for
    Freedom of Information Act experiences.
        Do we have that slide? I guess not. I am going to keep
    going.
        Organizations that hold our Government accountable depend
    on the FOIA process to gain insight into agency decisionmaking.
    The FCC's track record in responding to FOIA requests is weak,
    at best.
        At the outset, the FCC denies more than 40 percent of all
    FOIA requests. The documents FCC does produce contain a number
    of redactions, including some that black out entire pages of
    text.
        This committee has received 1,600 pages of unredacted email
    traffic previously provided in a highly redacted form through
    FOIA requests to various organizations, including vice.com.
    Today we will compare these communications to understand what
    legal justification Mr. Wheeler's agency used to prevent this
    information from becoming public. In addition, we will examine
    the series of events resulting in the highly controversial vote
    to use Title II to regulate the Internet like a public utility.
        In May 2014, the FCC issued a Notice of Proposed Rulemaking
    concerning Internet regulation that indicated broadband and
    mobile services would remain classified under Title I. Public
    Statements made by Chairman Wheeler and communications received
    by this committee demonstrate that this was the chairman's
    intent during this time period.
        In October 2014, and after the FCC's public comment period
    ended, media reports indicate that Chairman Wheeler intended to
    finalize a hybrid approach that continued to classify broadband
    and mobile Internet services under Title I. Just days later,
    President Obama appeared in a YouTube video calling for a
    radically different proposal: full Title II reclassification,
    similar to a utility or telephone company. Emails provided to
    the committee by the FCC suggest that this came as a major
    surprise to the FCC staff, including Mr. Wheeler.
        On January 7th, Chairman Wheeler announced the FCC would
    radically alter course and reclassify broadband and mobile
    services under Title II. I am sure much will be made about the
    4 million comments that were made, but they were not made in
    the context of fully changing this to Title II. The FCC adopted
    the rule change on February 26th in a three to two vote.
        The lack of transparency surrounding the open Internet
    rulemaking process leaves us with a lot of questions. This is a
    fact-finding hearing. This committee remains committed to
    ensuring full transparency across Government, and I look
    forward to hearing more from Chairman Wheeler today.
        With that, I will now recognize the ranking member from
    Maryland, Mr. Cummings, for 5 minutes.
        Mr. Cummings. Thank you very much, Mr. Chairman.
        We are here today to discuss net neutrality, the rule that
    was adopted last month by the FCC.
        There are strong opinions on all sides of this issue. No
    doubt about it. On the one hand, Internet service providers,
    including Comcast, AT&T, Verizon and Time Warner, oppose the
    rule and lobbied against it. They argued that additional
    regulation would increase fees, reduce investment, slow network
    upgrades, and reduce competition and innovation.
        On the other hand, supporters of this new rule contend that
    ISPs should not be allowed to discriminate based on content.
    They believe ISPs should be required to act like phone
    companies, controlling the pipes that make up the Internet, but
    not what flows through them. Consumers, social media entities
    and companies like Facebook, Netflix, and Google favor open
    Internet policy because they do not want to be charged higher
    prices to provide their services.
        The question before the committee is not which policy we
    may prefer, but whether the process used by the FCC to adopt
    the rule was appropriate. Republicans who oppose the new rule
    allege that President Obama exerted undue influence on the
    process. But we have seen no evidence to support this
    allegation.
        Instead, the evidence before the committee indicates that
    the process was thorough, followed the appropriate guidelines,
    and benefited from a record number of public comments.
        I welcome Chairman Wheeler here today to discuss the
    process used by the FCC, and I would like to make several
    points for the record. First, the FCC received more comments on
    this rule than any other rule in its history. That is indeed
    very significant. As I understand it, the FCC received about 4
    million comments. This grassroots movement was highlighted when
    John Oliver, a popular late night talk show host, encouraged
    his viewers to go on the FCC website to comment on the proposed
    rule. The number of comments was also extremely high because
    the FCC established a 60-day comment period twice, twice as
    long as required by the Administrative Procedures Act.
        In addition, the President has a right to express his
    position on proposed rules, and he did so forcefully in this
    case. In November he made remarks in support of an open
    Internet rule, arguing that it is ``essential to the American
    economy.'' He said the FCC ``should create a new set of rules
    protecting net neutrality and ensuring that neither the cable
    company nor the phone company will be able to act as a
    gatekeeper, restricting what you can do or see online.''
        When he gave this speech, the President also ensured that
    his office submitted the appropriate ex parte filing. He did
    this through the National Telecommunications and Information
    Agency, which is tasked with providing the FCC with information
    about the Administration's position on policy matters.
        Presidents routinely make their positions known to
    independent agencies regarding pending rules. Presidents
    Reagan, George H.W. Bush, Clinton, and George W. Bush all
    expressed opinions on FCC regulations during their
    presidencies. In fact, for this neutrality rule there were more
    than 750 ex parte filings from individuals, public interest
    groups, lobbyists, corporations, and elected officials, all of
    whom had an opportunity to make their views known.
        Finally, if the committee is going to examine the actions
    of Chairman Wheeler and his communications with supporters of
    the rule, then we must also examine the actions of Republican
    Commissioners Pai, O'Reilly, and others who oppose the rule.
    Multiple press accounts indicate that they have been working
    closely with Republicans on and off, on and off Capitol Hill to
    affect the FCC's work, and we should review their actions with
    the same level of scrutiny.
        Chairman Wheeler, I want to thank you again for appearing
    before our committee today, and I look forward to your
    testimony.
        With that, Mr. Chairman, I yield back.
        Chairman Chaffetz. I thank the gentleman.
        I will hold the record open for five legislative days for
    any member who would like to submit a written Statement.
        We will now recognize our witness, the Honorable Thomas
    Wheeler, Chairman of the Federal Communications Commission. We
    welcome you here today and glad that you could join us.
        Pursuant to committee rules, all witnesses will be sworn
    before they testify, so if you will please rise and raise your
    right hand.
        Do you solemnly swear or affirm that the testimony you are
    about to give will be the truth, the whole truth, and nothing
    but the truth?
        [Witness responds in the affirmative.]
        Chairman Chaffetz. Thank you. We appreciate it.
        In order to allow time for discussion, we normally ask for
    your testimony to be limited to 5 minutes, but we are very
    forgiving on this. We would appreciate your verbal comments.
    Your entire written Statement will be made part of the record.
        Mr. Wheeler

     STATEMENT OF THE HONORABLE THOMAS WHEELER, CHAIRMAN, FEDERAL
                       COMMUNICATIONS COMMISSION

        Mr. Wheeler. Thank you very much, Mr. Chairman, ranking
    member, members of the committee. I will take that hint, as
    well as your forgiveness, and try to skip through some early
    paragraphs here.
        I am proud of the process that the Commission ran to
    develop the Open Internet Order. It was one of the most open
    and most transparent in Commission history, and the public's
    participation was unprecedented.
        Last April I circulated a draft Notice of Proposed
    Rulemaking that included a set of open Internet protections and
    also asked questions about the best way to achieve an open
    Internet. The Open Internet NPRM adopted in May proposed a
    solution based on Section 706 of the Telecommunications Act of
    1996. It also specifically asked extensive questions as to
    whether Title II of the Communications Act of 1934 would be a
    better solution.
        A quick point on our procedures. While, historically, some
    NPRMs just ask questions, during my chairmanship, I have made
    it a policy to present draft NPRMs to my colleague that contain
    specific proposals as a means to flag key concepts for
    commenters' attention. I believe this is an important part of
    an open and transparent rulemaking process. But let's be clear.
    The proposal is tentative, not a final conclusion, and the
    purpose of the comment period is to full test that concept. In
    this instance, as in others, it worked in the desired way to
    focus the debate.
        The process of the Open Internet rulemaking was one of the
    most open and expansive processes the FCC has ever run. We
    heard from startups; we heard from ISP; we heard from a series
    of public roundtables; as Mr. Cummings mentioned, we heard from
    750 different ex partes; we heard from over 140 Members of
    Congress; we heard from the Administration both in the form of
    President Obama's very public Statement on November the 10th
    and in the form of the MTIA's formal submission.
        But here I would like to be really clear. There were no
    secret instructions from the White House. I did not, as CEO of
    an independent agency, feel obligated to follow the President's
    recommendations. But I did feel obligated to treat it with the
    respect that it deserves, just as I have treated with similar
    respect the input, both pro and con, from 140 Senators and
    Representatives. And most significantly, as has been pointed
    out, we heard from 4 million Americans.
        We listened and learned throughout this entire process, and
    we made our decision based on a tremendous public record.
        My initial proposal was to reinState the 2010 rules. The
    tentative conclusion put forth in the NPRM suggested that the
    FCC could assure Internet openness by applying a ``commercial
    reasonableness'' test under Section 706 to determine
    appropriate behavior of ISPs. As the process continued, I
    listened to countless consumers, innovators, and investors
    around the Country.
        I also reviewed the submissions in the record and became
    concerned that the relatively untested ``commercially
    reasonable'' standard might be subsequently interpreted to mean
    that what was reasonable for ISP's commercial arrangements, not
    what was reasonable for consumers. That, of course, would be
    the wrong conclusion, and it was an outcome that was
    unacceptable.
        So that is why, over the summer, I began exploring how to
    utilize Title II and its well-established ``just and
    reasonable'' standard. As previously indicated, this was an
    approach on which we had sought comment in the NPRM and about
    which I had specifically spoken, saying that all approaches,
    including Title II, were ``very much on the table'' for
    consideration.
        You have asked whether there were secret instructions from
    the White House. Again, I repeat the answer is no.
        Now, the question becomes whether the President's
    announcement on November 10th had an impact on the Open
    Internet debate, including at the FCC. Of course it did.
        The push for Title II had been hard and continuous from
    Democratic Members of Congress. The President's weighing in to
    support their position gave the whole Title II issue new
    prominence. Of course, we had been working on approaches to
    Title II, including a combined Title II/Section 706 solution,
    for some time. The President's focus on Title II put wind in
    the sails of everyone looking for strong open Internet
    protection. It also encouraged those who had been opposing any
    Government involvement to, for the first time, support
    legislation with bright line rules.
        And as I considered Title II, it became apparent that,
    rather than being a monolith, it was a very fluid concept. The
    record contained multiple approaches to the use of Title II.
    One of those was the Title II/Section 706 ``hybrid'' approach
    that bifurcated, some would say artificially, Internet service.
    Another, the approach we ultimately chose, used Title II and
    Section 706, but without bifurcation. And still another, the
    one the President supported, was only Title II without Section
    706. All of these were on the table prior to the President's
    Statement.
        But let me be specific. We were exploring the viability of
    a bifurcated approach. I was also considering using Title II in
    a manner patterned after its application in the wireless voice
    industry, and I had, from the outset, indicated a straight
    Title II was being considered.
        A key consideration throughout this deliberation was the
    potential impact of any regulation on the capital formation
    necessary for the construction of broadband infrastructure. An
    interesting result of the President's Statement was the absence
    of a reaction from the capital markets. When you talk about the
    impact of the President's Statement, this was an important data
    point, resulting, I believe, from the President's position
    against rate regulation. It was, of course, the same goal that
    I had been looking to achieve from the outset.
        As we moved to a conclusion, I was reminded how it was not
    necessary to invoke all 48 sections of Title II. In this
    regard, I had been considering the substantial success of the
    wireless voice industry after it was deemed a Title II carrier
    pursuant to Section 332 of the Communications Act. In applying
    Title II, but limiting its applicable provisions, the Congress
    and the Commission in that Act enabled a wireless voice
    business with hundreds of billions of dollars of investment and
    a record of innovation that makes it the best in the world.
    This is the model for the ultimate recommendation that I put
    forward to my colleagues.
        There were other industry data points that informed my
    thinking and the Commission's analysis. One was the recognition
    of interconnection as an important issue, a topic not addressed
    by the President. Another was my letter to Verizon Wireless
    about its announcement to limit ``unlimited'' data customers if
    the subscriber went over a certain amount of data, a policy it
    ultimately reversed.
        Of particular note was the active bidding, and ultimately
    overwhelming success, of the AWS-3 spectrum auction at the end
    of 2014 and the beginning of 2015, which showed that investment
    in networks, even in the face of the potential classification
    of mobile Internet access under Title II, continued to
    flourish. Other industry data points included the work of Wall
    Street analysts and the Statements of the ISPs themselves.
    Sprint, T-Mobile, Frontier, and hundreds of small rural
    carriers said that they would continue to invest under this
    Title II framework that we were developing.
        Ultimately, the collective findings of the public record
    influenced the evolution of my thinking and the final
    conclusion that modern, light-touch Title II reclassification,
    accompanied by Section 706, provides the strongest foundation
    for Open Internet rules. Using this authority, we adopted
    strong and balanced protections that assure the rights of
    Internet users to go where they want, when they want, protect
    the open Internet as a level playing field for innovators and
    entrepreneurs, and preserve the economic incentives for ISPs to
    invest in fast and competitive broadband networks.
        I stand ready to answer your questions.
        [Prepared Statement of Mr. Wheeler follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Chairman Chaffetz. Thank you. I will recognize myself for 5
    minutes.
        Chairman, did you or the FCC ever provide the White House
    the proposed rule prior to the final vote?
        Mr. Wheeler. No, sir.
        Chairman Chaffetz. The comment period was open May 15th.
    How many times did you meet either at the White House or did
    the White House officials come meet with you during that time?
        Mr. Wheeler. In total? I mean, about any issue?
        Chairman Chaffetz. Yes.
        Mr. Wheeler. I think that we have shown you my calendar
    that has something like 10.
        Chairman Chaffetz. June 11th with Jason Furman, correct?
        Mr. Wheeler. You have the list, sir.
        Chairman Chaffetz. June 18th with Jeffrey Zients; Caroline
    Atkinson, July 17th; September 11th, Jeffrey Zients; September
    30th, Megan Smith; October 15th, Jason Furman; October 28th,
    Jeffrey Zients; and then Mr. Zients visiting with you on
    November 9th at the FCC. Does that sound accurate?
        Mr. Wheeler. If that is the list that we provided, sir.
        Chairman Chaffetz. And yet you only provided an ex parte
    for one of those meetings. Why is that?
        Mr. Wheeler. First of all, the rules are quite clear on
    what constitutes an ex parte, and that is an attempt to file
    specifically in a specific docket and to influence the outcome
    of that docket.
        Chairman Chaffetz. Did you discuss this matter during those
    meetings?
        Mr. Wheeler. And there are provisions long established,
    going back to, I think, the Bush Administration Office of
    Legislative Council.
        Chairman Chaffetz. Sir, I have 5 minutes. I need to ask
    very specific questions.
        Mr. Wheeler. But I need to answer your question. There is
    no requirement. You are asking about ex partes, and there is no
    requirement that there be an ex parte filed. There was no need
    for an ex parte to be filed, either. I just wanted to make sure
    that we have both explained.
        Chairman Chaffetz. I don't understand that. You met with
    them. Are you telling me that this proposed rule did not come
    up in any of those meetings but one?
        Mr. Wheeler. I don't know the details of those meetings. I
    can't recall the details of those meetings. I can assure you
    that there were no, nothing that would trigger an ex parte.
        Chairman Chaffetz. So you were meeting with the White House
    multiple times during the open comment period, after the
    comment period closes, and we are supposed to believe that one
    of the most important things the FCC has ever done, that this
    didn't come up and you didn't have any discussions, that they
    didn't comment back to you about what you were doing? Is that
    what we are supposed to believe?
        Mr. Wheeler. The Administration was very scrupulous in
    making it clear that I was an independent agency.
        Chairman Chaffetz. I guess the point is, chairman, you met
    with them multiple times. They came to visit you, you went to
    visit them. But we invite you to come and you refuse. We ask
    you to send us some documents. You didn't send us a single one.
    And that double standard is very troubling for us.
        I need to move on.
        Mr. Wheeler. Mr. Chairman, one thing here. I did agree to
    come. I am here.
        Chairman Chaffetz. No, but before the rule. You met with
    the White House before the rule but you didn't meet here.
        Mr. Wheeler. You gave me a week's notice. You asked for the
    production of documents.
        Chairman Chaffetz. That is usually what we give people.
        Mr. Wheeler. There were other committees that I am also
    trying to respond to. I said in the response I would look
    forward to coming to you and I look forward to being here
    today.
        Chairman Chaffetz. And I didn't believe you then and I
    don't believe you now. You said that you would not come to
    visit with us. You didn't send us a single document that we
    asked for before that rule. That is just not right.
        Mr. Wheeler. I think we sent you 1,800 documents.
        Chairman Chaffetz. After the rule. My complaint is that
    beforehand you didn't. And you met with multiple times with the
    White House. I am moving on. Hold on.
        Mr. Wheeler. OK.
        Chairman Chaffetz. Our time is short. This is the way it
    works.
        On September 23d, multiple people met at the White House. I
    am going to enter into the record, ask unanimous consent this
    Daily Callar article of February 23d, 2015, White House log
    showing that a number of people met at the White House that are
    activists on this topic.
        Chairman Chaffetz. I want to play a video clip. This is
    6:55 in the morning of the day that the President is going to
    issue his Statement. This is you, right, at your home?
        Mr. Wheeler. Yes, sir.
        Chairman Chaffetz. And you woke up that morning to
    protesters out in front of your house; they laid down or sat
    down in front of your car, wouldn't let you get out of your
    driveway. They were there trying to make quite a Statement. And
    there is a long 5-minute video of this.
        At 7:35 that morning you sent out an email to your fellow
    commissioners calling it an interesting development, and then
    later that afternoon--I want to put up a slide.
        [Slide.]
        Chairman Chaffetz. Now, when this was provided to vice.com,
    you redacted this. This was all redacted. Hard to see up on the
    screen, but we don't understand why this was redacted. This is
    what you wrote. In fact, if you want to read it, go ahead.
        This is the same day; 6:55 in the morning, protesters show
    up; 7:35 you are sending out a concern. Then, all of a sudden,
    the President's Statement comes out in a very coordinated
    fashion. He has the right to weigh in on this, that is fine.
        But later that afternoon you send out this email, it says,
    FYI isn't it interesting? The day of the demonstration just
    happens to be the day folks take action at my house. The video
    POTUS just happens to end up the same message as the message
    for POTUS. The White House sends an email to the supporters
    list asking ``Please pass this on to anyone who cares about
    saving the Internet.'' And then you write, hmm. Why did you
    write that?
        Mr. Wheeler. Does this suggest a secret plan, secret set of
    instructions?
        Chairman Chaffetz. I am asking you why. You wrote it. It is
    your language.
        Mr. Wheeler. I think that this clearly is showing that
    there was no kind of coordination.
        Chairman Chaffetz. There was no coordination? The
    protesters show up, just happen to show up the morning before
    the announcement comes? Nobody knows that the President is
    going to make this announcement except the protesters, who show
    up at your home, and you are saying that, you are the one that
    wrote that you thought, hmm, isn't it interesting.
        Mr. Wheeler. Excuse me, I wasn't speaking clearly, clearly.
    No, I am talking about coordination with us at the Commission.
    I don't know who else they were coordinating with, and this
    suggests that maybe they were coordinating with others.
        Chairman Chaffetz. So you had multiple meetings with the
    White House, they came to visit you, and we are supposed to
    believe that there was only one discussion about this? Is that
    still your testimony?
        Mr. Wheeler. Let me be really clear. They came once to meet
    with me and filed an ex parte----
        Chairman Chaffetz. Yes, that is true.
        Mr. Wheeler [continuing]. At which time I was told, as the
    ex parte says, the President is going to make an announcement a
    couple days later, and he is going to endorse Title II. That is
    all I knew. The other meetings at the White House, I was there
    on trade, I was there on national security issues, I was there
    on Spectrum, I was there on auctions, I was there on E-Rate.
        There were numerous issues. Caroline Atkinson was one of
    the names that you named when you were going through the list.
    I can assure you I didn't talk to her about Open Internet
    because she knows nothing about Open Internet. That entire
    conversation, and several that I have had with her, have been
    about trade issues and the process for reviewing agreements
    that relate to national security items.
        Chairman Chaffetz. So you only spoke one time with Jeffrey
    Zients about this, one time?
        Mr. Wheeler. The only time that Jeffrey Zients said to me
    this is what the President's position is was when he came and
    filed an ex parte saying that. I have been repeatedly saying I
    know the President has a strong position in favor of it the
    open Internet, as do I, and keeping them informed that I was
    fighting for a strong open Internet position.
        Chairman Chaffetz. So you informed them and you are telling
    me they had no reaction, no comments?
        Mr. Wheeler. I informed them that I had a strong position
    in favor of. As a matter of fact, I believe you have emails
    that show that I have emails with them saying, hey, these press
    reports that I am watering this down aren't true.
        Chairman Chaffetz. I have lots more questions, but my time
    is far exceeded.
        We will now recognize the ranking member, Mr. Cummings, for
    5 minutes.
        Oh, sorry, Mr. Welch. Mr. Welch of Vermont, you are
    recognized for 5 minutes.
        Mr. Welch. Thank you very much.
        Let's get right to this. Mr. Wheeler, this was probably one
    of the most contentious questions, public policy questions that
    we have faced in the time I have served in Congress, 4 million
    comments. All of us, as Members of Congress, received comments.
    The two things that I understood were of concern to you and
    your fellow commissioners, Republican and Democrat, were how
    would whatever decision you made affect innovation and capital
    formation, the build-out, is that correct?
        Mr. Wheeler. That was the balance, sir.
        Mr. Welch. And was that something that, over time, you all
    debated to try to figure out what would be the impact of
    whatever direction you took?
        Mr. Wheeler. Yes, sir. The whole rulemaking process is an
    evolutionary process, and, as I said in my Statement, the whole
    concept of what Title II is is a fluid and evolutionary
    process.
        Mr. Welch. All right. And the premise of this hearing seems
    to be almost like a Watergate type of deal, what did you know
    and when did you know it. But in public policy, when you are
    trying to figure out what you can know and get to a good public
    policy decision, it is a back and forth discussion; it is
    listening to the 4 million comments, it is listening to Members
    of Congress, oh, and, incidentally, the President of the United
    States, elected by everybody is a relevant commentator, is that
    correct?
        Mr. Wheeler. I can tell you I was constantly learning
    through this process.
        Mr. Welch. All right. Now, there was, in The New York
    Times, a report about a previous matter at the FCC where
    President Reagan had the commissioner in for 45 minutes. Did
    President Obama ever summon you to the White House for the
    purpose of a 45 minute discussion about the way it is going to
    be with this order that you were considering?
        Mr. Wheeler. No, sir. President Obama has never summoned me
    to the White House to discuss anything the FCC is doing.
        Mr. Welch. All right. And you indicated on this capital
    formation issue, after the President, who, by the way, was
    obviously aware of the enormous grassroots concern about the
    outcome, that when he made his comment, you observed what was
    the impact on the markets, correct?
        Mr. Wheeler. Yes, sir.
        Mr. Welch. And what was that impact?
        Mr. Wheeler. There was zero impact on the market. And one
    of the concerns that all of the ISP's had been making is
    understand what the consequences of an action in Title II may
    be on the markets and, lo and behold, there wasn't.
        Mr. Welch. In fact, in the case of another country that has
    done this, Denmark, I believe, have they continued to have open
    access and capital formation with respect to the build-out of
    their Internet?
        Mr. Wheeler. You are better informed than I am, sir, on
    Denmark.
        Mr. Welch. OK. Now, just on this capital formation issue,
    you mentioned the Spectrum auction. Did that exceed what was
    expected to be revenues from that auction?
        Mr. Wheeler. Significantly. We raised about $41 billion,
    which was triple what some of the estimates were.
        Mr. Welch. And with respect to the market since then, has
    there been any major disruption that can be attributed to the
    decision that you made?
        Mr. Wheeler. The market has continued to advance northward
    on the valuations of these stocks.
        Mr. Welch. All right. And my understanding, as well, is one
    of your enormous concerns when you initially proposed possibly
    using Section 706 was the wariness about having too heavy-
    handed a regulatory regime. And you have some history in the
    industry. Were there factors that you took into consideration
    in the decision on Title II about what type of regulatory
    framework that would be applicable?
        Mr. Wheeler. Yes, sir. The model that was built for the
    wireless industry, which the wireless industry sought, by the
    way, was to use Title II and to have them declared a common
    carrier, but then to forebear, to not enforce those parts of
    Title II that are no longer relevant.
        Mr. Welch. And is it your intention to work with your
    fellow commissioners, both Republican and Democrat, in order to
    achieve that light touch approach?
        Mr. Wheeler. Yes, sir, and I believe this rule has. As a
    matter of fact, there are 48 sections to Title II, and we have
    forborne from 27 of those, and that just compares with the 19
    that were forborne from in the wireless environment.
        Mr. Welch. OK. I want to go back basically to the money
    question here, the suggestion that somehow, some way, President
    Obama, who has a right to express an opinion, muscled you and
    the Commission into doing something that you did not want to
    do, and as suggestions that that was the case, the Chairman has
    indicated a number of meetings you had with folks from the
    White House. I just want to give you an opportunity to say
    whether the President gave you directions, explicit or
    implicit, as to how you should do your job or left it to you to
    exercise your judgment and your persuasive ability with your
    fellow commissioners.
        Mr. Wheeler. No, the President did not. And I interpreted
    what the President's Statement was was that he was joining with
    the 64 Democratic Members of Congress and the millions of
    people, and that he was identifying with them.
        Mr. Welch. Thank you, Mr. Wheeler.
        I yield back.
        Chairman Chaffetz. I thank the gentleman.
        We will now recognize the gentleman from Ohio, Mr. Jordan.
        Mr. Jordan. Thank you, Mr. Chairman.
        Mr. Wheeler, in your testimony you said that the Notice of
    Proposed Rulemaking adopted in May proposed a solution based on
    Section 706 of the Telecommunications Act. In fact, that seems
    to be your position throughout most of 2014, a 706-based
    approach. In fact, you testified on May 20th of last year, in
    front of Energy and Commerce Committee, that Section 706
    approach is sufficient to give the FCC what it needs for an
    open Internet. And as late as October 30th of last year, The
    Wall Street Journal wrote, ``Chairman Wheeler will move forward
    with a 706-based approach.''
        Now, back to where the chairman was. All that seems to
    change on November 10th, where you State publicly that now
    Title II is definitely in the mix, and that is ultimately the
    direction that the Commission took. So my question is real
    simple: What changed between October 30th and November 10th?
        Mr. Wheeler. Mr. Jordan, I think that is an incorrect
    assumption.
        Mr. Jordan. I am using your Statements, Mr. Wheeler. I am
    using what The Wall Street Journal, did they get it right or
    were they wrong?
        Mr. Wheeler. So on February 19th I said that we keep Title
    II authority on the table. The Commission has authority to keep
    Title II if warranted.
        Mr. Jordan. I am not disputing that.
        Mr. Wheeler. There is a laundry list, sir, where I said
    that.
        Mr. Jordan. Hang on. Hang on. But your testimony, I am
    quoting from today's testimony you just read. The proposed rule
    was a 706-based approach, and The Wall Street Journal, as late
    as October 30th, said a 706 approach was what Chairman Wheeler
    was going to move forward with. It changes on the 10th. What
    happened between the 30th and the 10th seems to me two events:
    one, the President made his YouTube video and commented and
    moved toward a Title II approach and he issued a Statement,
    and, two, you had an important meeting with Mr. Zients on
    November 6th.
        Mr. Wheeler. I think that is an incorrect assumption, sir.
        Mr. Jordan. I am going by the time line, the stuff you
    provided.
        Mr. Wheeler. Let me quote from The New York Times the day
    after The Wall Street Journal, saying there are four options on
    the table.
        Mr. Jordan. No, no, no. You can respond when I ask you a
    question. That is how it works.
        Mr. Wheeler. OK.
        Mr. Jordan. All right. So now let me just go through where
    the chairman was earlier, your interactions with the White
    House. March 6th, FCC Chairman Tom Wheeler meets with Jeff
    Zients. Now, here is where you can answer something. Who is
    Jeff Zients, by the way?
        Mr. Wheeler. He is the head of the National Economic
    Council.
        Mr. Jordan. OK, at the White House, right? And assistant to
    the President for economic policies, got this long title,
    right?
        Mr. Wheeler. Correct.
        Mr. Jordan. OK. So you met with him on March 6th. March
    7th, FCC Chairman Tom Wheeler meets with the White House
    economic advisor, Jeff Zients; May 7th, meeting with Jeff
    Zients at the White House; May 21st, Tom Wheeler meets with
    Jeff Zients at the White House; June 11th, Tom Wheeler meets
    with the Economic Council advisors at the White House; June
    18th, Wheeler meets with Jeff Zients at the White House;
    September 11th, Tom Wheeler meets with Jeff Zients at the White
    House; October 15th, Tom Wheeler meets again with White House
    economic advisors; and October 28th, Tom Wheeler meets with
    Jeff Zients at the White House.
        So, again, leading up to October 30th, you met with the
    White House nine different times, all at the White House with
    Mr. Zients, who is the assistant to the President for economic
    policy. And up through October the position of the Commission,
    according to The Wall Street Journal and according to your
    testimony in front of Congress is a 706-based approach. That
    changes just a few days later. And I would argue it changes on
    November 6th, when again you met with Mr. Zients.
        But the one difference here, Mr. Wheeler, the one
    difference here is nine times you went to the White House; on
    November 6th Jeff Zients comes to you. As I look at the record,
    this is the only time he came to you, and my contention is, and
    I think where the chairman is and, frankly, where a lot of
    Americans would be as they look at this record is Jeff Zients
    came to you and said, hey, things have changed; we want the
    Title II approach to this rule.
        Now, am I wrong?
        Mr. Wheeler. Yes. First of all, there may have been nine
    meetings, but I tell you, I listed them a moment ago and I
    won't go through them again.
        Mr. Jordan. No, there were nine meetings at the White House
    where you went to the White House. There is one meeting when
    Jeff Zients comes to you. And the meeting when he comes to you
    is right before everything changes.
        Mr. Wheeler. The long list dealing with trade, dealing with
    cyber, dealing with auctions, and as I said in my testimony,
    before there was any input there were multiple issues on the
    table, including a Title II and 706 approach and a hybrid----
        Mr. Jordan. I have 29 seconds. Hang on 1 second, Mr.
    Wheeler.
        Mr. Wheeler. But it is a mistake to say that the only thing
    that was on the table was Section 706.
        Mr. Jordan. I didn't say that.
        Mr. Wheeler. I thought you had.
        Mr. Jordan. No, I said nine times you met with him and you
    testified in front of Congress 706 and The Wall Street Journal
    report that is what you were going to do, and then it changes a
    couple days later. I have 11 seconds.
        Mr. Wheeler. And The Wall Street Journal report was wrong.
        Mr. Jordan. I have 11 seconds. In your testimony you say, I
    want to be clear, there were no instructions from the White
    House. I did not, as CEO of an independent agency, feel
    obligated to follow the President's recommendations.
        One last question, if I could, Mr. Chairman.
        Mr. Wheeler, who is Philip Verveer?
        Mr. Wheeler. He is a special counsel in my office, senior
    counsel in my office.
        Mr. Jordan. Your top lawyer. Your top advisor. Senior
    counsel.
        Mr. Wheeler. He is an advisor, yes.
        Mr. Jordan. OK. Well, this is an email our staff got with
    Mr. Verveer and a lobbyist from AT&T on the 10th, the day this
    all changes, 4 days after Mr. Zients came to you. After you
    went nine times to the White House in the course of a year, Mr.
    Zients comes to you, everything changes, and this is what the
    AT&T representative said to your senior counselor: This is
    awful and bad for any semblance of agency independence. Too
    many people saw Zients going in to meet with Tom last week.
        So I am not the only one who thinks everything changed on
    November 6th. This individual talked to your senior counselor
    and said things changed on November 6th when, again, the White
    House came to you and said, Mr. Wheeler, new sheriff in town,
    things are different, it is Title II from this point forward.
    And that is ultimately what you all adopted. Even though you
    had a 706 plan all this time, you ultimately adopted a Title II
    approach.
        Mr. Wheeler. We did not adopt a Title II approach. We
    adopted a Title II and Section 706, which I believe, I can't
    read it all, but I think it is referenced in the first line of
    that email.
        Chairman Chaffetz. The gentleman's time has expired.
        Mr. Cummings. Mr. Chairman, with all due respect, the
    gentleman just went over a minute and a half. At least I would
    ask that he be allowed to answer that question.
        Chairman Chaffetz. Sure. Go ahead.
        Mr. Wheeler. Thank you. There were, and as I was pointing
    out, The New York Times actually wrote the day after this Wall
    Street Journal article, that hybrid ``is one of the four
    possibilities the FCC is considering as it seeks to draw up a
    net neutrality framework that unlike the last two attempts will
    hold up in court.'' The Title II and 706 usage, as I said in my
    testimony, was on the table along with a Title II and 706 non-
    hybrid, along with 706, along with Title II by itself.
        Chairman Chaffetz. Now recognize the gentlewoman from New
    York, Mrs. Maloney, for 5 minutes.
        Mrs. Maloney. Thank you.
        Chairman Wheeler, it has been reported that the proposed
    open net neutrality rule received 4 million comments, and I am
    curious, compared to other rules before the FCC, did any other
    rule get anywhere near this number of comments?
        Mr. Wheeler. No, ma'am, and it broke our IT system.
        Mrs. Maloney. I heard that. Do you have a sense of what
    percentage of the comments were in favor of net neutrality? I
    know that thousands of comments came in to my office, and all
    of them were in favor of an open Internet and net neutrality.
    What about your comments?
        Mr. Wheeler. I think they ran about three to one in favor.
        Mrs. Maloney. Three to one in favor. There were also
    several online petitions. I know of one, Free Press, but there
    were several others. Are you aware of these online petitions?
        Mr. Wheeler. Yes, ma'am.
        Mrs. Maloney. And I also know that there were
    demonstrations, even in your house, and open meetings and
    forums and all kinds of comment periods that you participated
    in. And I assume you are familiar with the popular late night
    host, John Oliver. He had a piece about net neutrality this
    summer that went viral, and he was highly critical of you and
    your time as a lobbyist. Are you aware of his program?
        Mr. Wheeler. Yes, ma'am. I had new research that had to do
    with what a dingo was.
        Mrs. Maloney. OK. Well, he encouraged his viewers in this
    program to go to the FCC site and to register their position,
    and I understand that after his piece aired that you had to
    extend the comment period, that it even broke down there were
    so many comments coming in in favor of net neutrality and an
    open Internet. Is that true?
        Mr. Wheeler. Yes, ma'am.
        Mrs. Maloney. So do you have any idea how many comments
    were submitted after John Oliver's show? Did you break that
    down? How many came in?
        Mr. Wheeler. I don't know that off the top of my head; I
    can get that for you.
        Mrs. Maloney. Would you get that for the committee?
        Mr. Wheeler. Yes, ma'am.
        Mrs. Maloney. And all that attention on you and the efforts
    of the individuals that commented, the grassroots
    organizations, and the John Oliver piece, is it fair to say
    that they had some impact on your decisionmaking process, is
    that correct?
        Mr. Wheeler. Well, they all went in to the record, No. 1,
    and the decision was made on the record, and obviously there
    was a high level of concern. I also met around the Country.
        Mrs. Maloney. I know, you went all around the Country
    holding public forums and listening to comments.
        Mr. Wheeler. And those had great impact.
        Mrs. Maloney. So I would like to ask you, I am very
    curious. In your opinion, who had the greater impact on the
    FCC's rule, President Obama's comment or John Oliver's show?
        Mr. Wheeler. Well, you know, I tend to view that what was
    going on was the President was signing on to the 64 Members of
    Congress and the millions of people who had told they want
    Title II.
        Mrs. Maloney. I sincerely want to thank you, Chairman
    Wheeler. It appears that the voices of the American people were
    listened to and that you made the proper choice. I commend you
    for keeping an open mind during this process and for doing what
    is right for the American people and, I believe, the economy.
        So I would just say, with all due respect, I believe that
    my Republican colleagues are looking at this issue in the wrong
    way. They should be thanking President Obama for coming out
    strongly in favor of an open Internet rule, clearly where the
    American public is and clearly where the economists are, and
    they shouldn't be criticizing him.
        What I am hearing here today is similar to the hearings we
    have had on the auto industry, where the restructuring that
    President Obama did, with the support of Congress, to the auto
    industry, it was highly critical, they were very critical of
    it. But now it is reported it saved 500 jobs; we are now
    exporting autos; we had the biggest sales of American autos in
    the history of our Country. It was the right decision and I
    believe this is the right decision for the American people, and
    I want to thank you.
        Mr. Wheeler. Thank you, ma'am.
        Mr. Cummings. Would the gentlelady yield?
        Mrs. Maloney. I most certainly will.
        Mr. Cummings. Chairman Wheeler, much has been made about
    these emails between some of the FCC staff on November 10th,
    2014, the day of the President's announcement. Up until the
    President's announcement, were a majority of the public
    comments in favor of an open net policy?
        Mr. Wheeler. Yes, sir.
        Mr. Cummings. In light of all of these public comments, was
    Title II being explored by your staff?
        Mr. Wheeler. We were deep into Title II and a Title II 706
    combination.
        Mrs. Maloney. Mr. Ranking Member, may I reclaim my time?
        Mr. Cummings. Of course.
        Mrs. Maloney. I just want to end by saying that President
    Obama saved the auto industry. He saved the auto industry and
    he saved the Internet, and I believe very strongly that
    Republicans are on the wrong side of this issue for the economy
    and for the American people.
        Chairman Chaffetz. Thank the gentlewoman.
        We will now recognize the gentleman from Florida, Mr. Mica,
    for 5 minutes.
        Mr. Mica. Thank you, Mr. Chairman.
        Welcome. I think this boils down to people are trying to
    figure out why you were against the President's policy on net
    neutrality before you became for the President's policy and in
    a very abrupt turn, and some of it evolves around
    circumstances. The Zients meeting with you appears to be very
    influential. It appears, too, from some of the communications I
    have seen, May 15th, is that when you were releasing the NPRM?
        Mr. Wheeler. Yes, sir.
        Mr. Mica. I have a copy of an email from Senate Chief of
    Staff, this is Mr. Reid's chief of staff at the time, David
    Krone. Do you know him?
        Mr. Wheeler. Yes, sir.
        Mr. Mica. It appears like there was enlistment to try to
    keep your previous position intact. He said, good luck today.
    Not sure how things have landed, but trust to make it work.
    Please shout out if you need anything. Spoke again last night
    with the White House and told them to back off Title II. Went
    through, once again, the problems it creates for us.
        Do you remember this email?
        Mr. Wheeler. Yes, sir.
        Mr. Mica. OK. Well, it appears that, in defense of your
    trying to come up with a certain position, that people were
    trying to back you. It looks like Senator Reid was backing you
    at that time, right? Or at least this is the indication we
    have. And he was trying to get the White House to back off
    pressuring you. Is that correct?
        Mr. Wheeler. So I am really grateful for this question, Mr.
    Mica, because there is, I think, a couple of things that are
    important to respond to. One is that the President was clear he
    was for a strong open Internet during the campaign----
        Mr. Mica. But before his position, you were against his
    position, and you had allies that were trying to help you. I
    mean, Reid was a big cheese at that time, and this was his
    chief of staff. I was a chief of staff on the Senate; I know
    the power that they wield.
        Mr. Wheeler. Yes, sir. And what I was saying is the against
    it before you were for it, the answer in that is no.
        Mr. Mica. Well, no. I mean, everything we have, every
    public document, and some of it has been cited here, you were
    taking a different course. You took a different course, too, in
    even rolling this out. You offered a proposal, is that correct?
        Mr. Wheeler. I have testified, sir, that this is an
    evolutionary process.
        Mr. Mica. The proposal was very scant on mention of Title
    II.
        Mr. Wheeler. No, it was very rich in the mentioning of
    Title II and specifically said is it better.
        Mr. Mica. OK.
        Mr. Wheeler. But be that as it may, as I said, this was a
    evolutionary process, and the job of a regulator is to put
    forth a proposal to see what it attracts in terms of concerns,
    and to learn from that experience and to evolve; and that is
    what I did through this entire process.
        Mr. Mica. But, see, everything we have indicates that you
    were headed in a different direction. You were trying to stem
    the tide of the White House. I mean, you were in an awkward
    position. And even Commissioner Pai, is it, he said in his
    dissenting Statement, President Obama's endorsement of Title II
    forced a change in the FCC's approach. So maybe everyone else
    who has been observing this process, your comments up to date,
    and even one of the commissioners is in conflict with what you
    believe.
        Mr. Wheeler. Mr. Mica, before the President made his
    comment, we were working on a Title II and 706 solution. After
    he made his comment, he delivered a Title II and Section 706.
        Mr. Mica. And I think Mr. Zients, on November 6th, strong-
    armed you. I mean, it is pretty evident and everyone saw it.
        Mr. Chairman, let me yield to you.
        Chairman Chaffetz. Could we put up the slide, please?
        [Slide.]
        Chairman Chaffetz. I want to know why you felt compelled to
    communicate with the White House about what The New York Times
    was writing. This was back in April. You started with this: The
    New York Times is moving a story that the FCC is gutting the
    open Internet rule. It is flat out wrong. Unfortunately, it has
    been picked up by various outlets. You go through and explain
    it. Then you send that to Jeffrey Zients. Then you also send
    one to John Podesta, sorry, I should have had you on the first
    email. Podesta writes back to you, brutal story. Is somebody
    going to go on the record to push back? You write back to him,
    Yes. I did with a Statement similar to what I emailed you.
        You are supposed to be an independent agency, and you are
    interacting regularly with the White House on how to
    communicate on the PR of a New York Times story?
        Mr. Wheeler. So, Mr. Chairman, I had said that we were
    going to reinState the 2010 rules, which the President had
    endorsed. The report in The New York Times was saying he is not
    doing that. I was, therefore, responding and saying you should
    know that that report is not true.
        At the same point in time I have furnished you also emails
    to Members of Congress, Democratic Members of Congress, saying
    the same point, and that was what this was. This was, look, the
    2010 rules I stand behind and I am not out in a campaign to gut
    them, which is what was being reported in the press. And one of
    the subsequent emails I sent, as you will recall, was an
    article that said, oh, wait a minute, this was
    mischaracterized; and that is what that exchange was about.
        Chairman Chaffetz. Then why are you redacting all of this
    in a FOIA request? How does that meet the standard of FOIA? Why
    is this redacted?
        Mr. Wheeler. I have to tell you the FOIA, how we respond to
    FOIA is done by career staff, not in my supervision, based on
    longstanding procedures. I can't answer why certain things are
    blacked out.
        Chairman Chaffetz. This Administration might want to take
    some lessons about FOIA and how to respond to it, because I am
    tired of having the heads of the agencies saying, oh, I don't
    know anything about it. This is the public's right to know.
    This is how the public understands what is happening and not
    happening, and your organization is redacting this information,
    and it is wrong. I need a further explanation. When can you
    give us a further explanation as to why these types of material
    is redacted? What is a reasonable time to respond?
        Mr. Wheeler. I would be happy to have the staffs work and
    provide that to you.
        Chairman Chaffetz. By when?
        Mr. Wheeler. With expedition.
        Chairman Chaffetz. Can you give me a date? By the end of
    the month, is that fine?
        Mr. Wheeler. Sure.
        Chairman Chaffetz. Thank you.
        We will now recognize the gentlewoman from the District of
    Columbia, Ms. Norton, for 5 minutes.
        Ms. Norton. Thank you, Mr. Chairman.
        Chairman Wheeler, you know, it is very hard to make a case
    against net neutrality, and these members don't want to go home
    and make that case, so they are trying to make a case, for
    example, against hearing the opinion of the President of the
    United States on neutrality. This is a very important policy
    issue. It is inconceivable in our Republic that the President
    would be silenced on it.
        I ran an independent agency. I looked to see what the rules
    were in this case. The fact of an administration weighing in on
    such a notion is not new, is it?
        Mr. Wheeler. No, ma'am.
        Ms. Norton. In fact, I was able to discover that Presidents
    Reagan, H.W. Bush, Clinton, George W. Bush have all weighed in
    specifically on FCC policies in the past, is that not correct?
        Mr. Wheeler. Yes, ma'am.
        Ms. Norton. I can understand that in such a case where
    there might be some appearance, after all, you are an
    independent agency and you must abide by that independence,
    that you would go to your office of legal counsel. And as it
    turns out, there is an office of legal counsel's opinion
    advising the then-President George H.W. Bush on whether it was
    indeed permissible for that president to contact the FCC to
    advocate for a specific position on rulemaking. Is that not
    correct?
        Mr. Wheeler. Yes, ma'am.
        Ms. Norton. Now, because this is the President of the
    United States, and not one of our constituents, it is
    interesting to note that there are rules about how this should
    be done. That needs to be laid out here, since the President is
    being criticized, you are being criticized, the Commission is
    being criticized; and that has to do with disclosure. The legal
    opinion Stated whether or not these matters must be disclosed
    in rulemaking on the record if they are of substantial
    significance, is that not the case?
        Mr. Wheeler. Yes, ma'am.
        Ms. Norton. The opinion also addressed whether it is
    permissible for the FCC to solicit the views of White House
    officials, solicit the views of White House officials, and
    whether these would be subject to public disclosure. Is that
    not correct?
        Mr. Wheeler. Yes, ma'am.
        Ms. Norton. So here we have rules saying, yes, Mr.
    President, we are not going to silence you on important issue,
    but we are going to make clear that your views are absolutely
    transparent. So there is no law prohibiting the FCC from
    soliciting the opinion of the White House, there are no rules,
    and it is in the discretion of whether the FCC would have to
    disclose that communication, is that not correct?
        Mr. Wheeler. Yes, ma'am.
        Ms. Norton. The White House would be required to submit an
    ex parte filing only if its response was of substantial
    significance and clearly intended to affect the ultimate
    decision, is that not the case?
        Mr. Wheeler. Yes, ma'am.
        Ms. Norton. Did not the White House submit an ex parte
    filing on November the 10th, 2014?
        Mr. Wheeler. Yes, ma'am.
        Ms. Norton. Mr. Chairman, I submit that the rules have been
    followed to the letter. This has been an openly transparent
    matter. The President was not and should not have been
    silenced. If there were more Americans wanting to submit their
    opinions, you could imagine that those Americans would also
    want to know where the President of the United States stood on
    this matter.
        I thank you very much and yield back my time.
        Mr. Cummings. Would the gentlelady yield, please?
        Ms. Norton. I would be glad to yield.
        Mr. Cummings. Thank you.
        Mr. Wheeler, when you come into office, you are sworn in,
    is that right?
        Mr. Wheeler. Yes, sir.
        Mr. Cummings. And you have an oath that you have to adhere
    to, is that right?
        Mr. Wheeler. Yes, sir.
        Mr. Cummings. And during this process, this entire process,
    just tell us whether you believe that you have upheld your
    oath.
        Mr. Wheeler. Yes, sir.
        Mr. Cummings. Every syllable?
        Mr. Wheeler. Yes, sir.
        Mr. Cummings. Thank you very much.
        Ms. Norton. Could I enter into the record the opinions of
    some who have submitted them, civil rights and other
    organizations of various kinds, to the record, Mr. Chairman?
        Chairman Chaffetz. Without objection, so ordered.
        Chairman Chaffetz. We will now recognize the gentleman from
    Michigan, Mr. Walberg, for 5 minutes.
        Mr. Walberg. Thank you from Mr. Chairman.
        Coming from the auto capital of the world, let me, for the
    record, also make a Statement that I will back up the reason
    why I did. The President was involved, but it was not the
    President that saved the auto industry; it was the American
    auto worker that saved the auto industry, and is doing that to
    this day.
        And I think it is also with the Internet. The President has
    his right to make Statements. Many people have a right to make
    Statements. Congress has a right to make Statements. The
    question is whose Internet is it. I contend it is the American
    people's. It is wide open, it is broad, and it has worked
    pretty well. This is not opening up, in my opinion, the
    Internet; it is closing it down.
        Mr. Wheeler, on November 7th, going back to some earlier
    questions, the day after Zients visited you, The Wall Street
    Journal reported that the FCC was likely to delay net
    neutrality rules until the next year. Was there ever a point in
    time when the open Internet issue was intended to be on the
    agenda for December 11th public meeting of the Commission?
        Mr. Wheeler. Yes, sir. I was trying to push for that, but
    it was not possible.
        Mr. Walberg. What happened to push it off the agenda?
        Mr. Wheeler. It was just a bridge too far.
        Mr. Walberg. Bridge too far? In whose mind?
        Mr. Wheeler. You can whip the horse, but you can't make it
    go faster sometimes.
        Mr. Walberg. But in whose mind was it a bridge too far?
        Mr. Wheeler. The staff, those of us who were trying to put
    it together. We just couldn't get the work done.
        Mr. Walberg. In your Statement announcing the new rules,
    you called the new rules historic and also ``a shining example
    of American democracy at work.'' If that is so, why did you not
    let Americans see the rule before voting on it?
        Mr. Wheeler. Oh, golly, sir, we followed the process that
    has been in place at the Commission for both Republican and
    Democratic chairmen for recent memory.
        Mr. Walberg. But the people never saw the rule.
        Mr. Wheeler. We were very specific in putting out a fact
    sheet and saying this is what we are looking at. Then we went
    into an editing process, which is not unlike a judicial kind of
    situation back and forth.
        Mr. Walberg. But you went through that. You went through
    that in your opening Statement, all of the process, giving them
    drafts, and that is great, a little idea of where you are
    going; and that developed over time. But ultimately the
    language of the rule was not submitted to the American eyesight
    to view and ultimately comment on it, and why was that?
        Mr. Wheeler. That is the typical process at the agency, as
    it has been forever, is that a draft rule is put out by the
    chairman's office and then the commissioners go into editorial
    negotiation, if you will.
        Mr. Walberg. Sure.
        Mr. Wheeler. Over what the final rule would say, and that
    is normally a 3-week process. That does not involve putting out
    the rule.
        Mr. Walberg. But in light of the monumental process this
    was, this is the most monumental change to the rules of the
    Internet in the history of the Internet, wouldn't you say?
        Mr. Wheeler. It is a letting down, setting down.
        Mr. Walberg. It is huge.
        Mr. Wheeler. Yes.
        Mr. Walberg. It is huge. And in light of that, and the
    emotion that I feel back in my district, and I am sure everyone
    on this dais feels it in their district, people commented on
    it; you had 140 Members of Congress, you had over 4 million
    comments from people and entities concerned with this issue. I
    just don't understand why, at the very last, when you are going
    to have the rule as written, that it wasn't released to the
    public for comment. If you did it over again, would you have
    done it differently and let them see it?
        Mr. Wheeler. No, sir.
        Mr. Walberg. Why not?
        Mr. Wheeler. First of all, it wasn't a final rule; there
    were changes that were being made in the process. Second of
    all, it is against the Commission's procedures to do that, and
    always has been.
        Mr. Walberg. I don't know that to be true. In fact, I would
    regard that as not true. With Commissioner Pai, he called, ``a
    monumental shift toward government control of the Internet.''
    In light of this monumental shift, what harm would come from
    letting the American public see the text of the draft rule
    before the FCC----
        Mr. Wheeler. We didn't hide the pea, sir. We put out
    specifics; this is what it does. We then engaged, as we always
    do, in private, in camera, editorial negotiations amongst the
    commissioners. We never put out a draft before those edits.
        Mr. Walberg. That is not true.
        Mr. Wheeler. I am sorry?
        Mr. Walberg. And the American public deserved the
    opportunity at this level, at this time period, to have
    comments and opportunity to push back. This was a shift, a
    monumental shift that should have had that oversight.
        Mr. Chairman, I yield.
        Chairman Chaffetz. If the gentleman would yield.
        Mr. Walberg. I yield.
        Chairman Chaffetz. You have the discretion to make it
    public, and you chose not to, correct?
        Mr. Wheeler. I have the discretion. It is not the practice
    of the Commission to do that.
        Chairman Chaffetz. You have the discretion to make it
    public, correct?
        Mr. Wheeler. The answer is yes.
        Chairman Chaffetz. OK.
        Mr. Wheeler. Can I refine my answer?
        Chairman Chaffetz. No, you can't. Hold on 1 second.
    Chairman Martin, at the request of Members of Congress,
    including Senator Obama, who insisted on the openness when he
    was the Senator, and they did it. They came and testified to
    Congress, they made the rule open and they went through a
    second comment period; and you chose not to.
        Mr. Wheeler. I am glad you raise that, sir, because I think
    that that is more urban legend than fact. My understanding of
    the Chairman Martin situation is as follows: one, that he wrote
    an op-ed in The New York Times in which he released two
    paragraphs of an order. He followed that with a press release
    in which he released one and a half pages of a 41-page section
    of 124-page item. That is a difference between releasing an
    entire item.
        Chairman Chaffetz. He made himself available to Congress;
    they went through a second. And what is startling to me and
    what is telling to me is that Senator Obama's position on this
    is totally different than President Obama's position on this.
        Time has expired. We are now going to recognize the
    gentleman from Virginia, Mr. Connolly, for a very generous 5
    minutes.
        Mr. Connolly. Thank you, Mr. Chairman.
        Chairman Wheeler, is it unusual for an independent agency
    such as yours to communicate with the executive branch?
        Mr. Wheeler. No, sir.
        Mr. Connolly. Is it routine?
        Mr. Wheeler. Yes, sir.
        Mr. Connolly. Does it compromise independence, as you
    understand the word?
        Mr. Wheeler. No, sir.
        Mr. Connolly. The Chairman began his questioning by reading
    off a list of meetings that apparently we are supposed to see
    as sinister, you or your colleagues meeting with various White
    House officials. Would that be unique to your tenure as
    chairman? Previous chairmen never did that, is that correct?
        Mr. Wheeler. I haven't seen the logs, but I believe that
    every chairman has these kinds of meetings.
        Mr. Connolly. Is there something sinister, though, in the
    timing of these meetings? Because I think the insinuation from
    my friends on the other side is meant to suggest that there is
    something really deliberately sinister here; you are meeting
    with them either to tailor the rule or to get your instructions
    or to have some kind of quiet subversive conversation that
    obviously the public isn't aware of. Is that what occurred?
        Mr. Wheeler. No, sir.
        Mr. Connolly. Did the White House ever direct you in the
    wording, framing, or content of the rule?
        Mr. Wheeler. No, sir.
        Mr. Connolly. Ever?
        Mr. Wheeler. Even when they filed, it was not a direction;
    it was a here is our opinion, which, as I say, is the same
    opinion as 64 Members of Congress had been writing me to
    express and millions of Americans had been writing to express.
        Mr. Connolly. Right. And as we just saw with a letter to
    the ayatollah in Iran, one doesn't always want to put too much
    credence in letters from Members of Congress; it has to be put
    on into context.
        Mr. Wheeler. Can I pass on that one, sir?
        Mr. Connolly. Yes, I know. I thought I would just sneak
    that in in my 5 minutes.
        OK, the chairman was just suggesting in his overtime that
    you could have waived the rule and, by extension, should have
    waived the rule to bring the public in at an earlier date in
    the draft or the drafting of the rule. Your answer to that was
    a little bit derivical: yes, I had that power, but it is not
    our practice. Going beyond that, though, following up on the
    chairman's question, why, in looking at that ability to waive,
    did you not avail yourself of it?
        Mr. Wheeler. There are many reasons why negotiations
    amongst commissioners ought to be in camera. So, for instance,
    you put out the draft. What do you do, then, 2 days later when
    paragraph 345 gets changed? Do you put it out again and say,
    oh, hey, look at this? How do you deal with the back and forth
    between various offices? How do you deal with ongoing research?
        Is it right to have this kind of an activity that can be
    very much affecting of capital markets out there, people
    misinterpreting what this is or that, markets crashing or
    inflating, whatever the case may be? And it is for that reason,
    those kinds of reasons that FOIA, in specific, says these kinds
    of editorial negotiations are specifically not FOIA-able,
    because they are works in progress. And that was why I made
    that decision, sir, and that is why that precedent exists, I
    believe.
        Mr. Connolly. And do you regret that decision?
        Mr. Wheeler. No, sir.
        Mr. Connolly. From your point of view, by making that
    decision, you protected the integrity of the process and the
    content of the rule?
        Mr. Wheeler. Yes, sir.
        Mr. Connolly. OK. Did you feel, when President Obama issued
    his Statement with respect to net neutrality--there were press
    reports at the time that you and your colleagues were surprised
    or taken a little bit off-guard. You may want to comment on
    that, but did you view his issuance of such a Statement as
    undue interference in your process, which was still underway?
        Mr. Wheeler. No. As we have discussed, all presidents have
    had input to the process, in multiple administrations and
    multiple proceedings; it is not undue at all.
        Mr. Connolly. Not any different than Congress weighing in
    with letters or resolutions or hearings such as this?
        Mr. Wheeler. Correct, sir.
        Mr. Connolly. Thank you. I have no further questions.
        Thank you, Mr. Chairman.
        Chairman Chaffetz. If the gentleman would yield, I would
    like to actually--I don't know if we can put up this slide. I
    am going to need a copy of that back.
        But your communications person, in November, a couple days
    afterwards, in response to your question about were they
    surprised, did it have an impact, Sharon Gilson. Who is Sharon
    Gilson?
        Mr. Wheeler. She runs our media operation.
        Chairman Chaffetz. She wrote, ``This question rankles me.
    Do you take this as twisting the knife? I don't want to
    overreact, but I am ready to log a call.'' So to suggest that
    there was no rankling internally there at the FCC I think
    would, certainly they are emailing back and forth. And, again,
    this gets redacted. I don't see this as part of the public
    process here that warrants any sort of redaction, but just
    thought I would bring that up.
        I appreciate the gentleman.
        Mr. Cummings. Would the gentleman yield?
        Mr. Connolly. Since it is my time, I just want to remind
    the chairman that is an interesting point, but we had a
    virtually identical situation with J. Russell George, where his
    media person issued a Statement contradicting his sworn
    testimony, and he disavowed her Statement saying she was
    misinformed. So if you are going to cite a media person as
    corroborating your point, I am happy to do so.
        Now I yield to my friend, Mr. Cummings.
        Mr. Cummings. Mr. Wheeler, do you have a comment with
    regard to what the chairman just said?
        Mr. Wheeler. Actually, this is the first I have seen this.
    This QA rankles me, I am not even sure what it is referencing.
        Mr. Cummings. And who is the person writing that and what
    level are they on?
        Mr. Wheeler. Shannon Gilson, and she is the head of the
    media office.
        Mr. Cummings. All right. Thank you very much.
        Chairman Chaffetz. Now recognize the gentleman from Texas,
    Mr. Farenthold, for 5 minutes.
        Mr. Farenthold. Thank you, Mr. Chairman.
        I tell you, I am sitting here shaking my head at how some
    of this stuff has happened. I remember back in the 1980's and
    1990's the Internet grassroots, Internet activists were
    fighting to keep Internet service, remaining classified as an
    information service and not as a telecommunication service, and
    the marketing job to completely flip that is just staggering to
    me.
        But I also want to address something my friend from across
    the aisle just brought up, and that is--wait, I completely lost
    my train of thought. I will get back to it.
        Mr. Connolly. I think you were agreeing that I had a
    brilliant point that needed to be reinforced because it is St.
    Patrick's Day.
        Mr. Farenthold. On the public comment section, I remember
    where I was going now, what happens is we are seeking public
    comments on things that we don't know what we are seeking
    comments on. Open government is about the people knowing the
    thought process that goes into creating rules and regulations.
    It is why we have C-SPAN, it is why anybody can turn on and see
    the debates going on in Congress and reach out to his or her
    Congressman or woman and give comment.
        I am really troubled by--and I think this isn't just the
    FCC; this is the executive branch agencies creating laws by
    regulation behind closed doors. You are defending doing it
    behind closed doors and not letting the public, and I just have
    to say I personally have a problem with that. The more light of
    day we have on that, the better off we are.
        Let me go back to my public comments question in
    particular. I have a hierarchy kind of comments that come into
    my office. You know, something that is originally written by a
    constituent, thoughtful piece is the most important, then
    something from a non-constituent, then a form letter, and then
    one of these things that you clip. So is there a breakdown you
    would be willing to share with us of the public comments, how
    they fall within some sort of similar hierarchy? You are
    nodding your head like you all think the same way.
        Mr. Wheeler. I know exactly what you mean, Congressman, and
    I get all kinds of notes that range from----
        Mr. Farenthold. I am running out of time. Can you provide--
    --
        Mr. Wheeler [continuing]. To the handwritten. I will try. I
    don't know if we can break out 4 million comments that way, but
    I will try.
        Mr. Farenthold. I mean, if it is done, it is done. Whatever
    information you could get on me.
        All right, so you have moved and what you all have done,
    and I think we will cover more of this in a Judiciary Committee
    hearing, but I have two questions that are really kind of
    burning on me. One is, as you move Internet service from an
    information service to a telecommunications service under Title
    II, are we opening the door to applying universal service fund
    taxes to Internet services, to your broadband service? Does
    this open the door to that?
        Mr. Wheeler. We specifically said that we would not do that
    in this proceeding. As you know, there is an ongoing joint
    Federal-State board addressing that question. Even if it were
    to happen, in a hypothetical, that doesn't mean that the total
    number gets changed.
        Mr. Farenthold. And do you feel like these regulations of
    subjecting the retail Internet service providers to more
    government regulation is going to encourage or discourage more
    competition in the field?
        Mr. Wheeler. One of the reasons why we were really focused
    on making sure that there was no impact on investment capital
    is because we want to incentivize investment.
        Mr. Farenthold. It seems like you are having to go through
    a tangle of government regulations and be a heavily regulated
    industry, as opposed to just hanging out your shingle and
    stringing some wires or putting up a radio transmitter to do
    fixed broadband.
        Mr. Wheeler. So there are four regulatory issues in this
    rule: no blocking, no throttling, no paid prioritization, and
    that you must be transparent with consumers. Those four seem to
    be pretty well adopted; they are in the Republican bill that
    has been proposed.
        Mr. Farenthold. I guess my issue is my mom, before she
    passed away, only used Internet, but I was her tech support, so
    I wanted her to have an always on broadband connection, so any
    time her modem didn't connect, I didn't get a phone call. But
    it seems like under this scenario there would be no ability to
    buy just like an email only type broadband service.
        Mr. Wheeler. That is absolutely incorrect. There is nothing
    that we do with retail rate regulation or the way in which----
        Mr. Farenthold. But her service provider, I couldn't go out
    and buy something so I get my email always on and fast, but I
    am never going to stream a Netflix video. Why shouldn't I have
    that alternative to buy that?
        Mr. Wheeler. There is nothing that prohibits a service
    provider from having that option. You can have email only; you
    can say I want 5 megabits, I want 10 megabits, I want 25
    megabits, and you can charge all at different prices.
        Mr. Farenthold. But it is speed only.
        Mr. Wheeler. There is nothing in this order that regulates
    consumer rates, and that was by design. To go to your core
    question of investment, consumer revenues, the day after this
    order goes into effect, should be exactly the same as consumer
    revenues the day before because we do nothing to regulate
    consumer revenues.
        Mr. Farenthold. I disagree that you are going to see
    limited in product offering. I don't like the fact that AT&T
    throttled my unlimited access after X number of gigabytes. I
    could buy more gigabytes for more money and do that, so I want
    that choice.
        Chairman Chaffetz. I thank the gentleman.
        Now recognize the ranking member, Mr. Cummings, for 5
    minutes.
        Mr. Cummings. Thank you very much.
        Chairman Wheeler, I want to thank you for your testimony.
    You, over the years, have earned a reputation for high
    integrity and excellence, and when I asked you a little earlier
    about having taken an oath and whether you believe you adhered
    to that oath, your answer was yes, and I am just here to tell
    you I believe you.
        Mr. Wheeler. Thank you, sir.
        Mr. Cummings. I want to ask you about the actions of the
    Republican Commission members. We have heard outrage about the
    President this morning. Let's go to Commissioner O'Reilly, Mike
    O'Reilly. He is a former Republican Senate staffer who has been
    an active opponent of the Open Internet rule. Is that a fair
    Statement? Do you know that to be the case?
        Mr. Wheeler. Yes, sir.
        Mr. Cummings. OK. Chairman Wheeler, when the committee
    requested documents from you, we also requested documents from
    the other commissioners, including Commissioner O'Reilly, and
    we received them. For example, we have now obtained an email
    exchange between Republican Commissioner Mr. O'Reilly and three
    individuals outside the FCC. They are Robert McDowell, a
    partner in the communications practice of a large lobbying firm
    that represents a variety of telecommunications clients; Harold
    Furchtgott-Roth, an economic consultant in the communications
    sector; and Baron Soca, the President of Tech Freedom, a
    libertarian think tank focused on tech policy issues.
        In this exchange, Commissioner O'Reilly sought edits,
    sought edits on a draft op-ed he was working on opposing the
    Open Internet rule.
        Chairman Wheeler, were you aware, at the time, that
    Commissioner O'Reilly was having these private communications
    with these individuals? Were you aware of that?
        Mr. Wheeler. No, sir.
        Mr. Cummings. All three of these individuals have
    professional interests that could be affected by the passage of
    this rule, is that right?
        Mr. Wheeler. Yes, sir.
        Mr. Cummings. In response to Commissioner O'Reilly's
    request, several of the individuals provided substantive edits.
    In fact, one response had so many edits that he apologized,
    writing, ``I know it looks like a lot of red ink, but I really
    just tried to finesse, clarify, etc.''
        According to this email chain, Commissioner O'Reilly then
    forwarded these edits onto his staff, writing, this is what he
    sent his staff: ``OK, took a bunch and left out some stuff.''
        Chairman Wheeler, Commissioner O'Reilly's op-ed was
    published in The Hill on May 5th, 2014. That was just 10 days
    before the Notice of Proposed Rulemaking was published, isn't
    that right?
        Mr. Wheeler. Yes, sir.
        Mr. Cummings. So these edits provided by outside parties
    seem clearly designed to affect the ultimately decision of the
    FCC. Are you aware of any ex parte filing regarding this email
    exchange or these communications?
        Mr. Wheeler. Golly, Congressman, no.
        Mr. Cummings. Are you aware?
        Mr. Wheeler. No, sir, I am not aware.
        Mr. Cummings. Would it be normal for you to be aware?
        Mr. Wheeler. No.
        Mr. Cummings. Now, my staff went through all the ex parte
    filings regarding this rule, all 750 of them, and they could
    not find one, not one filed by any of these three individuals
    for these communications. Do you know why that might be?
        Mr. Wheeler. No, sir.
        Mr. Cummings. And you just sat here and testified about how
    you need to go by the rules and you need to file the ex parte
    under certain circumstances. Would you tell us how you feel
    about that, what you just learned, assuming it to be accurate,
    what I just told you? Is that consistent with the way it is
    supposed to be, the way you are supposed to operate?
        Mr. Wheeler. I think that it is fair to say, Congressman,
    that there is often a free and fluid back and forth between
    practitioners in the bar and members of the Commission.
        Mr. Cummings. But do you think an ex parte should have been
    filed?
        Mr. Wheeler. I don't know in this specific one. I don't
    want to sit here and hip-shoot on that; I would leave that to
    the ex parte experts.
        Mr. Cummings. I understand. Well, let me be clear. I am not
    suggesting that anyone engaged in inappropriate activity here,
    but if the Republicans want to accuse the President of undue
    influence in this process, even when he submitted, he did it
    the right way, an ex parte filing, they can't just conveniently
    ignore similar actions on the Republican side. There is
    something wrong with that picture: fairness, balance; and I am
    concerned about that.
        With that, I yield back.
        Chairman Chaffetz. Now recognize the gentleman from
    Florida, Mr. DeSantis, for 5 minutes.
        Mr. DeSantis. Thank you, Mr. Chairman.
        Chairman Wheeler, I want to go back to this Wall Street
    Journal report, October 30th, 2014, which reported that you and
    the Commission were prepared to move forward on a hybrid 706
    type approach; and I think that was consistent with a lot of
    the public reporting at the time. So is it your testimony that
    that was not in fact the case, that you were not at that time
    leaning toward a 706 hybrid type approach?
        Mr. Wheeler. No, we had gone through an evolutionary
    process, and at that point in time we were focusing on a hybrid
    approach. That is a correct Statement.
        Mr. DeSantis. OK. Very good. So obviously something changed
    between October 30th and when you eventually submitted this
    rule. I think it has been pointed out how the President was
    very forceful in making his ideas known. Did you know that when
    the Commission adopted the rule, 400 pages, February 26th,
    2015, the Democratic National Committee tweeted,
    congratulations for adopting President Obama's plan?
        Mr. Wheeler. I found it out afterwards.
        Mr. DeSantis. OK. So you know this is being reported as
    something that is actually the President's plan, adopted by the
    Commission, and it is less that this is something that the
    Commission came up with on its own.
        Now, you had talked about the release of the report. The
    report could have been released in early February. The vote
    happened several weeks after that. Why not just release the
    proposed rule to the public, given that this is something that,
    one, has a lot of interest, but, two, all the comment, all the
    period and input was done really before you had the movement to
    a Title II framework? So why not just let the people see it?
        Mr. Wheeler. So I think there are a couple of things here.
    First of all, let me be clear that your comment about a hybrid
    being on the table is correct, as were the other approaches
    that, as I said to Mr. Jordan, the day following that Journal
    article, The New York Times reported that there were four on
    the table.
        Mr. DeSantis. No, I understand that, but just with the
    transparency, can you address the transparency?
        Mr. Wheeler. Mr. Connolly and I engaged in this. I did not
    release the draft order because it was the draft, underlined,
    order. I did take pains to have fact sheets and other outreach
    so the people understood what was in it.
        Mr. DeSantis. So you are saying----
        Mr. Wheeler. But the exact words----
        Mr. DeSantis. Let me clarify this, though. You are saying
    it is a draft order until the Commission approved it, and that
    is why you didn't release it?
        Mr. Wheeler. Yes, sir, that is the way things work, yes.
        Mr. DeSantis. Well, actually, you could have released it,
    and that has been made clear; and I think that, particularly in
    this town, this idea that we are just passing things to find
    out what is in things, without the public having access to
    that, I don't think that that works.
        Let me ask you this. Can you guarantee to the American
    taxpayer, people who use broadband service, that if this goes
    into effect, that they will not see taxes show up as
    contributions to the Universal Service Fund?
        Mr. Wheeler. We have carefully drafted this with two
    specific things in mind.
        Mr. DeSantis. You can explain, but can you guarantee them
    they will not pay more?
        Mr. Wheeler. We have said that this does not trigger
    universal service, as I said to a previous question.
        Mr. DeSantis. But that has been disputed. I know that one
    of your members dissented and said that he believes Title II
    imposes a statutory obligation----
        Mr. Wheeler. We are talking past each other. Let me just be
    clear, because this is a specific point, that the provision we
    have forborne from the provision that would authorize us today,
    in this rulemaking, to do that, to have universal service.
    There is a joint Federal-State board addressing that very
    question today. How they resolve things in the future, I do not
    know, but this rulemaking was very clear to say that we do not
    trigger that which you are concerned.
        Mr. DeSantis. But it does not foreclose it, and the fact
    that we are in Title II framework, that opens the door for this
    to happen, depending on what was decided with that commission.
        Look, I want open, robust Internet. When I see 400 pages of
    red tape, this, to me, does not seem what openness is going to
    be. And the experience when the government gets involved in
    these things, the 400 pages, it is never going to be less than
    400; it is going to be more. It is going to metastasize and
    government is going to be able to get involved in other aspects
    of this. I wish the public would have had more input. I know
    that this is going to be contested, obviously, in the courts
    and here in the Congress.
        I am out of time and I yield back.
        Mr. Wheeler. Can I clarify one thing, sir? There is
    actually eight pages of rules in there. The rest is
    establishing the predicates and the background for, for
    instance, the court challenge.
        Chairman Chaffetz. I thank the gentleman from Florida.
        We now recognize the gentleman from California, Mr. Lieu,
    for 5 minutes.
        Mr. Lieu. Thank you, Mr. Chairman.
        Thank you, Mr. Wheeler, for your public service. I know you
    will be testifying in many committees on Capitol Hill. I have
    heard a lot of back and forth today, and I just want to get on
    the record the answer to the following question, which is
    essentially was the process followed by FCC in this case
    essentially the same process that the FCC has followed in other
    prior rulemakings?
        Mr. Wheeler. Yes, sir.
        Mr. Lieu. In fact, in this case there was a lot of public
    comment, and there is nothing wrong with a commissioner being
    influenced by public comment, correct?
        Mr. Wheeler. Absolutely.
        Mr. Lieu. There is nothing wrong with a commissioner, if a
    Member of Congress wrote a particularly compelling letter, to
    be influenced by such a letter, correct?
        Mr. Wheeler. I hope that we learn from the whole process,
    from the record being built.
        Mr. Lieu. And there is nothing wrong with any commissioner
    being influenced by a president of the United States, provided
    that that contact is reported in an ex parte filing, correct?
        Mr. Wheeler. We should make our decision independently on
    the record that has been established by those who have
    commented.
        Mr. Lieu. And in this case the Administration did file an
    ex parte record.
        Mr. Wheeler. Correct.
        Mr. Lieu. And members of the public can go on your website
    and look at everyone who has filed ex parte, correct?
        Mr. Wheeler. Yes.
        Mr. Lieu. And the President of the United States cannot
    fire you as a commissioner, correct?
        Mr. Wheeler. Correct.
        Mr. Lieu. Wouldn't we want different folks to weigh in on
    issues of this magnitude, including not just the President, but
    Members of Congress and public? Wouldn't we want everybody to
    be able to weigh in and you all make your decision? Isn't that
    the way democracy works?
        Mr. Wheeler. I think it is the way democracy works and it
    is the way the Administrative Procedure Act was structured, to
    make sure that there was an open opportunity for notice and
    comment, and then make a decision based on what that record
    was.
        Mr. Lieu. Thank you.
        I yield back the balance of my time.
        Chairman Chaffetz. I thank the gentleman. If the gentleman
    would yield for a second.
        Similar to what you are saying, I do think there is room
    for everybody to weigh in, whether it be the President, a
    Member of Congress. But it is about openness and transparency;
    it is about filing those things, and I think that is what the
    gentleman is saying. I would hope that we could find other
    people on both sides of the aisle.
        I really do believe, certainly at the FCC and other
    agencies, that maybe we should require by law that there be a
    30-day notice. Take the final rule, give it the light of day
    and let it be out there for 30 days. What harm would there be
    in doing that?
        And I would appreciate if the gentleman would consider
    that. He is a very thoughtful member and I appreciate the time.
        Mr. Cummings. Would the gentleman yield further?
        You have heard all of this, Mr. Chairman, and I am just
    curious. When you hear the complaints back and forth, and here
    you are sitting here, what I consider to be a hot seat, are
    there things that you would like to see us do either as the
    Congress to bring more clarity or do you feel like the process
    is fine just the way it is? I mean, because we want to be
    effective and efficient. We can't just keep going on these
    merry-go-rounds over and over again. There will be
    controversial decisions in the future.
        And going to Mr. Lieu's comments, if there is guidance that
    we can provide that will get rid of any kind of ambiguity with
    regard to people wondering whether folks have crossed this line
    or that line, I mean, I am sure you have thought about this a
    lot, and I know you want to act in the best interest of the
    United States and our citizens and certainly your agency. Is
    there anything that you can think of?
        Mr. Wheeler. I appreciate that question, Mr. Cummings. My
    goal has been to make sure that I follow the rules. I don't
    make the rules or the regulations that interpret the statute; I
    try to follow them. You know, the Administrative Conference of
    the United States is kind of the expert agency when it comes to
    processes, and they and you, I think, have a significant
    challenge in that the rules have to apply across all agencies,
    not just the FCC, so far be it from me to get specific and say
    you ought to change Section 2(b)(iii). But I see my job as
    trying to adhere to the statute and the rules that have been
    put in place to deliver on those concepts.
        Chairman Chaffetz. I thank the gentleman. And as I
    recognize Mr. Walker here, I want to respond to what you just
    said and highlight, again, under the rules you did have the
    discretion to make it public, and you elected not to. I think
    what Congress should consider is compelling you to make that
    open and transparent, rather than just simply making it
    discretionary.
        Now recognize the gentleman from North Carolina, Mr.
    Walker, for 5 minutes.
        Mr. Walker. Thank you, Mr. Chairman.
        Being a relatively new member in Congress, I am learning
    things every day. In fact, I had already known that Al Gore had
    invented the Internet, but today I found out, according to Mrs.
    Maloney, that the President has saved the Internet.
        Just curious. Do you think is a Statement that is fair? Do
    you think his involvement has saved the Internet for the
    future?
        Mr. Wheeler. Oh, I think that this is a much bigger issue,
    Congressman. I think that the Internet is the most powerful and
    pervasive platform that has ever existed in the history of the
    planet, and that it has an impact on every aspect of our
    economy and every aspect of how we act as individuals; and for
    that to exist without rules and without a referee is
    unthinkable.
        Mr. Walker. Well, let me get back to what you said earlier.
    You testified, in fact, today that you did not feel obligated
    to follow the President's suggest. So my question is what
    exactly was the President's suggestion.
        Mr. Wheeler. The President filed an ex parte saying that we
    should have Title II, and we did not follow that suggestion; we
    did Title II plus 706. He did not say that we should do
    interconnection; we did interconnection. He did not suggest
    that we should have the scope of forbearance that we had.
        Mr. Walker. Sure. I am actually getting to the place as far
    as your action with him, when you say he suggested. There were,
    what, 9 or 10 trips to the White House? Do you remember which
    time it was suggested as far as where there was disagreement,
    where there was agreement?
        Mr. Wheeler. I am sorry, sir. My comment about suggestion
    was specifically referencing the ex parte that he filed.
        Mr. Walker. OK. So you are saying there was no one-on-one
    suggestion with you and the President whatsoever when it came
    to net neutrality discussion?
        Mr. Wheeler. That is correct.
        Mr. Walker. OK. Let's go back to the pictures, obviously,
    of the protesters that were there that morning. Did you have
    any word or any idea that those protesters would be showing up
    that morning, or were you as surprised as the look that you had
    on your face?
        Mr. Wheeler. I was surprised. And if I had spent less time
    brushing my teeth, they would have missed me, because they just
    barely caught me.
        Mr. Walker. So you had no idea that those guys, you weren't
    tipped off they were showing up that morning?
        Mr. Wheeler. No.
        Mr. Walker. OK. Your posture has been called, by some of
    the outlets, apologetic since this decision was made. Why do
    you think that assumption is being made?
        Mr. Wheeler. Apologetic?
        Mr. Walker. Yes. Since the decision has been made, there
    have been some outlets that have said maybe not backing up on
    the decision, but it seems like it was not as firm as it was
    when the decision was made. Why do you think that would be
    characterized like that?
        Mr. Wheeler. Oh, my goodness, Congressman. I hope that this
    is not apologetic. I said, in the press conference after this,
    this was my proudest day being involved in public policy for
    the last 40 years as I have. There is no way that I am
    apologetic. I am fiercely proud of this decision and believe
    that it is the right decision and believe that it is an
    important decision not only for today, but for tomorrow.
        Mr. Walker. You talked about, a little earlier, and I think
    Congressman DeSantis mentioned this a little bit earlier, you
    talked about The Wall Street article was wrong. You may have
    addressed this just a minute ago. Can you tell me specifically,
    I believe that what was your comment, that The Wall Street
    Journal had it wrong? Specifically, what did they have wrong?
        Mr. Wheeler. Well, what I was referencing was The New York
    Times article the following day where, as I understood in The
    Wall Street Journal article, and I obviously don't have it, but
    as has been represented here that it said there was one
    solution on the table; and The New York Times the following day
    said there were four solutions on the table.
        Mr. Walker. So which one is accurate?
        Mr. Wheeler. The Times is correct.
        Mr. Walker. The Times is correct.
        Mr. Wheeler. Let me be really specific. And I have
    constantly said throughout this entire process that Title II
    has always been on the table. And I said in my testimony that
    we were looking at 706, Title II and 706 in a hybrid, Title II
    and 706 in not a hybrid, and Title II by itself.
        Mr. Walker. The appearance of being an independent agency,
    which you have claimed probably 12 to 15 times today, can you
    understand why people would have some questions when there are
    meeting after meeting with the White House? Is there anything
    that the American people or Congress can see there is a
    balance, where there is also input from the other side, as
    opposed to just one particular partisan perspective?
        Mr. Wheeler. So you know, Congressman, during that period,
    I believe that I met more than three times as often with
    Members of Congress. You know, my job is to take input. My job
    is to provide expertise on issues that are being considered.
    And that kind of an ongoing relationship with all aspects of
    government is an important role, I believe.
        Mr. Walker. Thank you, Mr. Wheeler. My time has expired.
        I will yield back to the Chairman.
        Chairman Chaffetz. I thank the gentleman.
        We will now recognize Mrs. Watson Coleman from New Jersey.
        Mrs. Watson Coleman. Thank you very much, Mr. Chairman.
        Mr. Wheeler, thank you very much for your testimony. Thank
    you for your forbearance and thank you for the fact that it
    seems that you responded to the enormous interest and concern
    with net neutrality. I am a newbie also, but I became aware of
    net neutrality on social media. So thank you so much for that.
        I wanted to just clarify a couple things. First of all,
    with respect to the comment about perhaps we ought to have a
    60-day comment period after the final rule, that would then
    make that final rule possibly not a final rule, and I don't
    know how we would then determine it to ever became a final
    rule.
        It has been Stated that you have met with the White House
    on several occasions during what is supposedly a controversial
    period of time. Was the issue of net neutrality the only thing
    you were doing during the period of time when you were
    considering net neutrality? Were there a variety of other
    issues you may have been meeting with members of the White
    House or at the White House? And, if so, just for the record,
    might you just want to share some of those?
        Mr. Wheeler. Thank you, Congresswoman. Yes. So I met on
    national security issues; we met on trade related issues;
    cybersecurity; the E-Rate, what was happening there; spectrum
    policy. The White House was obviously very, very much involved
    in implementing the instructions of the Congress to re-purpose
    spectrum, and we had to work very closely with all the agencies
    and the White House on that. And the spectrum auctions,
    obviously, as well.
        Mrs. Watson Coleman. Thank you, Mr. Wheeler. That gives us
    an illustration of the variety of issues that you had been
    addressing. We would love to have the opportunity to work on
    one thing at a time. We know you don't, we know the President
    doesn't, and you know we can't.
        So, I mean, to suggest that that is the only thing that you
    were doing is certainly misleading and is, I believe, a
    mischaracterization of your continued Statements that you were
    not meeting on these issues, and I have no reason not to
    believe you. And given that this is such a huge issue, that
    everyone wants access and net neutrality, it just seems to me
    that you were quite willing to listen to more than 4 million
    people, what they had to say, to all of the motions that were
    filed for consideration, including the President of the United
    States. I listen to him; I think he is really quite brilliant
    and has great ideas for this Country.
        So I just wanted to thank you for the opportunity to hear
    your testimony and to be able to give you an opportunity to
    answer questions as to the kinds of things that are on your
    plate that you might have been discussing with the White House.
        Mr. Wheeler. Thank you.
        Mrs. Watson Coleman. Thank you very much.
        Thank you, Mr. Chairman. I yield back my time.
        Chairman Chaffetz. I thank the gentlewoman.
        We will now recognize the gentleman from Georgia, Mr. Hice,
    for 5 minutes.
        Mr. Hice. Thank you, Mr. Chairman.
        And thank you, Mr. Wheeler, for being here with us. It has
    been pretty well established that there were not, and with many
    excuses, but the FCC did not report various meetings with the
    White House and White House officials, even though you did
    report to various lobbyists and activists and companies and so
    forth. That is well established here today, but this does not
    seem at all as though transparency has taken place. When there
    is a specific area that is deliberately not reported, the
    appearance is that it is secretive, that there is something to
    hide. And you are denying that today, is that true?
        Mr. Wheeler. Yes, sir, there was no secret. I am not sure I
    understood. Reporting to lobbyists? I am not sure what----
        Mr. Hice. The ex parte type thing. I mean, we have 755
    entries.
        Mr. Wheeler. Oh, when they would file.
        Mr. Hice. Yes.
        Mr. Wheeler. I am sorry.
        Mr. Hice. And there is no filing with the White House
    except one. So, I mean, it gives every appearance of secrecy
    rather than transparency. Would you agree with that?
        Mr. Wheeler. And I think that it has to do with the fact
    that the language of ex parte is when it is intended to affect
    a decision and to provide information of substantial
    significance.
        Mr. Hice. And you don't believe this is substantial
    significance?
        Mr. Wheeler. There was when Jeff Zients came to see me and
    said this is what the President is going to do. That was
    substantial significance.
        Mr. Hice. As a general rule, if someone is offering you an
    opinion, you would not object to an opinion being offered to
    you, I am assuming. Just a general rule. We all respect the
    First Amendment. If someone has an opinion, you would feel free
    to let them have an opinion.
        Mr. Wheeler. Yes, sir.
        Mr. Hice. On the other hand, if someone or some group,
    whatever, was trying to give directives to you or the FCC or
    whatever, you would probably be outspoken against that action.
    I mean, if someone is giving an opinion, that is no problem;
    but if someone wants to be intrusive and give orders, that may
    be a different scenario and you would be outspoken toward it.
        Mr. Wheeler. And I think, boy, did we get opinions on this.
        Mr. Hice. OK. You mentioned a while ago that the White
    House offered their opinion on this whole thing, and I would
    like to put up a slide that we had a little bit earlier, emails
    from the chief of staff to the Senate majority leader to you.
    The top line up there that is in red, the comment is: spoke
    again last night with the White House and told them to back off
    Title II. That sounds like a whole lot more than an opinion.
    Typically, you would not tell someone who is offering an
    opinion to back off. Would you agree with that?
        Mr. Wheeler. I don't understand the parsing of the words,
    sir.
        Mr. Hice. All right. You said you don't have any problem,
    there is no problem, typically, with someone just giving an
    opinion. But this is more than an opinion because the comment
    here is tell the White House to back off. So there is more than
    just an opinion coming from the White House, it would appear.
        Mr. Wheeler. You know, the other part about that is that I
    had, at the same point in time, 90 letters from Republican
    Members of Congress saying that I should not do Title II.
        Mr. Hice. I am not talking about Members of Congress. This
    Statement right here is the White House.
        Mr. Wheeler. But the point is that suggested Title II is
    very much in the mix. This, if I can read right, is----
        Mr. Hice. It says, spoke again last night with the White
    House and told them to back off Title II. Went through once
    again the problems it creates with us. This is more than an
    opinion.
        Mr. Wheeler. This is May, and as I indicated, in May I was
    proposing that Section 706 was the solution, and I learned
    through the process of this, long before the White House ever
    had their filing, that Section 706 was not the answer.
        Mr. Hice. But the White House was not providing an opinion,
    they were putting some sort of directive to do something;
    otherwise, there wouldn't have been comments to tell the White
    House to back off. It was more than an opinion coming from the
    White House.
        Mr. Wheeler. You know, I think that you are reading into
    this.
        Mr. Hice. Why else would the comment be to back off if it
    is just an opinion? If the White House was offering an opinion,
    no one would be saying back off. There was more than an opinion
    that was being presented.
        Mr. Wheeler. With all due respect, that is your opinion.
        Mr. Hice. Well, it is your email. It is your email, and the
    words back off are pretty strong.
        Mr. Wheeler. I don't think that it is conclusive that there
    is more than clearly just what is Stated there.
        Mr. Hice. It says back off because this is creating
    problems for us. That is more than just my opinion; it is an
    email.
        Mr. Wheeler. That is his opinion.
        Mr. Hice. I yield my time.
        Mr. Wheeler. That is his opinion.
        Chairman Chaffetz. Thank the gentleman.
        We will now recognize the gentlewoman from the Virgin
    Islands, Ms. Plaskett, for 5 minutes.
        Ms. Plaskett. Thank you, Mr. Chairman.
        And thank you, Mr. Wheeler, for being here this morning. I
    think that it is so important to understand the significant
    attention that this Open Internet order has generated, and that
    that interest is primarily in the process as opposed to the
    content of what the Open Internet is.
        And having these hearings regarding this process and
    whether or not you have used discretionary, your discretionary
    ability, as opposed to a rule, is something that I think is
    also very interesting. And I thought it would be important for
    us to understand the steps the FCC takes in that rulemaking
    process.
        Now, the official FCC blog contains a post from the general
    counsel, John Solet, entitled The Process of Governance: The
    FCC and the Open Internet Order.
        Mr. Chairman, I ask unanimous consent to enter that post
    into this hearing record at this time.
        Mr. Hice [presiding]. Without objection. Thank you.
        Ms. Plaskett. Thank you.
        Ms. Plaskett. The general counsel begins by explaining that
    the FCC seeks to ``create an enforceable rule that reflects
    public input, permits internal deliberation, and is built to
    withstand judicial review.''
        Chairman Wheeler, is it an accurate Statement that that is
    the objectives in the FCC and its rulemaking?
        Mr. Wheeler. Yes, ma'am.
        Ms. Plaskett. And after the public comment period, the FCC
    staff reviewed proposals in light of that public record, so we
    know the public comment period was actually even longer than
    normally is done; 60 days as opposed to the 30 days that you
    were required, because of the volume and the interest of this.
    When was that done, the review beginning in light of the public
    record?
        Mr. Wheeler. Well, the traditional way that we do it is
    that the comment period closes and you have an opportunity to
    review those comments, and then you have a period where you can
    comment on the comments, and then you review those.
        Ms. Plaskett. OK. And do you remember at what time that
    that was closed to begin the review process?
        Mr. Wheeler. I don't know those exact dates, ma'am; I can
    get them for you.
        Ms. Plaskett. OK. And then the proposed order is
    distributed to the other FCC commissioners for internal review
    and deliberation again, is that correct?
        Mr. Wheeler. Yes, ma'am.
        Ms. Plaskett. And what is that timeframe, do you recall how
    long?
        Mr. Wheeler. It is 3 weeks before the vote.
        Ms. Plaskett. All right.
        Mr. Wheeler. That is by our own internal record.
        Ms. Plaskett. And that is a critical portion of it, right,
    the commissioners' internal deliberations?
        Mr. Wheeler. Yes, ma'am.
        Ms. Plaskett. And then before the vote to adopt the Open
    Internet order on February 6th, there were calls to disclose
    that order, right?
        Mr. Wheeler. That is correct.
        Ms. Plaskett. And is it a general FCC policy to publicly
    release an order before the Commission votes on it?
        Mr. Wheeler. No, ma'am.
        Ms. Plaskett. And what could possibly be that, the issue of
    undue influence after that deliberation? What would be the
    reasoning behind that, the rationale?
        Mr. Wheeler. Well, the rationale is that, first of all,
    there has been this extended period of comment and public
    debate, and then you get to a point in time when the rubber
    meets the road and you are drafting, and you are going back and
    forth and editing a document that changes frequently as a
    result; and that is something that is dynamic and not public.
    One reason, you want to make sure you have the full
    participation of all of the commissioners; second, as I
    mentioned before, the opportunity to cause mischief in
    financial markets by misinterpretations of changing glad to
    happy is an issue. So these have always been in camera kinds of
    editorial activities.
        Ms. Plaskett. So then even after the vote, there are then
    additional steps that are taken before the order is final and
    ready for release, correct?
        Mr. Wheeler. Yes, ma'am.
        Ms. Plaskett. And you followed those.
        Mr. Wheeler. Yes, ma'am.
        Ms. Plaskett. And that includes commissioners' individual
    Statements with their opinions, further discussion and
    clarification of any significant arguments made from the
    dissenting Statements, and then the final cleanup edits,
    correct?
        Mr. Wheeler. Yes, ma'am. And when those final cleanup edits
    were made by the dissenters, that was about midday, and on the
    following morning, at 9:30, we released the item.
        Ms. Plaskett. And that final order was released on March
    12th, correct?
        Mr. Wheeler. Yes, ma'am.
        Ms. Plaskett. So it appears to be that you did not depart
    in any way from your rulemaking process in this respect, in
    regard to the open Internet. It really has been a question to
    many people's mind, and our good chairman and other
    individuals, whether you used your discretionary outside of
    what is the general rulemaking, right?
        Mr. Wheeler. That is correct.
        Ms. Plaskett. And if you had used your discretion, then we
    would be in a hearing about something else as to whether that
    discretion was appropriate or not appropriate based on the
    President weighing in on something that had huge importance to
    the people of the United States.
        Mr. Wheeler. I can't comment on that hypothetical, but the
    point of the matter is that we followed precedents and
    procedures that has been followed for years and years by both
    Republican and Democratic Commissions.
        Ms. Plaskett. Thank you very much.
        I yield the balance of my time and thank you.
        Chairman Chaffetz. I thank the gentlewoman.
        Now recognize the gentleman from Oklahoma, Mr. Russell, for
    5 minutes.
        Mr. Russell. Thank you, Mr. Chairman.
        Thank you, Chairman Wheeler, for your long and dedicated
    public service to our Country. I know it is often thankless.
    And while opinions may differ, your dedication to it is
    appreciated.
        Mr. Wheeler. Sir, I recognize your badge. Thank you for
    your service.
        Mr. Russell. Well, thank you, sir.
        You had Stated in earlier testimony today that you came to
    an evolutionary decision because you determined it was
    reasonable for ISPs, but not reasonable for consumers with this
    ruling. Is it not true that with this ruling that Federal taxes
    could now be applied to consumers, where they were once
    prohibited?
        Mr. Wheeler. I think that that is in the hands of Congress.
    You all will get to decide that. Right now the Internet Tax
    Freedom Act specifically prohibits that, and whether that is
    changed is outside of my jurisdiction.
        Mr. Russell. But from an informational service to a
    communications service, by moving it to Title II, does it not
    lay the foundation for consumers being taxed?
        Mr. Wheeler. Again, that is going to end up being your
    decision, not mine.
        Mr. Russell. Was it possible when it was just an
    information service outside of Title II?
        Mr. Wheeler. Information services, some are taxed at State
    levels, I believe. Some could be taxed at State levels. I want
    to make sure it is could because we have the Internet Tax
    Freedom Act sitting on top of everything. So it cuts both ways,
    I guess.
        Mr. Russell. OK, Article I, Section 8 of the Constitution
    States that it is Congress that has the power to regulate
    commerce. Do you believe this?
        Mr. Wheeler. Yes, sir.
        Mr. Russell. Do you believe that the public would have been
    better served by giving Congress a chance to review the rules
    prior to their release, especially in light of your testimony
    today where you said that rules have to apply across all
    agencies and be considered?
        Mr. Wheeler. This has been, as you know, Congressman, a 10-
    year process where there has been multiple input by multiple
    congresses along the way. There is legislation now, which is
    entirely appropriate. I think what our job is is to take the
    instructions of Congress as stipulated in statute and interpret
    them in terms of the realities of the day, and that is what we
    did.
        Mr. Russell. The quote that I would like to read to you by
    a senior vice president of a communications company says, ``The
    FCC today chose to change the way commercial Internet has
    operated since its creation. Changing a platform that has been
    so successful should be done, if at all, only after careful
    policy analysis, full transparency, and the Congress, which is
    constitutionally charged with determining policy.''
        Now, you and your agency have established a clear belief
    that adopting these Title II rules would create problems, as we
    have seen in some of the email traffic that we have reviewed
    today. You also have Stated in other emails produced to the
    committee that you did not intend to be a wallflower in your
    tenure at the Commission. But given the coordinated efforts in
    the pressure of the White House, the coincidentally timed
    protest, and other White House Statements, would it be
    unreasonable, then, for Americans to somehow feel betrayed that
    this decision was a cave against your earlier judgment and
    damaged the reputation of the FCC as an independent agency?
        Mr. Wheeler. No. And I also think that it is important to
    go to your key assumption there, quoting this senior vice
    president. The interesting thing in all of this is that there
    are four bright line rules. There are only four lines in this
    order: no blocking, no throttling, no paid prioritization, and
    transparency; and all of the ISPs have been saying publicly,
    buying newspaper ads, running TV commercials, you have been
    subject to it, saying, oh, we would never think of not doing
    that.
        So when this person says it is going to change the basic
    operation of the Internet, there is some kind of a discord
    there, some kind of a disconnect, because they are saying, oh,
    we are not going to do that, and then they say, oh, but when
    they require that we don't do that, that is changing the
    operation of the Internet; and I think that is kind of an
    underlying tension that has been going through this whole
    thing.
        Mr. Russell. Well, I would hope, as we move forward in the
    future, there is clearly going to be lawsuits in this process;
    there is going to be continued discussion about it; that we
    would make sure that Congress regulates commerce. I personally
    believe that what we will see follow will be a taxation of
    consumers. I think had they known that, they wouldn't have been
    so quick to click the Internet like to get these 4 million
    comments. And I think we have set back free information and
    access to all Americans. Thank you.
        I yield back the balance of my time.
        Chairman Chaffetz. I thank the gentleman.
        We will now recognize the gentlewoman from Michigan, Mrs.
    Lawrence, for 5 minutes.
        Mrs. Lawrence. Thank you, Mr. Chairman and ranking member.
        Welcome, Chairman Wheeler.
        Mr. Wheeler. Thank you.
        Mrs. Lawrence. I appreciate you being here today. My
    friend, my colleague Stated that there was a Statement that you
    did not intend to be a wallflower. I find that refreshing.
    Those who take an oath to serve the people and to be part of
    our regulatory process should not be a wallflower; they should
    be actively engaged. And I appreciate the passion you have
    distributed today.
        I want you to know when I came to Congress I too had heard
    a lot about this net neutrality. I have done my homework and I
    came to Congress with an open mind and willingness to see both
    sides of this issue. I also am aware that over 4 million people
    filed public comments with the FCC. Four million. Most of them
    average people voting yes. And I also saw the President's
    comments on this issue.
        So one of the things I want to ask of you today, Mr.
    Wheeler, is to really solidify you in this position. Chairman
    Wheeler, you were supported by telecom companies when President
    Obama selected you to this position, is that correct?
        Mr. Wheeler. I believe so, yes, ma'am.
        Mrs. Lawrence. And you were unanimously, meaning both sides
    of the House, confirmed, by the Senate as well.
        Mr. Wheeler. Yes, ma'am.
        Mrs. Lawrence. So it was not just one side of the House, of
    the Senate, it was both sides.
        Mr. Wheeler. No, ma'am. Yes, ma'am.
        Mrs. Lawrence. And then from 1976 to 1984, you worked for
    the National Cable Television Association, which is clearly
    representing these agencies that would be affected, and
    eventually became the president and CEO, is that correct?
        Mr. Wheeler. Yes, ma'am.
        Mrs. Lawrence. And from 1992 to 2004, Chairman Wheeler, you
    served as the president and the CEO of the Cellular
    Telecommunications and Internet Association, is that correct?
        Mr. Wheeler. Yes, ma'am.
        Mrs. Lawrence. Clearly, you would not be a wallflower. So
    you know this telecom industry very well, because if there ever
    was such a thing as the Internet or ISP, you would know that,
    correct?
        Mr. Wheeler. I have spent my professional life in this
    space, ma'am.
        Mrs. Lawrence. So, knowing this, would you push for
    regulations that you knowingly were aware that would damage the
    industry that you represented for so many years?
        Mr. Wheeler. [No audible response.]
        Mrs. Lawrence. So the decision and the regulation that you
    advocated for, your position was this wold not damage, but
    enhance.
        Mr. Wheeler. Thank you, Mrs. Lawrence, that is a really
    good question. I think there are two answers to it. No. 1 is
    that, yes, I was the chief advocate, chief lobbyist for those
    two industries when they were growth industries, not the
    behemoths that they are now, but a different time.
        Mrs. Lawrence. Right.
        Mr. Wheeler. And I hope I was a pretty good advocate. They
    were my client. My client today is the American consumer.
        Mrs. Lawrence. Yes.
        Mr. Wheeler. And that is who I want to make sure that I am
    representing.
        Mrs. Lawrence. Yes.
        Mr. Wheeler. Now, doing that, we do not help the American
    consumer by cutting off the nose of those who provide
    competitive broadband service to spite your face. So what we
    were doing in this was balancing the consumer protection with
    the investment necessary to provide competitive broadband
    services. And I went back to my roots as the president of CTIA,
    when the wireless industry sent me to Congress and said we need
    to be regulated as a Title II common carrier with forbearance,
    and Congress agreed with that, and that is the rules under
    which the wireless voice industry since then has had $300
    billion in investment and become the marvel of the world.
        So the answer is yes on both fronts. You can't help
    consumers if you are not stimulating broadband growth. But my
    job today is representing American consumers.
        Mrs. Lawrence. And just for the record, because the
    questioning today is inferring that, would you support
    regulations, and you eloquently Stated that there is a
    balancing of this and information and your experience bring you
    to this point, would you support regulations that would hurt
    ISPs just because the White House thought it was a good idea?
        Mr. Wheeler. Throughout this process I have been trying to
    be very independent and very thoughtful.
        Mrs. Lawrence. And, last, do you honestly believe that net
    neutrality will stifle innovation, hurt access, or hinder the
    growth and development of the telecom industry, given your 40
    years of experience?
        Mr. Wheeler. No, ma'am. And it is not just my opinion that
    counts, however. But when major Internet service providers like
    Sprint, like T-Mobile, like Frontier Communications, like
    Google Fiber, like hundreds of rural providers say that they
    too believe they will be investing and continuing to growth
    competitive broadband, I believe that is reinforcement of this
    point.
        Mrs. Lawrence. Thank you for your service, and I yield back
    my time.
        Chairman Chaffetz. Thank you.
        We will now recognize the gentleman from Alabama, Mr.
    Palmer, for 5 minutes.
        Mr. Palmer. Thank you, Mr. Chairman.
        Thank you, Mr. Wheeler, for testifying.
        Mr. Wheeler. Mr. Palmer.
        Mr. Palmer. You claimed in your opening Statement that this
    was the most open and transparent rulemaking in FCC history, is
    that correct?
        Mr. Wheeler. Yes, sir.
        Mr. Palmer. You have claimed in your testimony that all of
    your communications with the White House were properly
    accounted for with ex parte filings, is that correct?
        Mr. Wheeler. Yes, sir.
        Mr. Palmer. Would you put up the slide, please?
        While they are working on that slide, I have here a copy of
    your ex parte filing for the President's Statement on net
    neutrality. Mr. Wheeler, it is two paragraphs long, three
    sentences total. Are we left to believe that the entirety of
    the White House's involvement in this process can be captured
    in just three sentences?
        Mr. Wheeler. I am now being passed--this is the letter,
    November 10, Dear Ms. Dorsch?
        Mr. Palmer. Yes, that is correct.
        Mr. Wheeler. I believe that it has, then, a two-page
    attachment with it that gets quite specific and says what
    bright line rules should be and things such as that, that
    wireless should be covered and things like that.
        Mr. Palmer. Do we have that?
        Chairman Chaffetz. They are working on getting it, but I
    believe the portion that deals with this topic is, as the
    gentleman says, three sentences.
        Mr. Palmer. Three sentences, yes.
        Mr. Wheeler. I disagree, respectfully, sir. They put in
    here the entire Statement of the President in which he was
    saying this is what I think we ought to stand for.
        Chairman Chaffetz. If the gentleman would yield.
        Are you telling us that Jeffrey Zients came over to meet
    with you and just read the President's Statement?
        I will yield back to Mr. Palmer.
        Mr. Wheeler. I don't think that was the question. Maybe I
    am confused here, Mr. Palmer.
        Mr. Palmer. Well, let me be a little more specific. Your
    calendar shows on February 2014 you had two phone calls the
    same afternoon with a counselor to the President, John Podesta,
    and with the White House Office of Science & Technology Policy,
    is that correct?
        Mr. Wheeler. If the calendar says that, I don't recall
    talking to Mr. Podesta, but if the calendar says that.
        Mr. Palmer. You don't recall talking with Mr. Podesta? Do
    you have any recollection of a phone call with Mr. Podesta on
    that day?
        Mr. Wheeler. If the calendar says, sir, I will stipulate to
    it.
        Mr. Palmer. Do you recall talking to the White House Office
    of Science & Technology Policy?
        Mr. Wheeler. I have talked to them, yes, multiple times.
        Mr. Palmer. Can you give us an idea of what was discussed
    in either of those calls?
        Mr. Wheeler. I don't recall the specific--what was the date
    that you were specifying?
        Mr. Palmer. February of last year, 2014.
        Mr. Wheeler. I don't know what the specifics of that call
    were, I don't recall it.
        Mr. Palmer. Do you have a recollection of having those
    calls?
        Mr. Wheeler. If my calendar says, then I must have. I don't
    have a recollection of it. And the other thing is there is a
    whole bunch of things that are going on that are relevant, but
    I don't know what we were talking about.
        Mr. Palmer. Well, it shows up on your calendar, and if you
    are having a difficult time remembering the calls and certainly
    the content of those calls, should either of those calls have
    been recorded as ex parte contacts?
        Mr. Wheeler. I think there are two answers to the question.
    One, I don't recall the content; second, as we have discussed
    previously, there are specific guidelines rules as far as what
    ex parte is; and, third, that there is, and has been since the
    first Bush Administration, a ruling that contacts with the
    Administration and with the Congress are not ex parte.
        Mr. Palmer. Last question here. What other contacts do you
    recall that you have had with the White House staff prior to
    the April 2014 emails that have been publicly released?
        Mr. Wheeler. You have my calendar and you have my emails.
        Mr. Palmer. Mr. Chairman, I yield the balance of my time.
        Chairman Chaffetz. Now recognize the gentleman from
    California, Mr. DeSaulnier, for 5 minutes.
        Mr. DeSaulnier. Thank you, Mr. Chairman.
        Mr. Chairman, I just want to thank you for your service. I
    am tremendously proud of not just your decision, but also your
    testimony today, and how you have handled yourself,
    particularly considering, as one of my colleagues pointed out,
    your background.
        Mr. Wheeler. Thank you.
        Mr. DeSaulnier. And coming from the San Francisco Bay Area,
    obviously the importance to innovation for us and having many
    constituents and friends who work at companies like Facebook
    and Google and Apple, we want to make sure we get it right; and
    also having a presence in my district of AT&T and Comcast, I
    understand the balance you had to go through.
        I also understand the importance of the balance of your
    independence and expertise of independent commissions and their
    relationship with the Administration and Congress, and I
    actually think there is obviously a very strong argument to be
    made that someone like yourself and your staff are more
    appropriately situated to avoid some of the politics and make
    these decisions.
        Having said that, I was particularly taken by your comments
    to one of the questions about whether you were, by appearance,
    looking like you were sort of second-guessing your decision and
    your vote, and your response to that, I thought, was very
    forthright and very determined and clear. So that was to the
    decision. Knowing that the process is probably as important and
    the perspective of the process is as important as the actual
    decisionmaking, how would you respond to the question of are
    you equivocating about your concerns about the questions you
    are being asked and the process?
        Mr. Wheeler. So I believe that we handled this,
    Congressman, just as any other issue that comes before us,
    whether it is exciting and headline grabbing like this or much
    more mundane things we normally deal with; that we used the
    established procedures and precedents very religiously.
        Mr. DeSaulnier. So would you say that your comments about
    your pride in the actual decisionmaking you feel equally as
    proud as the process?
        Mr. Wheeler. I think the process worked, sir.
        Mr. DeSaulnier. OK. So your comment about the number of the
    input from the public, the 4 million comments, would you
    ascribe a reason for that? I have gotten lots of input, I know
    we all have, from average, everyday citizens. Could you ascribe
    the motivation?
        Mr. Wheeler. I think that the Internet touches people's
    lives more than any other network probably in the history of
    mankind, and everybody, believe me, everybody has an opinion
    about the Internet and everybody wants to talk about the
    Internet. So when you begin addressing issues such as will the
    Internet continue to be fair, fast, and open, those are things
    that it doesn't take an engineering degree or a computer
    science degree to be able to understand. Those are things you
    can understand that affect people individually, and I think
    that is why we had this kind of response.
        Mr. DeSaulnier. I appreciate that. It is interesting
    sitting in this room and seeing behind you a picture of the
    connection of the Transcontinental Railway. When you look from
    a historical perspective of how the Federal Government has
    handled what would be considered assets of the commonwealth,
    but also wanted to be fair to the people who were investing
    from the private sector, whether it was railroads or television
    or the media, from your perspective, one of the concerns is who
    benefits and who does not, and usually the poorest Americans
    have benefited the least, at least in the short-term.
        Do you have any comments about this rulemaking and the
    digital divide? Will it help eliminate that or by not doing
    this rulemaking and having sort of an opposite rulemaking, how
    it would affect the poorest of Americans?
        Mr. Wheeler. If you do not have access, free, fair, open
    access, then you, per se, have a divide; and so when we come
    out and talk about how there needs to be, no matter where you
    are, no matter what legal content it is, that there should be
    open access to it, that the predicate to not having a divide.
    Not to say that there aren't challenges that we will continue
    to face, but that the baseline is there has to be openness.
        Mr. DeSaulnier. Thank you, Mr. Chairman.
        Chairman Chaffetz. Thank you. I thank the gentleman.
        Now recognize the gentleman from Iowa, Mr. Blum, for 5
    minutes.
        Mr. Blum. Thank you, Mr. Chairman.
        Thank you, Chairman Wheeler, for being here today and
    sharing your insights with us. I must admire your green tie.
    Obviously, I did not get the memo.
        Mr. Wheeler. It is that day.
        Mr. Blum. Yes.
        I have a general question.
        Mr. Wheeler. When you grow up with an Iowa woman who is big
    into Irish, you make sure that you wear a green tie, sir.
        Mr. Blum. Well said.
        I have a general question for you and then a more specific
    question. In your opening Statement this morning, you mentioned
    that one of the FCC's goals, let me make sure I get this
    correct, is to protect the open Internet as a level playing
    field for innovators and entrepreneurs.
        Mr. Wheeler, I am one of those innovators and I am one of
    those entrepreneurs. My concern, as a small businessman, Mr.
    Wheeler, is I have seen firsthand what happens to private and
    free marketplaces when the heavy hand of the Federal Government
    gets involved; and typically what happens, we see less
    innovation, we see lower qualities, we see higher prices,
    higher taxes. An example of that recently is the Affordable
    Care Act, which was supposed to help level the playing field
    for small businesses, and we have seen there higher prices,
    less innovation, higher taxes.
        My question to you, and a question I get asked in Iowa
    often, Mr. Wheeler, is what steps is the FCC going to take to
    ensure, to ensure that the Internet remains vibrant,
    innovative, and open, when history, once again, has shown us
    when the heavy hand of the Federal Government gets involved in
    a free and vibrant market, bad things happen?
        Mr. Wheeler. Thank you, Mr. Blum. First of all, I would
    like to identify with you as one entrepreneur to another. I too
    have been a small businessman; I have started a half a dozen
    companies. Some worked, some didn't.
        Mr. Blum. That happens.
        Mr. Wheeler. You understand that experience as well, I am
    sure.
        Mr. Blum. Yes.
        Mr. Wheeler. And for the decade before I took this job, I
    was a venture capitalist who was investing in early stage
    Internet protocol-based companies. So I know both personally,
    from my own entrepreneurial experience, as well as from my
    investing experience, that openness is key. If the companies
    that I had invested in did not have open access to the
    distribution network, it would have been an entirely different
    story.
        Mr. Blum. What will you do to guarantee it?
        Mr. Wheeler. What you can tell your constituents is that it
    is openness that is the core of creativity, because there
    should be nobody acting as a gateway and saying, hmm, you are
    only going to get on my network if you do it on my terms. And
    the key, then, as we go to the previous discussion that what
    you want to do is make sure you have that gateway not blocking
    the openness of entrepreneurs and at the same point in time
    that gateway not being retail price regulated so that it can
    continue to invest. And that is the kind of balance that we
    were trying to do. But I would urge you to tell your
    constituents the opportunity for innovation and the opportunity
    for the scaling that is required of innovation has never been
    greater because the networks are open.
        Mr. Blum. With all due respect, many people back in Iowa
    would say you are trying to solve a problem that doesn't exist
    today.
        I have a specific question for you. During an interview
    with the Consumer Electronics Show in January, you said that
    you had an aha moment in the summer of that year when you
    realized the Telecommunications Act of 1996 applied Title II
    classification to wireless phone providers, but exempted them
    from many of its provisions.
        Later in the year, House Communications Subcommittee Chair
    Greg Walden said that he met with you in November 2014 to
    reiterate congressional Republicans' concern with Title II
    regulation of the Internet. In that meeting, Chairman Walden
    said you assured him that you were committed to net neutrality
    without classification of broadband under Title II. Sounds to
    me like a flip flop. Can you explain that difference?
        Mr. Wheeler. I respect Mr. Walden greatly, and I am going
    to be testifying before him on Thursday. I saw that he made
    that Statement. I went back to the contemporaneous notes from
    that meeting and we have a completely different set of
    recollections and, in fact, the notes because my notes say that
    I said that we would use light touch Title II and Section 706.
    I don't know what is going on; all I am saying is those are
    what my notes are, sir.
        Mr. Blum. Thank you.
        I yield my time.
        Chairman Chaffetz. Thank you.
        Now recognize the gentleman from Georgia, Mr. Carter, for 5
    minutes.
        Mr. Carter. Thank you, Mr. Chairman.
        Thank you, Mr. Wheeler, for being here today. We appreciate
    it very much. In the short 5 minutes that I have, I want to try
    to get a better understanding of two things. First of all,
    throughout the process today and through my reading and through
    listening, it just appears that the whole process, there was
    more attention paid to the White House than there was to
    Congress, and I just don't understand why that would be the
    case in an independent body like yours. Did you serve on the
    transition team for the Obama Administration?
        Mr. Wheeler. Yes, sir.
        Mr. Carter. You did. That is correct. So it is safe to say
    and true to say that you have a very close relationship with
    the President, is that right?
        Mr. Wheeler. I am not sure that I have a close relationship
    with the President. I know the President.
        Mr. Carter. Well, you served on his transition team. I
    don't think he would have somebody who wasn't close to him on
    his transition team. Agreed?
        Mr. Wheeler. I am not going to make representations for the
    President.
        Mr. Carter. OK. Fair enough. Fair enough. OK, well, he
    didn't ask me to be on his transition team. Let's put it that
    way, OK?
        Well, the day after the vote for the rule, did it strike
    you as being interesting at all that a fellow commissioner of
    yours called the new rule President Obama's plan?
        Mr. Wheeler. Everybody is entitled to their own opinion. I
    think it is appropriate to State something very clearly in
    response to what you are saying. Since taking this job, I met
    once with the President in the Oval Office; it was the first
    couple of days on the job. It was congratulations, welcome to
    the job.
        Mr. Carter. I understand that.
        Mr. Wheeler. In that meeting, in that meeting, sir, he said
    to me you need to understand I will never call you; you are an
    independent agency.
        Mr. Carter. Then why do you think a fellow commissioner
    made the comment that this is President Obama's plan for the
    Internet? Why do you think that someone would make that
    comment?
        Mr. Wheeler. He has been good to his word, sir, and I have
    no idea why somebody would want to make that kind of comment.
        Mr. Carter. Why do you think that the Democratic National
    Committee made the Statement that it was President Obama's
    plan?
        Mr. Wheeler. I have noticed occasionally over time that
    both committees will engage in hyperbole.
        Mr. Carter. So you just think it is hyperbole? Do you agree
    with the DNC's Statement?
        Mr. Wheeler. I believe that this is a plan that was put
    together by the FCC.
        Mr. Carter. So you do not agree with the DNC's Statement
    that this is President Obama's plan.
        Mr. Wheeler. Well, let's get specific. One, he didn't have
    Section 706 in what he sent when he sent something in. Second,
    he didn't cover interconnection, which we cover. Third, he
    talked about forbearing from rate regulation, not the 26 other
    things that we do. I think that we produced a plan that is
    uniquely our plan and is a plan that is based on the record
    that was established before us; and that when the President
    joined the 64 Democratic Members of Congress and the millions
    of people and said he too thought this made sense, that he was
    piling on rather than being definitive.
        Mr. Carter. All that is fine, but let me ask you through
    the process of this evolution of the plan, did your thought
    process change at all? I mean, initially it appeared that you
    had in mind what was referred to as a hybrid 706 plan.
        Mr. Wheeler. You actually used the right word there, my
    evolution on this plan. I started out with pure 706 and then I
    realized, as I said in my testimony, that that wouldn't work
    because of the commercially reasonable test, and so I started
    exploring Title II kinds of ideas.
        Mr. Carter. Did anyone lead you in this exploration?
        Mr. Wheeler. Yes, sir, all kinds of commenters and a lot of
    work that was put into that.
        Mr. Carter. Do you think any of those commenters were
    influenced by the White House?
        Mr. Wheeler. I have no idea.
        Mr. Carter. One final question. Do you feel that you paid
    as close attention to the White House as you paid to Congress?
        Mr. Wheeler. Sir, I believe that I have, frankly, spent
    more time discussing this issue with Members of Congress than
    with the Administration.
        Mr. Carter. Then ultimately do you feel like you listened
    to the input of Congress more so than the White House?
        Mr. Wheeler. I paid full attention to the record that was
    established in this proceeding, and it included Members of
    Congress saying no, don't do Title II, and it included Members
    of Congress saying do do Title II.
        Mr. Carter. Again, do you feel like you paid as close
    attention to Congress as you did to the White House?
        Mr. Wheeler. I think my responsibility is to be responsive
    to all of the people who are involved.
        Mr. Carter. I can't tell whether that is a yes or no.
        Mr. Wheeler. I think I was very responsive to Congress.
        Mr. Carter. Thank you very much.
        Chairman Chaffetz. Thank the gentleman.
        And I appreciate the gentleman's commitment to St.
    Patrick's Day as exemplified by that jacket, but the chair is
    prepared to rule that he has only been outdone by the gentleman
    from Wisconsin, who clearly is wearing his colors today, and
    will now recognize that gentleman from Wisconsin, Mr. Grothman,
    for 5 minutes.
        Mr. Grothman. Thanks for hanging around so long.
        Last month The Wall Street Journal, you maybe saw, had an
    article reporting that the White House had spent months in a
    secretive effort to change the FCC course. Did this news come
    as a surprise to you? When you heard about it, what was your
    reaction?
        Mr. Wheeler. So there is a standard process, I believe,
    where the White House works on developing their position. I was
    not a part of it.
        Mr. Grothman. Did it surprise you when you heard about it?
        Mr. Wheeler. It is not a surprise that something like that
    goes on.
        Mr. Grothman. OK. Last spring and summer you had various
    meetings with White House officials. Did you become aware at
    that time that the White House was working on an alternative to
    your original proposal?
        Mr. Wheeler. I had heard rumors that the White House was
    looking at this, as I say, like they look at all other issues
    to develop an administration position.
        Mr. Grothman. OK. The White House, apparently, in
    formulating this alternative, had dozens of meetings with
    online activists, startups, traditional telecommunication
    companies. We believe participants were allegedly told not to
    discuss the process. Were you aware of these meetings at the
    time?
        Mr. Wheeler. I knew that there was a process, this group. I
    did not know who they were meeting with.
        Mr. Grothman. OK.
        I yield the rest of my time.
        Chairman Chaffetz. Thank you.
        Now recognize the gentleman from Maryland, Mr. Cummings.
        Mr. Cummings. Mr. Wheeler, as we now wind down this
    hearing, Mr. Chairman, I want to thank you again for your
    testimony. When decisions are made by various bodies,
    commissions, quite often people are in disagreement with those
    decisions, and I don't think there is anything wrong with
    looking behind the curtain to try to figure out what the
    process was, because one of the things that we have been
    pushing very hard on in this committee is the whole idea of
    transparency. So your testimony has been very enlightening.
        I think we need to keep in mind that these decisions are
    made by people who come to government, and they don't have to
    do that, but they come to government trying to bring their own
    experiences to the table, their concerns, and their hopes of
    bringing us more and more to that perfect union that we talk
    about.
        So I want to thank you for all that you have done and
    continue to do. And I want to thank the other commissioners and
    your employees. I think a lot of times in these circumstances
    we forget that there are employees who have worked very hard on
    these issues and trying to do it right, so that is very
    important. I hope that you will take that back to your
    commissioners and the employees.
        And I am hopeful that we can move forward here. Again, I
    have listened to you very carefully. There was a moment, I
    mentioned to my staff, that kind of touched me a bit, when you
    were asked whether you were backtracking on your decision; and
    the passion that you responded in saying that absolutely not,
    this is a decision that you all made and that you are proud of
    it, and that is something that is very important to you. You
    can't fake that. You can't fake it. And as a trial lawyer, I am
    used to watching people testify.
        Another thing that you said and you were very clear is that
    you adhered to the rules, and I appreciate that and I believe
    so. So we look forward to continuing to work with you and again
    I want to thank you for your testimony.
        Mr. Wheeler. Thank you, Mr. Cummings.
        Chairman Chaffetz. Mr. Chairman, I appreciate your being
    here today. We were made aware that the inspector general has
    opened an investigation of this process. Are you aware of that
    investigation?
        Mr. Wheeler. No.
        Chairman Chaffetz. It is my understanding it is not an
    audit, it is not an inspection, but an actual investigation.
    Would you be willing to cooperate with this investigation?
        Mr. Wheeler. Of course.
        Chairman Chaffetz. I think one of the key things, and it
    was brought up on both sides, is the process of openness and
    transparency. My personal opinion, there could have been a lot
    more done to maximize the transparency and the openness. The
    rules do allow you latitude to give it more transparency than
    you did. I think one of the things our body should look at is
    compelling that openness and transparency, rather than making
    it simply discretionary; and that is something we will have to
    take back, because there are rulings that go one direction or
    another. Some people are happy, some aren't.
        But the idea that the public could, say, have a 30-day
    opportunity to see the final rule I think rings true with a lot
    of people. This notion that, right up until the time you voted
    for it, nobody outside of that Commission is allowed to see the
    final product does not lend itself well to maximizing openness
    and transparency. And that is just my comment, it is not a
    question. But I do think a 30-day window would do that.
        I also think that the interactions with those who have an
    opinion is fine, it is a healthy one. But the lack of
    disclosure about those, overly redacting emails does lead one
    to believe that there was a bit more of a secret type of
    communication going on there, and I think you can understand,
    at least I hope that you can appreciate why some people would
    come to that conclusion, particularly given the dramatic change
    in the policy that you took.
        Nevertheless, I think this was a good and healthy hearing.
    We appreciate your participation. That is what this process is
    about. There are fact-finding things that we engage in and I
    appreciate your participation here today. We do have a number
    of outstanding requests from the FCC that we would appreciate
    your providing that information to this committee. Some take a
    little bit longer in time, some are fairly easy, but we
    appreciate your staff who have to do a lot of this work, and
    thank them for those efforts.
        This committee now stands adjourned.
        [Whereupon, at 12:40 p.m., the committee was adjourned.]

                                  APPENDIX

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                   Material Submitted for the Hearing Record

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