In The Arena Obama Should Fire His FCC Chairman

Zephyr Teachout is fellow at the New America Foundation and associate law professor at Fordham Law School. Her book, Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United, will be published by Harvard University Press in September.

Barack Obama made an important promise when he first ran for president. “The Internet is perhaps the most important network in history, and we have to keep it that way,” he said in 2007. As a senator, he had similarly called for a “ neutral platform” uncontrolled by “some corporate media middleman” like Verizon or Comcast. Obama, in other words, was committed to preserving network neutrality—the notion that Internet service providers like AT&T, Comcast and Verizon have to provide fair and neutral access to all websites and applications; they can’t make small websites slow to load and give “ fast lanes” to monopolies and large companies who pay extra for special treatment.

But last Thursday, the chairman of the Federal Communications Commission, Tom Wheeler, proposed a network neutrality rule that would authorize those pay-to-play fast lanes. The FCC approved the proposal but will take public comment over the next four months before a final ruling. The problem with Wheeler’s plan, though, is that discrimination begets discrimination: Without net neutrality, bigger companies will get more traffic and more power, and will in turn have more money to pay for even more access. Eventually, they can control what we see and read. It’s the opposite of the American commitment to decentralized democratic and economic power.


The Obama White House responded to the FCC’s proposal with a distancing statement, noting that the FCC is “an independent agency” and adding, “We will be watching closely as the process moves forward in hopes that the final rule stays true to the spirit of net neutrality.” While the statement overall was a clear snub of Wheeler’s efforts, the term “independent agency” is merely code for saying Obama’s hands are tied. After all, he can’t legally fire any of the FCC commissioners, including the chairman, during their fixed five-year terms in the same way that he can fire, at will, the heads of non-independent agencies and departments such as the CIA, State Department or Defense Department.

But the president (and everyone else) seems to be overlooking one power he does have: the authority to remove Wheeler from the chairmanship, promoting another commissioner to that spot and leaving Wheeler as one of the other four commissioners. In particular, both Mignon Clyburn and Jessica Rosenworcel, the two other Democrats on the five-person board, spoke out eloquently in official statements on Thursday, criticizing Wheeler’s proposal for authorizing fast lanes and being a “network neutrality” rule in name only. Either Clyburn or Rosenworcel could take over the agency, scrap Wheeler’s plan in favor of an alternative and move quickly to ensure an open Internet, thereby fulfilling the cornerstone of the Obama campaign’s tech agenda after the four-month comment period.

While firing Wheeler as chairman would be an unusual move, there are at least four solid reasons the president should do it.

First, he has every right to do it. The Communications Act of 1934, the legislation that created the FCC, makes clear in Section 4(a) that the president has the power to “designate as chairman” one of the five commissioners. There seems to be no precedent or law saying that the president cannot change that designation. The commissioners have fixed terms as commissioners, not as chairs. In fact, whenever a new president takes office, the chairperson typically steps down from that post pretty much immediately, allowing the new president to designate a replacement. (Outgoing chairs usually step down by leaving the FCC altogether, rather than staying on as mere commissioners, as was the case with Wheeler’s predecessors, Julius Genachowski and Kevin Martin, but Wheeler would not be obligated to leave.)

Second, it’s not just that Obama can demote Wheeler—he also should. Wheeler has lost just about everyone’s confidence. Three weeks ago, word of Wheeler’s proposal leaked to the public and prompted a massive backlash. More than 150 companies, 100 investors, dozens of nonprofit groups, dozens of congressmen and senators and hundreds of thousands of citizens have written or called the FCC urging it to stop the proposal—well before the proposal was officially released on Thursday. What’s more, Wheeler’s rhetoric on what he insists is a “network neutrality” rule that does not authorize paid fast or slow lanes directly contradicts the substance of the proposal itself: Paragraph 97 plainly permits “individualized arrangements for priority treatment.” That kind of doublespeak will make it difficult for anyone to believe Wheeler’s claims over the next months.

It doesn’t help that the thrust of Wheeler’s proposal seems to dovetail with his lobbying background. Before becoming chairman, Wheeler was the head lobbyist for the National Cable & Telecommunications Association, the main cable lobbying group, and then for the CTIA—the Wireless Association, which lobbies for AT&T and Verizon, among others. Wheeler has spent much of his career working for and with the companies he is now supposed to regulate, and his net neutrality-quashing plan seems to fit right into that pattern.

Third, Wheeler’s network neutrality rule is truly bad for business, leaving small or unconnected companies with few options if Internet providers discriminate against them. They must either accept the discrimination, and suffer for it, or go the route of an antitrust case similar to the massive, lengthy and expensive ones brought against Standard Oil, IBM or Microsoft. More than 100 leading venture capitalists have written to Wheeler, arguing, “if established companies can pay for better access speeds … start-ups with applications that are advantaged by speed (such as games, video, or payment systems) will be unlikely to overcome that deficit no matter how innovative their service.” The executive director of the New York Tech Meetup and other New York companies, including Kickstarter and Tumblr, also visited the FCC earlier this month to make the case that the chairman’s proposal will “stifle innovation and entrepreneurship in the New York City tech sector that is at the center of the city’s recent and future economic growth.” And Etsy, the hobbyist e-commerce website, has written to the FCC explaining that Wheeler’s proposal would force the site to raise costs on its 1 million sellers, almost 90 percent of whom are female micro-entrepreneurs, which would mean “decreasing the number of sellers who would otherwise have access to the platform.”

Fourth, the other two Democratic commissioners, either of whom could potentially replace Wheeler, not only seem committed to network neutrality and the rest of the Obama tech agenda, but also have the courage and competence to follow through. Even though it is somewhat unusual for commissioners in the chairman’s own party to buck his will, both Clyburn and Rosenworcel have bravely done so on this issue. The first day after the Wheeler proposal first leaked, both tweeted in favor of an open Internet for the benefit of girls in STEM education. Two weeks later, in a speech to the American Library Association, Rosenworcel called on Wheeler to delay consideration of his proposal and to listen to the concerns of the public, the business community and civil society. On the FCC blog, Clyburn catalogued all of her previous statements that clash with the chairman’s proposal. Plus, both Clyburn’s and Rosenworcel’s statements on Thursday were unequivocal and reflected candidate Obama’s strong support for real, not sham, network neutrality. Either woman would make a far better chair than Wheeler in terms of substance, credibility and responsiveness to the public. After all, neither of them was the top lobbyist for the industries they are now regulating.

Some observers might note that booting Wheeler from the chairmanship still leaves him with one of the five votes on the commission. But the chairperson has more than a single vote: He or she controls the agenda, drafts the initial orders and directs most of the FCC staff. Moreover, Wheeler’s statements have been inconsistent enough that with a strong message from the president, in the form of a demotion, Wheeler might change his mind.

The point is: Obama doesn’t have to sit idly by, and nor do we. Obama promised that he would protect network neutrality and has opposed fast and slow lanes on the Internet in multiple speeches. By firing Wheeler, the president would not only keep his promise but also protect our society from fees, tolls and competitive distortions on the basic economic and speech infrastructure of our time. He has no excuse not to.