Testy Reviews of Pai, House Democrats' Record Lead Hearing

House Communications Subcommittee members in both parties delivered Thursday on expectations for a highly partisan FCC oversight hearing (see 2009160076) in which many lawmakers gave what they viewed as their final verdict on the commission’s performance under Chairman Ajit Pai. Democrats castigated what they saw as the FCC's missed opportunities on telecom policy, including not doing more to improve connectivity amid COVID-19. Republicans defended Pai as doing as much as he could under statutory authority. The House Commerce Committee’s own policy track record during this Congress came into question amid renewed pressure for a compromise on aid legislation.

Pai “ignored the millions of families falling through the digital cracks," said House Commerce Committee Chairman Frank Pallone, D-N.J. “Rather than extending the E-rate program to cover the digital classrooms in students’ and teachers’ homes,” the FCC “accepted students huddled around fast-food parking lots to get a Wi-Fi connection.” The FCC “took action” on E-rate Wednesday by opening a second FY 2020 filing window (see 2009160036) “but somehow forgot to help kids with internet connectivity at home.” Sen. Ed Markey of Massachusetts led a letter Thursday with Minority Leader Chuck Schumer of New York and almost three dozen other Democrats urging the FCC to retool E-rate.

“We need a national plan and coordinated federal resources” to address connectivity issues highlighted by the pandemic, “none of which this administration or this FCC has seen fit to provide,” said House Communications Chairman Mike Doyle, D-Pa. “We have a government asleep at the wheel,” with FCC “misplaced priorities” throughout Pai’s chairmanship. “This FCC has been dead-set on removing consumer protections, enabling increased consolidation and hollowing out programs intended to connect low-income Americans.”

Commerce ranking member Greg Walden of Oregon was one of many Republicans calling Pai’s chairmanship a success and labeling the hearing a “partisan attack” by Democrats. “I guess we’re in that” election campaign “season, long on nasty quotes and short on facts,” Walden said. “You’d think that when fires are destroying communities in the West and [COVID-19] is upending life nationwide that Democrats could rise above partisan rancor and show America how we can work together to close the digital divide.”

Other Democrats faulted Pai on a range of issues. Rep. Anna Eshoo of California called the FCC “missing in action” for not adequately responding to cell tower outages in California amid recent wildfires. “You haven’t taken” effective action or held a long-sought field hearing on outages during 2019 fires (see 2004130044), she said. Eshoo called inadequate the FCC’s inquiry into whether it should share network outage reporting system and disaster information reporting system read-only outage reports with other government officials (see 2002280069).

The Pai-led FCC “has done a lot” to “ensure Americans are better connected,” Walden said. The commission has been executing a plan to end “burdensome regulations that hinder investment in broadband network deployment and resiliency,” which “allowed our networks to withstand the COVID-19 stress test while socialists in Europe struggled to micromanage their networks under burdensome regulations like Democrats have advocated for here.”

Communications ranking member Bob Latta, R-Ohio, was “pleased to see the swift, overwhelming response by industry and the FCC to address” pandemic connectivity issues “in ways that prioritize American consumers,” including the Pai-led voluntary Keep Americans Connected pledge. “Working with -- not against -- the industry and in the public’s best interest, the FCC was able to secure connectivity for countless American families,” Latta said. He cited the COVID-19 Telehealth Program.

Pai Pushback

Pai defended the FCC’s record, striking back against House Communications Democrats’ telecom policies. The FCC released a list of its accomplishments during Pai’s chairmanship. He drew support from the American Consumer Institute, Americans for Tax Reform, R Street Institute and Taxpayers Protection Alliance. New America’s Open Technology Institute criticized Pai.

“This FCC has delivered a lot of value,” Pai said. “That is in notable contrast with this subcommittee.” A December FCC oversight hearing indicated “everyone seemed to agree on the need” for legislation to allocate money from the coming auction of spectrum on the 3.7-4.2 GHz C band (see 1912050043) “to fund national priorities like rural broadband,” Pai said, but “287 days later, the FCC has set up the auction and this Congress has enacted nothing.” Congress “enacted nothing” to repeal the 2012 Spectrum Act's mandate for public safety to move off the 470-512 MHz T band (see 2009140020) or to fund efforts to improve the FCC’s broadband coverage data collection practices, despite widespread agreement on both, Pai said.

Doyle conceded his bid to enact the Clearing Broad Airwaves for New Deployment Act (HR-4855) on C-band auction proceeds is dead “because COVID prevented us from dealing with that” as intended (see 2007130054). He countered Pai’s other “admonitions,” saying the House passed legislation to repeal the T-band mandate and fund broadband mapping improvements (see 2005130059) via the Health and Economic Recovery Omnibus Emergency Solutions (Heroes) Act COVID-19 aid bill (HR-6800). “You need to save that speech for the Senate Republicans,” who refused to consider that measure, Doyle said. Rep. Marc Veasey, D-Texas, blamed Senate Majority Leader Mitch McConnell, R-Ky., for blocking HR-6800.

The House Problem Solvers Caucus’ pandemic aid proposal, which includes $12 billion “for broadband hot spots in underserved communities” (see 2009150068), is getting renewed interest as a potential compromise after President Donald Trump told reporters Wednesday he might be interested. Trump liked “the larger amount” of aid the caucus proposes. “Some of the Republicans disagree, but I think I can convince them to go along with that because I like the larger number,” he said. House Democratic and GOP leaders dismiss Tuesday's proposal.

“I’m open to” the $12 billion broadband funding figure, Walden told us. “I think we all agree there’s a digital divide,” and “it’ll probably take some more federal money” to close it. “Private investments are what are really going to close the majority” of the gap, he said. “We should try to get more of that to occur and incent that” via legislation to ease regulatory barriers and reallocate spectrum for commercial use.

Commissioners' Future

The hearing featured discussions that Rep. John Shimkus, R-Ill., termed a bipartisan “farewell” to Commissioner Mike O’Rielly and Democrats’ “coronation” of Commissioner Jessica Rosenworcel. O’Rielly’s written testimony acknowledged this was “likely the last time I will testify before Congress as a sitting member of the Commission,” given Trump’s decision to revoke his renomination. Trump nominated NTIA Senior Adviser Nathan Simington to replace O’Rielly (see 2009160064).

Doyle, Shimkus, Walden and others praised O’Rielly’s service at the FCC. Commerce Vice Chair Yvette Clarke, D-N.Y., asked about Commissioner Geoffrey Starks’ stated opposition to NTIA’s petition for FCC regulations defining the scope of Communications Decency Act Section 230. O’Rielly’s reluctance to publicly back the Trump-sought petition is considered the main reason his renomination was quashed (see 2008040061).

O’Rielly “has done a terrific job” at the FCC, “and I wish he would have been able to continue on” for another term, “but obviously those are decisions made by the White House,” Walden told us. “I’d like to see full membership on the commission before the end of the year. The worst thing would be if we end up with a 2-2 tie” there “going into 2021.”

Shimkus didn’t explain what future role he believed Democrats were envisioning for Rosenworcel. Many observers believe she's a leading contender to become FCC chair if Democratic presidential nominee Joe Biden wins the November election (see 2006170053). Doyle and other House Communications Democrats repeatedly sought Rosenworcel’s views on the direction the FCC should have gone on a range of policy issues, including its COVID-19 response.