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20–493 2017

OVERSIGHT OF THE FEDERAL COMMUNICATIONS 

COMMISSION 

HEARING 

BEFORE THE

SUBCOMMITTEE ON COMMUNICATIONS AND 

TECHNOLOGY 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

MARCH 22, 2016 

Serial No. 114–129 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

(II) 

COMMITTEE ON ENERGY AND COMMERCE 

FRED UPTON, Michigan 

Chairman 

JOE BARTON, Texas 

Chairman Emeritus 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

GREG WALDEN, Oregon 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

Vice Chairman 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Missouri 

BILLY LONG, Missouri 

RENEE L. ELLMERS, North Carolina 

LARRY BUCSHON, Indiana 

BILL FLORES, Texas 

SUSAN W. BROokS, Indiana 

MARKWAYNE MULLIN, oklahoma 

RICHARD HUDSON, North Carolina 

CHRIS COLLINS, New York 

KEVIN CRAMER, North Dakota 

FRANK PALLONE, JR., New Jersey 

Ranking Member 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

G.K. BUTTERFIELD, North Carolina 

DORIS O. MATSUI, California 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

JERRY MCNERNEY, California 

PETER WELCH, Vermont 

BEN RAY LUJA ́ N, New Mexico 

PAUL TONKO, New York 

JOHN A. YARMUTH, Kentucky 

YVETTE D. CLARKE, New York 

DAVID LOEBSACK, Iowa 

KURT SCHRADER, Oregon 

JOSEPH P. KENNEDY, III, Massachusetts 

TONY CA ́ RDENAS, California 

(III) 

SUBCOMMITTEE ON COMMUNICATIONS AND TECHNOLOGY

GREG WALDEN, Oregon 

Chairman 

ROBERT E. LATTA, Ohio 

Vice Chairman 

JOHN SHIMKUS, Illinois 

MARSHA BLACKBURN, Tennessee 

STEVE SCALISE, Louisiana 

LEONARD LANCE, New Jersey 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Missouri 

BILLY LONG, Missouri 

RENEE L. ELLMERS, North Carolina 

CHRIS COLLINS, New York 

KEVIN CRAMER, North Dakota 

JOE BARTON, Texas 

FRED UPTON, Michigan (ex officio) 

ANNA G. ESHOO, California 

Ranking Member 

MICHAEL F. DOYLE, Pennsylvania 

PETER WELCH, Vermont 

JOHN A. YARMUTH, Kentucky 

YVETTE D. CLARKE, New York 

DAVID LOEBSACK, Iowa 

BOBBY L. RUSH, Illinois 

DIANA DEGETTE, Colorado 

G.K. BUTTERFIELD, North Carolina 

DORIS O. MATSUI, California 

JERRY MCNERNEY, California 

BEN RAY LUJA ́ N, New Mexico 

FRANK PALLONE, JR., New Jersey (ex 

officio) 

(V) 

C O N T E N T S 

Page 

Hon. Greg Walden, a Representative in Congress from the State of Oregon, 

opening statement ................................................................................................ 2 

Prepared statement .......................................................................................... 4 

Hon. Anna G. Eshoo, a Representative in Congress from the State of California, opening statement .................................................................................... 5 

Hon. Fred Upton, a Representative in Congress from the State of Michigan, 

opening statement ................................................................................................ 7 

Prepared statement .......................................................................................... 7 

Hon. Kevin Cramer, a Representative in Congress from the State of North 

Dakota, prepared statement ................................................................................ 9 

Hon. Frank Pallone, Jr., a Representative in Congress from the State of 

New Jersey, opening statement .......................................................................... 10 

WITNESSES

Tom Wheeler, Chairman, U.S. Federal Communications Commission ............... 12 

Prepared statement .......................................................................................... 14 

Answers to submitted questions ...................................................................... 104 

Mignon Clyburn, Commissioner, Federal Communications Commission ........... 21 

Prepared statement .......................................................................................... 23 

Answers to submitted questions ...................................................................... 145 

Jessica Rosenworcel, Commissioner, Federal Communications Commission ..... 28 

Prepared statement .......................................................................................... 30 

Answers to submitted questions ...................................................................... 152 

Ajit Pai, Commissioner, Federal Communications Commission .......................... 32 

Prepared statement .......................................................................................... 34 

Answers to submitted questions ...................................................................... 162 

Michael O’Rielly, Commissioner, Federal Communications Commission ........... 40 

Prepared statement .......................................................................................... 42 

Answers to submitted questions ...................................................................... 172 

SUBMITTED MATERIAL

Statement of civil rights groups, submitted by Mr. Butterfield .......................... 90 

Op-Ed by former Representative Henry Waxman entitled, ‘‘FCC cable box 

proposal affects more than just cable boxes, The Hill, March 21, 2016, 

submitted by Mr. Butterfield .............................................................................. 94 

Statement on the Lifeline Program by the Center on Budget and Policy 

Priorities, submitted by Mr. Butterfield 1

Statement of RLJ Entertainment, Inc., submitted by Ms. Eshoo ....................... 96 

Article entitled, ‘‘Fixing Television with Tomorrowvision,’’ by Public Knowledge, April 2, 2012, submitted by Ms. Eshoo ..................................................... 98 

Whitepaper entitled, ‘‘Tomorrowvision,’’ by Public Knowledge, April, 2012, 

submitted by Ms. Eshoo 2

Statement of civil rights groups, submitted by Ms. Eshoo ................................... 101 

Documents on broadcast investment, submitted by Ms. Eshoo 3

1 Available at: http://docs.house.gov/meetings/IF/IF16/20160322/104714/ 

HHRG-114-IF16-20160322-SD010.pdf. 2 Available at: http://docs.house.gov/meetings/if/if16/20160322/104714/ 

hhrg-114-if16-20160322-sd004.pdf. 3 Available at: http://docs.house.gov/meetings/if/if16/20160322/104714/ 

hhrg-114-if16-20160322-sd008.pdf. 

(1) 

OVERSIGHT OF THE FEDERAL 

COMMUNICATIONS COMMISSION 

TUESDAY, MARCH 22, 2016 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COMMUNICATIONS AND TECHNOLOGY, COMMITTEE ON ENERGY AND COMMERCE, Washington, DC. 

The subcommittee met, pursuant to call, at 10:15 a.m., in room 

2123 Rayburn House Office Building, Hon. Greg Walden (chairman 

of the subcommittee) presiding. 

Members present: Representatives Walden, Latta, Barton, Shimkus, Blackburn, Lance, Guthrie, Olson, Pompeo, Kinzinger, Bilirakis, Johnson, Long, Ellmers, Collins, Cramer, Upton (ex officio), 

Eshoo, Doyle, Yarmuth, Clarke, Loebsack, DeGette, Butterfield, 

Matsui, McNerney, Luja ́n, and Pallone (ex officio). 

Staff present: Gary Andres, Staff Director; Ray Baum, Senior 

Policy Advisor for Communications and Technology; Mike 

Bloomquist, Deputy Staff Director; Leighton Brown, Deputy Press 

Secretary; Rebecca Card, Assistant Press Secretary; Gene Fullano, 

Detailee, Telecom; Kelsey Guyselman, Counsel, Telecom; Tim 

Pataki, Professional Staff Member; David Redl, Chief Counsel, 

Telecom; Charlotte Savercool, Professional Staff, Communications 

and Technology; Dan Schneider, Press Secretary; Dylan Vorbach, 

Deputy Press Secretary; Gregory Watson, Legislative Clerk, Communications and Technology; Christine Brennan, Minority Press 

Secretary; Jeff Carroll, Minority Staff Director; David Goldman, 

Minority Chief Counsel, Communications and Technology; Jerry 

Leverich, Minority Counsel; Lori Maarbjerg, Minority FCC 

Detailee; Ryan Skukowski, Minority Policy Analyst; and Andrew 

Souvall, Minority Director of Communications, Outreach and Member Services. 

Mr. WALDEN. I call the subcommittee on Communications and 

Technology to order and welcome our distinguished panel, the 

chairman and Federal Communication Commission commissioners, 

thank you for being here this morning. Good morning Chairman 

Wheeler. Commissioners, thank you all for joining us. 

I want to start this morning with two points of personal privilege. First, would you all join me in wishing Commissioner Clyburn 

a very joyous and happy birthday? It is not every day you turn 30, 

including today. But, oh, well. We know you think of it as a present 

to be here with us today. 

Thank you for your great service to the country and may you 

have many, many more wonderful birthdays ahead, not necessarily 

celebrated with us. 

2 

Second, today is the last hearing that my good friend of nearly 

30 years, an extraordinary counselor, Ray Baum will serve as a 

member of our committee staff. As fate would have it, our parents 

were friends back in the 1930s. Ray and I won back the seats that 

our fathers had both held and both had been defeated by Democrats in, when we were elected to the Oregon legislature in 1988. 

He followed me as House Majority Leader and then later served as 

a member of the Oregon Public Utility Commission, appointed by 

a Democratic governor. And then another Democratic governor appointed him to serve as chairman of the Public Utility Commission 

and he served as the chair of the state Federal-State Joint Board 

on Universal Service as well. A really exciting topic, if anybody 

wants to get too deeply into, Ray can take you there. 

He has given us more than the 5 years he committed, when I 

convinced him and his wife to come to Washington and I hope we 

all wish him well as he begins a new journey with the broadcasters. Ray, thanks for decades of strong, fair, and effective public 

service for Oregonians and all Americans. Godspeed on your new 

journey. 

Ms. ESHOO. Mr. Chairman? Mr. Chairman? 

Mr. WALDEN. I would yield to my friend from California. 

Ms. ESHOO. I thank the chairman. We all wish Ray the absolute 

best because he has given his best here. He has always been a gentleman. He is a public policy expert. He has given his all to the 

committee and during times when it was difficult for him to do that 

because he was battling something in terms of his health but he 

never missed a beat. And I call that real dedication, dedication to 

not only our committee and the work and the responsibilities of 

this committee but ultimately for the American people. 

So, God bless you, Ray. We are going to miss you a great deal. 

Thank you for everything that you have done on behalf of all of us. 

Mr. WALDEN. The gentleman from New Mexico. 

Mr. LUJA ́ N. Thank you, Mr. Chairman. And Ray, this is a surprise to me, sir, but I also had the honor of working with Ray 

Baum and learning from Ray Baum back when he was a utility 

commissioner and I was on the New Mexico commission as well. 

And it has been an honor working with you, Ray. Many successes 

and I look forward to continuing to work with you. You are a great, 

great person and you truly are an asset to America. I look forward 

to learning from you and working with you in your future endeavors. 

OPENING STATEMENT OF HON. GREG WALDEN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OREGON 

Mr. WALDEN. Thank you. Now, on to our hearing. 

We are entering what will most likely be, if tradition holds, the 

final chapter in the history of the FCC under Chairman Wheeler’s 

leadership. As the record clearly shows, while we have worked together on many public policy issues, we have also been at odds at 

times on process and policy. 

While the Commission began with a commitment to reform the 

agency from within, we know that the Commission has implemented only half of the recommendations of the 2014 FCC Process 

Reform Working Group. This is why I believe true reforms require 

3 

changes in law that can transcend any particular chairman or any 

particular commission. The public deserves no less. Unfortunately, 

sharp divisions within the Commission are widely reported. With 

the rapidly changing communications marketplace, we have never 

needed this independent agency to work together for the public interest more than now. 

And I have to admit there are times when I have expressed my 

displeasure with the FCC’s actions and its failure to adhere to the 

will and intent of Congress. For example, notwithstanding passage 

of the bipartisan legislation requiring that existing JSAs be grandfathered from the FCC’s controversial revisions to the ownership 

rules, the FCC’s media bureau recently terminated a JSA in spite 

of this restriction, evoking a strong bipartisan rebuke. And the recent Senate report on how the chairman and his general counsel 

capitulated to the White House demands regarding net neutrality 

proceeding illustrates, without question, the willingness of agency 

leadership to subvert what I would call fair and open process to political pressure from the White House. 

But that is not all. I am concerned about the FCC’s actions regarding set top boxes and what that means for copyrighted programming and consumer privacy. While the FCC has wrapped its 

proposal in pro-competition and pro-consumer bunting a broad 

range of stakeholders, including content providers, program distributors, large and small, and civil rights groups have emerged 

pointing out that the proposal raises serious concerns about its 

downside. I am sure that we will hear more about that from our 

other committee members today. 

Meanwhile, the chairman has circulated a proposal to impose privacy rules on ISPs modeled on those for the old telephone network. 

Instead of making the proposal public for all to see, all the public 

gets is a fact sheet. Words matter, to quote others on this committee. Mr. Chairman, I call on you to make that proposal available for all to see, including for commissioners to comment upon. 

And I think that would be helpful and important. 

And the chairman has circulated his plan to expand the Lifeline 

program to subsidize mobile and fixed broadband internet access 

and contemplates increasing spending by $750 million. Again, because this proposal is not public, we have only the FCC’s fact sheet 

to guide our understanding. While it appears the chairman has 

proposed a budget mechanism, certainly a necessary step, and reforms to combat waste, fraud, and abuse, which we support going 

after all of that, the devil is in the details as to whether they are 

meaningful details which we cannot see until the item is adopted 

and released. Notably absent from the FCC’s marketing materials 

is a discussion of the financial impact of the proposal on the families that pay each month through fees on their phone bills to support the program. 

These are all significant matters that will define how we communicate for years to come. It will not serve the American people if 

they are resolved in a manner that ignores opposing views, discredits opposing input on its face, and gives short shrift to collaboration in favor of expediency. Good process—openness, transparency, and accountability—honest policy debate, and compromise 

are the catalyst for balanced, sustainable outcomes. 

4 

Finally, let me end with this. If all goes as planned, and it appears that it will, the incentive auction will begin on March 29th. 

And I commend the Commission and its staff and the chairman for 

moving this process along. It has been a very difficult road, never 

traveled before. I consider the legislation that got us here some of 

the most important work to have come out of our subcommittee, 

legislation that reflected bipartisan agreement, reached through debate and compromise. I think it is something we can all be proud 

of. 

We all hope the auction is a success. And, of course, only time 

will tell. Mr. Chairman, you have recognized this is only the beginning of a very complex endeavor. I was pleased to see that your 

staff has already turned to the post-auction repack issues. There 

are, of course, controversies about the sufficiency of the 39-month 

time line and the $1.75 billion set aside fund to fund it. In addition, I remain concerned about keeping translators and low-power 

television stations on the air as appropriate under the rules. I remind the FCC of the age-old requirement that licensed stations supersede unlicensed uses of broadcast spectrum. Know that we take 

these issues seriously, and I know you do, and will continue to 

work closely with you and your team as this phase of the post auction proceeds to make sure that the intent of the law is followed 

and that free over-the-air broadcast programming is not adversely 

affected. 

Again, thank you for your good work on the auction. 

I guess I have used up all the time I had. So, with that, I would 

recognize the gentlelady from California for opening remarks and 

again thank the chairman and the Commission for the work you 

do and for being here today. 

[The prepared statement of Mr. Walden follows:] 

PREPARED STATEMENT OF HON. GREG WALDEN

I want to start this morning with two points of personal privilege. First: Would 

you all join me in wishing Commissioner Clyburn a very joyous and happy birthday 

today. What a present to her to get to spend time here! Thanks for your service to 

our great country and may you have many, many more wonderful birthdays ahead. 

Second, today is the last hearing that my good friend of nearly 30 years, and extraordinary counselor, Ray Baum will serve as member of our committee staff. Our 

parents were friends back in 30s, Ray and I won back the seats that our fathers 

had both held—and been defeated in—when we were elected the Oregon legislature 

in 1988. He followed me as Majority Leader of the Oregon House, and then Ray 

went on to serve as a member of the Oregon Public Utility Commission, then as 

its chairman-both appointments by Democratic governors. And he served as the 

state chair of the Federal-State Joint Board on Universal Service, as well. He’s 

given us more than the five years he committed when I convinced him to come to 

Washington and I hope we all will wish him well as he begins a new journey with 

the broadcasters. Ray thanks for decades of strong, fair and effective public service 

for Oregonians and all Americans. Godspeed, my friend. 

We are entering what will most likely be—if tradition holds—the final chapter in 

the history of this FCC under Chairman Wheeler’s leadership. As the record clearly 

shows, while we have worked together on many public policy issues, we’ve also been 

at odds at times on process and policy. 

While the Commission began with a commitment to reform the agency from within, we know that the Commission has implemented only half of recommendations 

of the 2014 FCC Process Reform Working Group. This is why I believe true reforms 

require changes in law that can transcend any particular chairman or commission. 

The public deserves no less. Unfortunately, sharp divisions within the Commission 

are widely known. With the rapidly changing communications marketplace, we’ve 

5 

never needed this independent agency to work together for the public interest more 

than now. 

And, I have to admit; there are times when I’ve expressed my displeasure with 

the FCC’s actions and its failure to adhere to the will and intent of Congress. For 

example, notwithstanding passage of bipartisan legislation requiring that existing 

JSAs be grandfathered from the FCC’s controversial revisions to the ownership 

rules, the FCC’s media bureau recently terminated a JSA in spite of this restriction—evoking a strong bipartisan rebuke. And the recent Senate report on how the 

Chairman and his General Counsel capitulated to White House demands and cooked 

the record in the net neutrality proceeding illustrates without question the willingness of agency leadership to subvert fair and open process to political pressure from 

the White House. But that’s not all. 

• I am very concerned about the FCC’s actions regarding set top boxes and what 

that means for copyrighted programming and consumer privacy. While the FCC has 

wrapped its proposal in pro-competition and pro-consumer bunting a broad range 

of stakeholders including content providers, program distributors large and small, 

and civil rights groups have emerged pointing out that the proposal raises serious 

concerns about its downside. 

• Meanwhile, the Chairman has circulated a proposal to impose privacy rules on 

ISPs modeled on those for the old telephone network. Instead of making the proposal public for all to see, all the public gets is a fact sheet. Words matter (to quote 

my ranking subcommittee member.) Mr. Chairman, I call on you to make the proposal available for all to see and comment upon. 

• And the Chairman has circulated his plan to expand the Lifeline program to 

subsidize mobile and fixed broadband Internet access—and contemplates increasing 

spending by $750 million. Again, because the proposal is not public we have only 

the FCC’s fact sheet to guide our understanding, While it appears that Chairman 

Wheeler has proposed a ‘‘budget mechanism’’—certainly a necessary step—and reforms to combat, waste, fraud and abuse—the devil is in the details as to whether 

they are meaningful—details which we cannot see until the item is adopted and released. Notably absent from the FCC’s marketing materials is a discussion of the 

financial impact of the proposal on the families that pay each month through fees 

on their phone bills to support the program. 

These are significant matters that will define how we communicate for years to 

come. It will not serve the American people if they are resolved in a manner that 

ignores opposing views, discredits opposing input on its face, and gives short shrift 

to collaboration in favor of expediency. Good process—openness, transparency, and 

accountability—honest policy debate, and compromise are the catalyst for balanced, 

sustainable, outcomes. 

Finally, let me end with this note. f all goes as planned, and it appears that it 

will, the incentive auction will begin on March 29th. I consider the legislation that 

got us here some of the most important work to have come out of our Subcommittee—legislation that reflected bipartisan agreement—reached through debate 

and compromise. We all hope that the auction is a success. And of course, only time 

will tell. But Mr. Chairman, as you have recognized this is only the beginning of 

a very complex endeavor. I was pleased to see that your staff has already turned 

to the post-auction repack. There are, of course, controversies about the sufficiency 

of the 39-month timeline and the $1.75 billion set aside to fund it. In addition, I 

remain concerned about keeping translators and low power television stations on 

the air. I remind the FCC of the age-old requirement that licensed stations supersede unlicensed uses of broadcast spectrum. Know that we take these issues seriously and will continue to work closely with you and your team as this phase of 

the post auction proceeds to make sure that the intent of the law is followed and 

that free over the air broadcast programming is not adversely affected. 

OPENING STATEMENT OF HON. ANNA G. ESHOO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Ms. ESHOO. Thank you, Mr. Chairman, and good morning to you. 

And welcome back to the chairman and each of the commissioners. 

It has been 4 months since you have been here. I think that you 

have made optimum use of the 4 months since you were last here 

because there are a series of actions that are being taken up at the 

6 

Commission that I think put consumers first, strengthen competition and advance innovation. 

At the top of that list is the agency’s vote last month that would 

make it easier for consumers to buy a set top box or an app from 

someone other than their cable company. This technology neutral 

proposal means that any company will be able to manufacture a set 

top box or design an app and sell it to consumers. Should a consumer wish to continue renting their set top box from their pay TV 

provider, they can. No one is going to take it away from them. I 

don’t know if there is that much of a love affair with the set top 

box but if they want it they can keep it. Very importantly, the 

FCC’s proposal is an opportunity to enhance access to independent 

and minority programming, giving consumers the ability to choose 

between set top boxes or apps with improved search functionality 

and user interfaces. 

Nearly 50 years ago, the FCC took action to give consumers 

choice as to whether they wanted to rent their landline telephone 

from Ma Bell. Consumers not only saved money but innovation 

thrived in the telephone market. 

The FCC is also busy in its efforts to modernize its Lifeline program to make broadband more affordable to low-income Americans. 

This has long been the goal of, I think, the entire committee, certainly huge support on our side of the aisle. Under the proposal to 

be voted on next week for the first time ever, for the first time ever 

low-income consumers will be able to use the $9.25 per month Lifeline support towards stand-alone broadband service. Access to 

broadband is the 21st century’s lifeline providing a pathway to 

jobs, education, healthcare and so much more. 

The FCC’s action will further our nation’s progress toward bridging the digital divide that has really haunted our country. We have 

looked for ways, talked about it, dreamed about it, hoped for it, and 

I think that this is a major step forward of reaching the President’s 

goal of bringing high-speed broadband to 20 million more Americans by 2020. 

In just a matter of days, the FCC will begin its first voluntary 

incentive spectrum auction with global mobile traffic expected to 

increase nearly eight-fold between 2015 and 2020 and wireless carriers taking steps to deploy 5G. I think it is critical that we continue efforts to free up more spectrum for both licensed and unlicensed use. 

At the same time, the FCC will take critical action at its March 

meeting to protect the privacy of broadband consumers, efforts to 

continue to reform the special access mark. And Mr. Chairman, I 

hope this is just closed, done, accomplished at the end of this year. 

Transition to Next-Gen 911 and ensuring the internet remains 

open and accessible to all Americans. 

None of these are small tasks but taken together, not only individually, but taken together I think that this will leave a remarkable imprimatur on the country of this commission’s work. 

So, I thank you. I look forward to a lively discussion and questions that you are going to be asked. And again, thank you for 

being here and the work that you are doing. And I yield back. 

7 

Mr. WALDEN. The gentlelady yields back the balance of her time. 

The chair recognizes the chairman of the full committee, the distinguished gentleman from Michigan, Mr. Upton. 

OPENING STATEMENT OF HON. FRED UPTON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN 

Mr. UPTON. Well, thank you, Mr. Chairman. I just want to echo 

the words for Ray Baum and I would say, with apologies to the rest 

of the staff, I don’t know of a more professional hard-working leader that we have had in Ray over the last 5 years. He has helped 

set the standard. We work as a team on both sides of the aisle. Yes, 

of course, we disagree from time to time on certain issues but we 

are not disagreeable and he has set that bar and we really appreciate his very hard work. I knew about his background before and 

he has been an integral cog in all that we have done and we all 

appreciate that friendship and professionalism from Day 1. 

Chairman Wheeler and members of this committee, welcome 

back for sure. 

Last November, the House did pass by a voice vote H.R. 2583, 

the FCC Process Reform Act, a testament of our bipartisan commitment to solidify the FCC as a model of openness, transparency, and 

collegiality. This committee has pursued FCC process reform on a 

bipartisan basis, going back to the 112th Congress, and I am proud 

of our continued efforts to improve the function and transparency 

of our government. 

Underscoring the need for this legislation are, of course, the continued reports of process failures and divisive partisanship at the 

FCC. The FCC is the steward of one of the most vibrant and innovative sectors of our national economy. Significant matters remain 

before it and the stakes are certainly high. The communications 

and technology sectors are among our nation’s most precious economic assets, the pinnacle of innovation and something that we 

should be rightly so proud of. 

Given the stakes, two of our FCC’s most recent proposals are 

cause for concern. The chairman recently presented his colleagues 

with a proposal to impose new requirements on the video subscription market and a new privacy regime for internet service providers. These proposals have the potential to harm the very sectors 

that they are attempting to preserve and stimulate. The Commission should look with a skeptical eye at calls to regulate part of a 

market at the request of competitors. 

And as the chairman seeks to implement what is likely the final 

year of his agenda, it is no less important now that matters are addressed through a process that is open and transparent, informed 

through robust debate, and resolve through bipartisan compromise. 

These were procedures that once set the FCC apart and should be 

returned to. It is only through this approach that we can avoid uncertainty and the threat to investments. 

And I yield to Mr. Latta, Blackburn, and Cramer. 

[The prepared statement of Mr. Upton follows:] 

PREPARED STATEMENT OF HON. FRED UPTON

Chairman Wheeler and members of the commission, welcome back. Last November the House passed by voice H.R. 2583, the FCC Process Reform Act, a testament 

8 

to our bipartisan commitment to solidify the FCC as a model of openness, transparency, and collegiality. This committee has pursued FCC process reform on a bipartisan basis going back to the 112th Congress and I am proud of our continued 

efforts to improve the function and transparency of our government. 

Underscoring the need for this legislation are the continued reports of process failures and divisive partisanship at the FCC. The FCC is the steward of one of the 

most vibrant and innovative sectors of our national economy. Significant matters remain before it and the stakes are extremely high. The communications and technology sectors are among our nation’s most precious economic assets—the pinnacle 

of innovation and something that we should rightly be proud of. 

Given the stakes, two of the FCC’s most recent proposals are cause for concern. 

The Chairman has recently presented his colleagues with a proposal to impose new 

requirements on the video subscription market and a new privacy regime for Internet service providers. These proposals have the potential to harm the very sectors 

they are attempting to preserve and stimulate. The Commission should look with 

a skeptical eye at calls to regulate part of a market at the request of competitors. 

As the Chairman seeks to implement what is likely the final year of his agenda, 

it is no less important now that matters are addressed through a process that is 

open and transparent, informed through robust debate, and resolved through bipartisan compromise. These were procedures that once proudly set the FCC apart, and 

should be returned to. It is only through this approach that we can avoid the uncertainty and threat to investment and jobs creation that a flawed process promises 

to deliver. 

Mr. LATTA. I appreciate the chairman for yielding and I also 

want to thank the Commissioner for being with us today. 

I am always continually amazed by the success and the productivity of the communications and technology industry. This dynamic sector is a bright spot in our economy, as it rapidly advances 

and evolves to meet consumer demands. Given the Federal Communications Commission’s integral role in this marketplace, it is 

critical that Congress monitor its regulatory policies that impact 

the industry’s success. 

With that said, I am concerned with some of the actions and proposals emerging from the Commission. Take for instance, the set 

top box Notice of Proposed Rulemaking which seeks to replace the 

failed cable card regime with yet another government-dictated 

standard. And Congressman Green and I worked together to get 

our bill language inserted into STELAR to eliminate the integration band, we intended to rid the marketplace of an outdated technological mandate. However, rather than allowing consumer demands and competitions to shape the industry, the FCC has placed 

it upon itself to inhibit the future of pay TV with unnecessary government involvement. The NPRM will surely impede innovation 

and limit consumer choice. 

With that, I look forward to today’s hearing and I will yield back 

to the chairman. Thank you. 

Mrs. BLACKBURN. I thank you, Mr. Chairman, for yielding. We 

are appreciative of the Commissioner’s time in coming here before 

us this morning. There are concerns, as you have heard from some 

of the policies that you have moved forward with, net neutrality, 

municipal broadband. The actions that were taken in North Carolina and Tennessee in muni broadband were so radical that even 

DOJ didn’t support what you were doing. 

We also have concerns pertaining to AllVid and lessening of the 

protections that are there for patent holders and copyrights. 

So, lots to discuss today. So, we thank you for your time and 

your preparation in being here. And I yield to Mr. Cramer. 

9 

Mr. CRAMER. Thank you for yielding. Thank you to all three of 

you. 

I guess I would just associate myself, as much as anything, with 

the chairman of the full committee and the chairman of the subcommittee and put a finer point, perhaps on the set top box rule. 

While I have all the same concerns they have, I have a special particular concern about its impact, the disproportionate impact it 

would have on smaller video providers, rural video providers, and 

a number of us are always looking out for the smaller, rural providers. 

And then I would just add one other issue and that is that I continue to hear from especially my rural telephone cooperatives of 

call dropping issues. And if maybe after the hearing somebody 

could hook up with my staff, I would like to get the latest from you 

all. Because we just heard from Tyler Kilde of Griggs County, for 

example. They are having as many as five complaints a month and 

that still seems awfully high. And I yield back. Thank you. 

[The prepared statement of Mr. Cramer follows:] 

PREPARED STATEMENT OF HON. KEVIN CRAMER

Chairman Wheeler, Commissioner Clyburn, Commissioner Rosenworcel, Commissioner Pai, and Commissioner O’Reilly, thank you for joining us today at this FCC 

oversight hearing to discuss the many important issues being considered at the 

FCC. 

Since there are so many members here today, I’ll keep my comments brief. 

As an at-large representative of a rural state, and as a former public service commissioner of 10 years for North Dakota, many of the issues being raised today hit 

home for me in more ways than one. For this reason, I’d like to raise a number of 

issues related to rural-specific areas. 

First, I’d like to discuss the ongoing issue of call completion in my state. While 

many may think this issue is dead in 2016, I am told completion problems are still 

occurring. 

Earlier this month, my staff met with Tyler Kilde of Griggs County Telephone 

Company in Enderlin, North Dakota—a town of less than one thousand people located an hour outside of Fargo. 

Mr. Kilde informed my staff that it is not uncommon for him to have five complaints a month relating to call completion. Following this hearing, if your staff 

could please update me on the latest information at the FCC related to call completion, I’d appreciate it. 

Second, I’d like to express my concerns for the cable set top box NPRM and its 

implementation of the ‘‘AllVid’’ approach. The rule severely harms copyright and 

content providers by forcing their product to be handed over without their consent. 

It also forces a multichannel video programming distributor (MVPD) to hand over 

viewing data without the consumers consent and allows a 3rd party device to use 

that data without consent. 

I am particularly concerned about the impacts these costly rules would have on 

smaller video providers. Since the rules require MVPDs to re-engineer their systems 

to send information to 3rd party boxes, smaller providers will be disproportionately 

impacted by these rules due to their lack of staff and resources. For these reasons 

and others, I strongly oppose these rules and I hope the FCC will reconsider their 

current approach. 

Lastly, I’d like to bring up the FCC’s proposed rules on online privacy, which 

would place additional requirements on Internet services providers. 

According to a recent study from former Clinton Administration privacy expert 

Peter Swire, the rise of encryption protocols such as HTTPS is increasingly reducing 

the amount of accessible information available to Internet service providers. 

With 42 of the top 50 Web sites now using default encryption, and with 70 percent 

of all Internet traffic expected to be encrypted by the end of 2016, I am unconvinced 

that the FCC’s proposed privacy rules on ISPs will do anything more than add additional rules to an industry, which has already seen its fair share of regulations in 

the past several years. I would hope you’ll reconsider your efforts on this issue as 

well. 

10 

Thank you again for testifying today and I look forward to hearing your responses 

on these important issues. 

Mr. WALDEN. The gentleman yields back. 

Mr. CRAMER. And I love Ray, too. 

I, too, served as a public service commissioner. He was a legend 

then, too. 

Mr. WALDEN. I thank the gentleman for his comments. And all 

time has been consumed. So, now we go to the ranking member of 

the full committee, Mr. Pallone of New Jersey for opening comments. 

OPENING STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW JERSEY 

Mr. PALLONE. Thank you, Mr. Chairman and also Ranking Member Eshoo. And thank you to all five commissioners for testifying 

today. 

Anyone who thought the FCC would slow down this year certainly underestimated the agency. The Commission has teed up an 

impressive number of important issues, including the incentive 

auction set to launch next week. The auction counts as one of the 

most ambitious efforts the agency has ever undertaken. The air 

waves that can be freed up through this auction, both licensed and 

unlicensed, will ensure consumers feel the full power of the mobile 

revolution. 

But as important as it is to help consumers of mobile services, 

the auction can also be considered successful if it works for broadcast viewers as well. Back in New Jersey, we understand the importance of a seamless transition after the auction because disasters like Hurricane Sandy can strike at any time and when they 

do, viewers depend on their local broadcasters. 

Fortunately, all five FCC commissioners have committed to ensuring viewers do not lose signal as a result of the repacking process. That is why I drafted the Viewer Protection Act to give them 

all the tools they need to keep this commitment. This bill will prevent viewers’ TVs from going dark, while also ensuring consumers 

of mobile broadband benefit from the incentive auction as soon as 

possible. 

Hurricane Sandy also showed the importance of phones in an 

emergency. When the hurricane hit New Jersey, we did not just 

watch our TVs or listen to our radios but we also looked to our mobile phones. Unfortunately, too many of those devices let us down 

when we needed them the most. And that is why I introduced the 

SANDy Act so that we are better prepared the next time disaster 

strikes. 

The SANDy Act has a number of common sense proposals to improve access to communications in a disaster. For instance, the 

SANDy Act would help ensure the customers of any wireless carrier can get signal, even if their own carrier service goes down. No 

one should be left without any bars on their phone when a compatible network is still working. 

The bill would also create a database of critical personnel to keep 

public safety officials and the carriers in better touch during an 

emergency when every second counts. 

11 

I have been in close contact with both Chairman Wheeler and 

the carriers to talk about how to get this done and I want to thank 

them both for taking these issues so seriously. I am optimistic that 

we are close to a breakthrough that would put us in a better position for when the next disaster strikes. 

And again, I thank the chairman, Ms. Eshoo, and the commissioners for being here today. I look forward to today’s discussion. 

I have about 2 1⁄2 minutes left. I would like to split that between 

Mr. Doyle and Mr. Butterfield and yield first to Mr. Doyle. 

Mr. DOYLE. Thank you. I appreciate you yielding to me. And I 

want to thank the chairman for holding the hearing. And to our 

witnesses, this is like de ́ja vu all over again. These guys are here 

all the time. But welcome back. We are glad to see you. 

The Lifeline program connects millions of people around the 

country to their only source of communication and I just wanted to 

take a minute to congratulate Commissioner Clyburn for her leadership on this issue and the efforts of the full commission to modernize this program and bring it into the 21st century. 

I also want to commend the Commission on moving forward on 

broadband privacy reform. I agree that it is critical for FCC rules 

to be updated to suit our modern needs and that these rule recognize the privileged position ISPs hold in acting as gatekeepers for 

the rest of the internet. 

So, Mr. Chairman, that is all I have to say and I would be happy 

to yield back to you so that you can yield to our other colleague. 

Mr. PALLONE. I yield—oh, yes. Thank you. 

Mr. DOYLE. It is just a matter of time. 

Mr. PALLONE. Oh, my God, we started out all right. I yield the 

rest of the time to Mr. Butterfield. Thanks. 

Mr. BUTTERFIELD. Thank you, very much, Mr. Pallone. Let it be 

said that our colleague from Pennsylvania set a record today. 

Thank you, Mike Doyle. I thought you were going to eat up all of 

that time. 

But thank you, Mr. Pallone. Let me begin by sharing with my 

colleagues and thanking the commissioners for their incredible 

work and thank you for coming today. 

I join my many other colleagues in applauding the Commission 

for expanding the Lifeline program to subsidize broadband services 

but I am afraid one of the unintended consequences of the current 

proposal would be the creation of a copay requirement on low-income participants of Lifeline, as well as a phase out of voice-only. 

And so, Mr. Chairman, I urge the Commission to preserve a nocharge option for Lifeline participants who may not be able to afford even a modest co-pay and to maintain a voice-only option. It 

is crucial. It is crucial for Lifelinebeneficiaries in my congressional 

district and across the country that the expansion of the program 

to include broadband will not be at the expense of essential voice 

services. 

Regarding the set top box proposal, I am also concerned with the 

potential for many unintended consequences like many of those 

raised in the Op Ed written by Henry Waxman, including the ability to enforce copyright protections for content creators and distributors as well as the potential negative impact the proposal 

could have on diversity and inclusion of minority voices. 

12 

1The information has been retained in committee files and is also available at http:// 

docs.house.gov/meetings/IF/IF16/20160322/104714/HHRG-114-IF16-20160322-SD010.pdf. 

Along with other stakeholders, I am concerned that the proposal 

could lead to a new forum of digital redlining. Therefore, Mr. 

Chairman, I ask unanimous consent to include three items into the 

record. 

Very briefly, the first letter is addressed to Chairman Wheeler 

signed by ten civil rights organizations urging the Commission to 

postpone the set top box proposal until a study can be conducted. 

[The information appears at the conclusion of the hearing.] 

Mr. BUTTERFIELD. Second is an Op-Ed from our good friend, 

Henry Waxman, that cautions the Commission to explore the myriad of unintended consequences that could arise from the set top 

box proposal. 

[The information appears at the conclusion of the hearing.] 

Mr. BUTTERFIELD. Finally, the third is a copy of comments filed 

by the Center on budget and policy priorities, which urges the 

Commission to not require any cost sharing in order to participate 

in the Lifeline program because evidence shows that doing so 

would dampen low-income households’ ability to participate. 1

Mr. BUTTERFIELD. Thank you. 

Mr. WALDEN. Without objection. 

Mr. BUTTERFIELD. Thank you, Mr. Chairman. 

With that, I yield back and I thank you. 

Mr. WALDEN. The gentleman’s time has expired. All times has 

expired for opening statements. I want to again welcome the chairman and the commissioners here this morning. 

And Chairman Wheeler, obviously, we are going to start with you 

this morning. Welcome back and I look forward to your comments. 

STATEMENTS OF TOM WHEELER, CHAIRMAN, U.S. FEDERAL 

COMMUNICATIONS COMMISSION; MIGNON CLYBURN, COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION; JESSICA ROSENWORCEL, COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION; AJIT PAI, COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION; MICHAEL O’RIELLY, 

COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION 

STATEMENT OF TOM WHEELER 

Mr. WHEELER. Thank you, Mr. Chairman and members of the 

—— 

Mr. WALDEN. But we would ask you to pull that microphone 

pretty close. Thank you. 

Mr. WHEELER. Let me start off with the topic that many of you 

were addressing and that is the upcoming spectrum auction. It is 

only going to be a week—is it not coming through? 

Mr. WALDEN. Yes, you have got to get it really close. Really close. 

There you go. 

Mr. WHEELER. You know I have seldom been accused of not projecting. 

One week from today the green flag goes down on the incentive 

spectrum auction. As the committee has noted, this is the first time 

this has been tried in the world. 

13 

This committee developed the authorizing statute and you all 

have been very involved in the intervening years as the pieces of 

the puzzle were being built. I would be terribly remiss if I didn’t 

mention the incredible work of Gary Epstein and the Incentive 

Auction Task Force at the FCC in this regard. Gary and Howard 

Symons, along with an A plus team, have rustled wrestled with 

issues that no one ever before has had to deal with and it brought 

us to the threshold of this historic auction. 

Now, many have asked about the impact of the D.C. Circuit’s decision that Latina Broadcasting should be provisionally certified to 

participate in the auction. That decision will not delay the March 

29th start date for participating broadcasters to make their initial 

commitments. 

After March 29th, as we always planned, the auction team will 

analyze the initial commitments and calculate the initial clearing 

target. We said this process would take 3 to 4 weeks. The late hour 

inclusion of Latina will require us to update our data files and ensure that the auction system is properly functioning with the updated data prior to circulating the initial clearing target. 

Staff is working through the operational effects of including 

Latina so that we can make those updates. But we have always 

planned the auction bidding in the reverse auction will begin in 

May and we still expect that will happen. 

Insofar as the forward auction, in which the wireless carriers 

participate, we will proceed with the previously announced schedule. There are 104 parties that have expressed interest, a 50 percent increase over the number of qualified bidders in the recordsetting AWS–3 auction. Of course, not all applicants may become 

qualified bidders but we are currently working with them and plan 

to have a final list by April 6th. The forward auction, of course, will 

follow the close of the reverse auction. 

In the coming weeks, we will continue our bidder education and 

training activities so that both reverse and forward auction bidders 

have plenty of time to become familiar with bidding systems before 

the respective auctions begin. 

We are finally at the point where we move from the theoretical 

to the real world. For months, various hypotheses have been put 

forward predicting one effect or another to happen in the auction. 

Next week, the wisdom of this committee in creating a marketplace 

that will begin to deliver market-driven decisions to replace all 

those studies and theories with real marketplace conclusions will 

begin. 

I look forward to discussing this and other issues with you today. 

But before I conclude, I want to once again reiterate the need for 

Congress to become involved in the ability of Next-Generation 911 

to protect Americans. Twenty-first century life-saving is being 

blocked by the realities of getting beyond 20th century technology. 

We at the FCC have done all in our power on this topic, including 

convening a year-long task force to report on the challenges being 

faced. That report is now complete and has been submitted to this 

committee. We look forward to working with you on this important 

priority. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Wheeler follows:] 

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Mr. WALDEN. Thank you, Mr. Chairman. 

And now we go to Ms. Clyburn for your opening statements. 

Commissioner, go ahead. 

STATEMENT OF MIGNON CLYBURN 

Ms. CLYBURN. Thank you. 

Chairman Walden, Ranking Member Eshoo, distinguished members of the subcommittee, please allow me to begin by offering my 

thoughts and prayers to the families and victims of this morning’s 

attacks in Brussels. 

I am grateful for the opportunity to appear before you this morning. 

Competition, competition, competition. It is a phrase we have 

heard Chairman Wheeler repeat time and time again but today, I 

wish to preview an axiom of my own: community, community, community. 

In communities across this nation, be they urban or suburban, 

rural or tribal, there is a communications divide, a divide when it 

comes to broadband access, affordability and infrastructure and a 

divide when it comes to the speeds necessary to take advantage of 

all the internet has to offer. 

This lack of connectivity has disadvantaged so many of our communities that Congress and the Commission wisely decided to act 

by taking a few simple steps to help bridge these chronic divides. 

First, allow me to applaud the leadership of this Committee as 

you consider commonsense proposals to streamline and lower costs 

associated with the deployment of broadband. I stand ready to 

work with you in support of bipartisan proposals that will speed 

the deployment of broadband to more Americans. 

Second, I am pleased to have worked collaboratively with my colleagues Chairman Wheeler and Commissioner O’Rielly to create a 

blueprint for rate of return carriers so that rural communities are 

not left behind. 

Third, and this is critical, once connected broadband service must 

be affordable. The Commission has a statutory duty to ensure that 

services are affordable and that low-income consumers have access 

to advanced services comparable to those available in urban areas. 

But for far too long, the Commission has fallen short of this directive. We have the capacity, however, to change this. 

The chairman has circulated an order that, if adopted, would put 

Lifeline on the soundest footing of all of our universal service programs. The proposal seeks to achieve this by declining support to 

providers, unless a neutral third party has determined that a 

household is eligible, eliminating duplicates, and requiring minimum standards. 

Now, my office has been inundated with concerns about the call 

for minimum standards, particularly for mobile voice, but the 

strongest part of the FCC’s process, one that is the envy of regulators from across the globe is that our process enables parties to 

give and receive feedback. If parties believe that the current proposal does not strike the right balance, I have been clear from the 

beginning that I am open to taking and making appropriate adjustments and I plan to live up to that promise. I am committed to providing qualified Lifeline consumers with choice and competitive 

22 

21st century options. And I am committed to addressing those outstanding concerns that reflect the input of our state regulatory 

partners, as well as those forward-looking providers who are engaged and committed to real reform. 

Finally, I am excited about the possibilities of 5G and its ability 

to fundamentally transform the way we live and interact with each 

other. I believe that the best way to deploy spectrum and the infrastructure required to deploy those 5G services is for the industry 

to talk with local governments and communities, for them to find 

out what the specific needs of the communities are and coordinate 

with them on how a 5G future can actually help those communities 

address their short- and long-term needs. Working together on 

these and other initiatives will bring communities closer together, 

ensuring that they are better connected and ready for the challenges facing them. 

Thank you, again, for the opportunity to speak with you this 

morning and I look forward to answering any questions you may 

have. 

[The prepared statement of Ms. Clyburn follows:] 

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Mr. WALDEN. Thank you, Commissioner. We appreciate your 

service on the Commission and your comments this morning. 

Now, we go to Commissioner Rosenworcel. Good morning. Welcome. We are glad to have you here. And please go ahead with your 

testimony. 

STATEMENT OF JESSICA ROSENWORCEL 

Ms. ROSENWORCEL. Good morning, Chairman Walden, Ranking 

Member Eshoo, and members of the committee. Thank you for having me here today. And let me add my best wishes to the chorus 

for Ray Baum. 

Last week I had the privilege of speaking in Austin, Texas at 

South by Southwest. It is a festival for the connected, a place to 

get a glimpse of the future. From virtual reality to robotics, it is 

all there on the streets of Austin. 

Last week I also spent time in California in a rural farming community in the Coachella Valley. It is a place where most roads lead 

to fields but where broadband has not made its way to most households. 

Now, I can say with confidence I am probably the only person 

who was in both of those communities last week. But as dissimilar 

as they seem, they have something in common. They both know 

that future lies in connectivity. They both know that access to modern communications is no longer a luxury. It is where we create. 

It is where we innovate. It is a necessity for full participation in 

civic and commercial life. 

Now expanding this access is front and center at the FCC. We 

will shortly begin work on the world’s first spectrum incentive auction. We will have work to do to repack our nation’s broadcasters. 

We are updated our universal service policies and we are exploring 

spectrum frontiers for 5G wireless service. 

But I want to focus on two things we can do right now that will 

make a difference for the least connected and most-connected 

among us. We can make more space for Wi-Fi and we can help 

bridge the Homework Gap. 

First up, Wi-Fi. The 2.4 gigahertz band, where Wi-Fi makes its 

primary home is getting mighty crowded. The demand for 5 

gigahertz Wi-Fi is also growing. So, before we overwhelm Wi-Fi as 

we know it, we need more efforts to secure more unlicensed spectrum. There is no shortage of reasons why this is a good idea. WiFi democratizes internet access. It helps wireless carriers manage 

their networks through the offloading of traffic and it encourages 

permissionless innovation, just like what I saw all last week on the 

streets of Austin. And it is responsible for more than $140 billion 

in economic activity every year. 

But historically, the legislative process has overlooked the value 

of unlicensed spectrum because it gets low marks in the scoring 

process at the Congressional Budget Office. Yet, this accounting 

misses the mark. It is outdated because the broader benefits of unlicensed spectrum to the economy are so great. So in any effort to 

increase the licensed spectrum pipeline, we need to explore a cut 

for unlicensed. Call it the Wi-Fi dividend. 

And right now at the FCC, we have a golden opportunity for a 

Wi-Fi dividend in the upper portion of the 5 gigahertz band. We 

29 

have a consensus framework for testing this band for unlicensed 

use, while also protecting incumbent efforts to use it for vehicle 

safety. So, we need to work now with our colleagues at the Department of Transportation and the Department of Commerce and get 

this testing underway. 

We also have unlicensed opportunities in the guard bands in the 

600 megahertz band and millimeter wave spectrum at 64 to 71 

gigahertz. We need to seize all of them. 

Second, I want to talk about another issue that matters for the 

future of connectivity and that is the Homework Gap. Today, 

roughly seven in ten teachers assign homework that requires access to the internet but FCC data suggests that as many as one 

in three households in this country do not subscribe to broadband 

service. So, think about those numbers and where they overlap. 

That is what I call the Homework Gap. 

So, if you were a student in a household without broadband, just 

getting homework done is hard. Applying for a scholarship is challenging. And while some students may have access to a 

smartphone, let me submit to you that a phone is just not how you 

want to research and type a paper, apply for jobs, or further your 

education. 

That is why the Homework Gap is the cruelest part of our new 

digital divide. But it is within our power to bridge it and more WiFi can help. In fact, in Coachella Valley, where I was last week, 

they are using Wi-Fi on school buses and turning ride time into 

connected time for homework. But more can be done. And modernizing a Lifeline program to support online access in households 

with school-aged children is critical. And I think the sooner we act, 

the sooner we bridge this gap and give more students a fair shot 

at 21st century success. 

Thank you. 

[The prepared statement of Ms. Rosenworcel follows:] 

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Mr. WALDEN. Thank you. 

Now, we will go to Commissioner Pai. We are honored to have 

you before the panel again this morning. So, please go ahead. 

STATEMENT OF AJIT PAI 

Mr. PAI. Chairman Walden, Ranking Member Eshoo, members of 

the committee, and the indefatigable Ray Baum, thank you for 

holding this hearing and giving me the opportunity to testify. 

I want to focus this morning on two issues where this subcommittee has led and where, unfortunately, the FCC is falling behind: FCC process reform and broadband deployment. 

I first want to begin by thanking the subcommittee for its longstanding focus on FCC process reform. While I firmly believe that 

the agency is at its best when it operates in a bipartisan, collaborative and transparent manner, unfortunately, the agency has not 

lived up to that standard recently. First, the FCC continues to be 

run in a partisan fashion. Since December of 2013, there have been 

20 separate party-line votes at our monthly meetings. That is twice 

as many as under Chairmen Martin, Copps, Genachowski, and Clyburn combined. 

Second, collaboration has fallen by the wayside. During my first 

18 months on the job, Chairman Genachowski and Chairwoman 

Clyburn led us to consensus 89.5 percent of the time on FCC meeting items. Over the past 2 years, that number has dropped precipitously to 56.4 percent. 

Reflecting this shift, the Chairman’s Office frequently shares 

non-public information with the press and select outside parties, 

while leaving commissioners in the dark. For example, 2 weeks 

ago, FCC leadership shared the chairman’s Lifeline proposal with 

the New York Times and promoted it on a call with reporters before sharing it with my office. That is hardly an opening for good 

faith collaboration and it epitomizes how business is now done at 

the agency. 

Third, the FCC continues to shun transparency. Just last week, 

the chairman’s office denied a request from me and Commissioner 

O’Rielly to release the Rating Return Form Plan before we vote. 

Even though Commissioner O’Rielly helped write it and even 

though real advocates have told us that, ‘‘it is absolutely essential 

to see the written words on the page to understand the actual effectiveness of the reforms.’’ 

Or take the idea of being more transparent with our enforcement 

process. The FCC has had success in recent years proposing headline-grabbing fines but its follow-through has been abysmal. Since 

2011, the FCC has proposed over $374 million in fines but it has 

collected only $7.8 million. That is a meager 2 percent recovery 

rate. Only with additional transparency can the public and this 

subcommittee hold the FCC accountable for this colossal failure. 

Now, none of this has to be this way. When I testified before this 

subcommittee a year ago, there was widespread agreement that the 

FCC’s process was broken. The chairman himself acknowledged 

that legitimate issues had been raised. And he announced a process 

reform task force. 

I took this project seriously and I suggested reforms. Among 

other things, I suggested that the chairman provide final versions 

33 

of an order a set time before we vote. I proposed that every commissioner respond when one of us proposes edits. And I suggested 

that every commissioner provide his or her input by a date certain. 

After participating in dozens of meetings, the chairman’s task 

force has accomplished nothing. Not a single reform has been made 

one year later. Indeed, the task force has proven to be a Potemkin 

village designed to persuade Congress that the agency is doing 

something on process reform and, hence, that legislation and oversight aren’t required. But at this point, the only way to ensure 

meaningful FCC process reform is through legislation and vigorous 

oversight. 

I want to turn next to the topic of broadband deployment and I 

salute the subcommittee for its leadership in this area. For its part, 

there is more that FCC can and should be doing. On spectrum, we 

need to open the 5 gigahertz band to unlicensed innovation, as 

Ranking Member Eshoo and I recently called for in a joint op ed. 

We need to move forward with another 12,500 megahertz of millimeter-wave spectrum and we need to launch a rulemaking to 

study spectrum above 95 gigahertz. 

On the wireline infrastructure side, we must continue to reform 

our rules for pole attachments. Let’s reduce the cost that utilities 

charge internet service providers for preparing the poles and conduit. These make-ready costs, as they are known, are a major barrier to competitive entry and the subcommittee rightly targeted 

them as ripe for reform. 

Let’s exclude a pole owner’s capital costs when establishing pole 

attachment rates. This would reduce broadband prices and spur deployment. 

And let’s start adjudicating pole attachment disputes with dispatch. Although the Commission has a special enforcement docket 

for these cases, complaints tend to languish. We have three from 

2014 and two from 2015 still pending. We need to be adjudicating 

those in weeks not years. 

Chairman Walden, Ranking Member Eshoo, members of the subcommittee, thank you once again for holding this hearing. I look 

forward to answering your questions and working with you to ensure a better future for all Americans and, particularly, the Kansas 

Jayhawks. 

[The prepared statement of Mr. Pai follows:] 

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Mr. WALDEN. Wow, that last point kind of got slipped in there. 

Speaking of which, Chairman Wheeler, I didn’t see Ohio State in 

the NCAA Tournament but my Ducks are certainly there. 

ok, now, we will move right along to Commissioner—— 

Mr. WHEELER. Can I duck that question? 

Mr. WALDEN. Yes, we have got a long way to get even during 

the—anyway, back to football. 

ok, now we go to Commissioner O’Rielly. Good morning and set 

us back on course. 

STATEMENT OF MICHAEL O’RIELLY 

Mr. O’RIELLY. Thank you, Chairman Walden, Ranking Member 

Eshoo, members of the subcommittee for the honor of appearing before you today. I add my comments about Ray and he knows my 

thoughts about him as well. 

Let me start with the issue of FCC process reform, as my colleague did. I find it necessary to reiterate that my efforts are not 

about undermining the chairmanship. As I have previously stated, 

even if every one of my proposals were adopted, the chairman 

would still control the agenda and win every vote. Additionally, 

this is not a response to the process or outcome of net neutrality. 

These problems existed prior to that particular item and remain 

today. Instead, my efforts attempt to empower the public to engage 

with the Commission through a fair process, rather than one deeply slanted to ensure that only the right insiders get information 

and can influence outcomes. 

At the same time, we must ensure that the rights of commissioners are not overrun by the chairman and the entrenched bureaucracy. Take, for example, our rules prohibiting all employees, 

including commissioners, from releasing non-public information 

about our proceedings. It sounds noble until you realize that the 

current practice prevents testing out ideas and exchanging creative 

ways to consider an issue. Moreover, the rule is being applied in 

a discriminatory manner to ensure that the chairman and certain 

staff can push selected information to favored parties, while the 

commissioners remain muzzled. 

As for the chairman’s process review task force, it is important 

for the subcommittee to realize what is actually occurring. The 

chairman came before this body three times last year and essentially said that my ideas were legitimate and he was going to consider each one through a special task force. The reality is, 1 year 

later that task force has shown its real purpose to diffuse the debate and deflect legislation in Congress. Just Friday, ironically, the 

last day of so-called Sunshine Week, the message was delivered 

that the general counsel, chairman, and other majority commissioners, have objected to almost each and every idea I raised. My 

proposal is to beef up written rationales for statutory authority, 

provide a check for instances when delegated authority is being 

taken too far, represent the opposing viewpoints when allowing 

outside witnesses at open meetings, or give the public more information about proposals being considered were all denied. They 

were even unwilling to agree to such basic courtesies as holding off 

on press rollout until an item has actually been circulated to commissioners. 

41 

In sum, all the chairman’s leadership team can agree to do is minutiae, such as setting expectations for timelines to post proposed 

edits on our internal email chains. 

This demonstrates that there is no intention of making any real 

changes absent congressional directives that would improve the 

ability of Americans to participate in the government. 

To the extent the subcommittee reads additional areas to review, 

I would observe that the Office of General Counsel has turned from 

an office focused on providing mutual legal analysis and defending 

Commission items before the courts into what it believes is effectively a sixth commissioner, with the ability to supersede the views 

of duly appointed and sworn commissioners. This is harmful to the 

FCC as an institution and will ensure that impartiality and rule 

of law are forever limited to the realm of secondary considerations. 

Turning to substance, I applaud the subcommittee for its extensive efforts to increase the amount of commercial spectrum and remove barriers to the deployment of wireless facilities. Part of my 

attention is focused on opening up millimeter waves for the NextGeneration networks. Accordingly, all potential bands should be 

considered and simple and proven licensing frameworks should be 

adopted to ensure maximum investment and innovation. 

The Commission also appears on track to meet its commitment 

to provide further relief for small cell siting but more can be done 

to increase infrastructure deployment, namely, concluding the decades-old twilight tower review and addressing localities that continue to hinder facility siting. In the same vein, we must increase 

our efforts to open up the 5.9 gigahertz band for unlicensed use. 

Combining these frequencies with adjacent 5 gigahertz spectrum 

would permit increased throughput, speed and capacity. It is not 

my intention to prevent or undermine dedicated short-range communications deployment, as sharing can occur without causing 

harmful interference to safety of life applications. 

Thank you very much, Mr. Chairman. 

[The prepared statement of Mr. O’Reilly follows:] 

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Mr. WALDEN. Mr. O’Rielly, thank you. And we appreciate all the 

testimony of all the members and the chairman. 

Commissioner, Pai, I have several questions about the privacy 

NPRM you are considering. Press reports indicate that the predicate is an assumption that ISPs have unique access to user data, 

thus requiring regulation. Is this true? 

Mr. PAI. Thank you for the question, Mr. Chairman. Unfortunately, under the FCC’s current rules, I am prohibited from disclosing even to you, the chairman of the subcommittee, the particular details of the proposal unless the chairman expressly authorizes it. 

Mr. WALDEN. Seriously, you can’t disclose even to us? 

Mr. PAI. Under the current FCC rules, that is correct. 

Mr. WALDEN. Chairman Wheeler, could you address this? I am 

confused as to why your fellow commissioners are not allowed to 

answer questions as to what is in the privacy proposal you have 

circulated but I understand you and your media team and others 

are free to speak about it in public. 

This, to me, is an issue I know it is running that way. Perhaps 

it has run that way in the past but it seems peculiar that the other 

commissioners can’t comment but you can. Will you let them comment? Can you address this whole—— 

Mr. WHEELER. So, I don’t think that I heard Commissioner Pai 

answer the question you asked him, which was is there a difference 

between the data that an ISP sees and one an edge provider sees. 

Mr. WALDEN. So, what I said is that I had several questions. 

Mr. WHEELER. Answering that question has nothing to do with 

what any specific paragraph of a proposal might say. 

Mr. WALDEN. Right. 

Mr. WHEELER. Point one. If I may, point two: There is a fullthroated, already, discussion about these kinds of concepts which 

don’t translate into the specific language. 

And three, with respect, sir, three, the Notice of Proposed Rulemaking is very specific and the reason you have a Notice of Proposed Rulemaking is so specific language can be put out so that it 

can be commented on by the public and have a full-voiced debate, 

which we will have on the specific language of this item starting 

next week. 

Mr. WALDEN. I think it is intriguing to me and disheartening to 

me that the Commission is set up in a way that the chairman can 

propose something, the chairman can talk about something, and I 

am not picking on you, personally, here, but just the way the system works. It is like if I proposed a bill circulated among all of us 

and then my friend, Mr. Doyle, is prohibited from communicating 

on it publicly or Mr. Pallone, I think you would have a different 

view of our process. 

Commissioner Pai, is that not a corollary that, in effect, that is 

what happens? A chairman of the FCC, take Mr. Wheeler out of 

it, any chairman can propose something; that chairman or chairwoman can comment on it ad infinitum, the New York Times, anybody, but you, as a commissioner can’t, even to us? 

Mr. PAI. That is exactly right, Mr. Chairman. It is a bizarre state 

of affairs where we have to pass something before the American 

public is allowed to see it, with a narrow and particularly notable 

52 

exception of the chairman and his staff being able to push out misleading fact sheets, do press calls, and otherwise push their agenda 

before this full-throated discussion has had a chance to terminate. 

Mr. WALDEN. Commissioner O’Rielly, do you encounter the same 

problem? 

Mr. O’RIELLY. Yes, sir. I have written about this and I believe 

the chairman has an opportunity to write a simple letter to authorize all commissioners to speak as needed on any item through the 

end of his tenure. He has declined to do that, so far. 

Mr. WALDEN. Have other chairs done that? 

Mr. O’RIELLY. They have provided more specifics on particular 

items but what I am suggesting is that the current process is just 

simply broken. I am not sure that other commissioners or other 

chairmen have provided such descriptions as my colleague has provided where you are getting the blog, you are getting the press rollout, you are getting the fact sheets that are not accurate. 

Mr. WALDEN. And you are prohibited from commenting? 

Mr. O’RIELLY. I am actually prohibited from correcting the fact 

sheets when people come and meet with me. I can’t say you know 

I know you think it is going this way but actually that is not true. 

I am not allowed to tell them gee, you are completely wrong; I have 

read the item, that is not right. 

Mr. WALDEN. This just flies in the face of open transparent government, in my opinion, and needs to change. And Chairman, I 

would hope you would take Commissioner O’Rielly’s comments to 

heart. I don’t know if we have to pass something here, put an appropriation bill or what, but this is 2016. This is not 1816. We 

want an open and transparent process so the public can comment. 

We do it or we try to the best of our ability here by putting bills 

out for discussion. We have rules that are made available. Everybody has a chance. I think it just needs to change. 

I want to ask one other question in the 7 seconds I have left and 

it is to you, Mr. Wheeler. The quadrennial review, broadcast ownership rules due by June 30th. I know you all have had a lot on 

your plate. I have commended you for the work on the auction and 

all but this one is a burr under the saddle, 8 years late. What is 

it going to take to get a quadrennial—— 

Mr. WHEELER. I intend to have it on the floor in the schedule 

that I gave you, sir. 

Mr. WALDEN. You will get it done? 

Mr. WHEELER. And we’ve been working on it for months. 

Mr. WALDEN. So, it is going to be done this time by June 30th? 

Mr. WHEELER. I am going to put it on the floor. 

Mr. WALDEN. All right, my time has expired. 

We will now go to the ranking member on the subcommittee, Ms. 

Eshoo, for questions for 5 minutes. 

Ms. ESHOO. Thank you, Mr. Chairman. 

Chairman Wheeler, you have and the full commission has some 

huge issues before it. So, I want to go through three of them: copyright—this all has to do with the set top box proposal—the issue 

of copyright; the issue of privacy; and the issue of impact on minorities both from the professional side and from the consumer 

side. 

53 

First, on copyright. Copyright is important to all of us. We know 

that it is both the life blood of the more than one industry and they 

depend on it being protected. 

Now, there are critics in all of this and that is not a surprise. 

When a major shift is proposed and disruptive, it is disruptive to 

a $20 billion income to the cable industry. So, of course people are 

going to fight very hard because there is a lot of money on the 

table. 

But on the issue of copyright, does anything about this arrangement and the FCC’s proposal change under your proposed rules, 

relative to copyright? 

Mr. WHEELER. Thank you, Ms. Eshoo, the answer is no. And let 

me just excerpt paragraph 71 of the proposal. 

To achieve the statutory mandate, our regulations must ensure 

that navigation devices 1) have content protection that protects 

content from theft, piracy, and hacking; 2) cannot technically disrupt, impede, or impair the delivery of services. It goes on beyond 

that but the fact of the matter is that we have specified copyright 

protection is essential and can be maintained. And I would submit 

that there are tens of millions of examples of that called iPhones, 

iPads, smart TVs, where copyright protection has been maintained 

through set top box-like activities. 

Ms. ESHOO. Now, does the FCC give away any new or unpaid 

rights to distribute video programming? 

Mr. WHEELER. No, ma’am. 

Ms. ESHOO. OK, the answer is no. Now, in your first answer, are 

there additions to the protection of copyright or is it the same set 

of principles and rules that apply today? 

Mr. WHEELER. Well, the interesting thing is that we actually 

took the language from the current cable card license, which has 

been very successful in protecting copyright. 

Ms. ESHOO. OK. Now, on to the whole issue of minority-focused 

programming. Critics alleged that the FCC’s proposed rule, and 

you know this, would actually limit the availability of minority programming and content. Now, Robert L. Johnson and our members 

have a copy of the letter that I received last night. I think it is an 

important letter to read and I would like to ask for unanimous consent, Mr. Chairman, for Mr. Johnson’s letter to be part of the 

record. 

[The information appears at the conclusion of the hearing.] 

Mr. WALDEN. Without objection. 

Ms. ESHOO. Thank you very much. 

Now, why is this issue even being raised? There is a woeful 

record under what we are operating under now because the cable 

companies have really moved at a glacial pace in their efforts to 

make more minority programming available to consumers. Essentially, there are two or three large cable companies effectively determining today what the American public sees and how they see 

it. 

So, I don’t know why there is a defense of this abysmal record 

when we have an opportunity to open new doors to diverse programming. Do you want to respond to this? 

Mr. WHEELER. Well, thank you, Ms. Eshoo. 

Ms. ESHOO. Or would you respond to this, please? 

54 

Mr. WHEELER. There are four African American-owned channels 

in the 500-channel universe on a cable system. 

Ms. ESHOO. Four out of how many? 

Mr. WHEELER. In a 500-channel universe. And most of them are 

on the most expensive tier, by the way. 

But the interesting thing here is that there are literally hundreds of programmers who are seeking to get on and they are having the door slammed in their face. So the question is how do you 

create equal opportunity so that these programmers can have an 

equality of standing with the few handful that are there and have 

competition and opportunity? 

Mr. WALDEN. The gentlelady’s time has expired. 

Ms. ESHOO. Well, my time has expired. Thank you, Mr. Chairman. 

Mr. WALDEN. Thank you. We will now go to the vice chair of the 

full committee, the gentlelady from Tennessee, Mrs. Blackburn, for 

5 minutes. 

Mrs. BLACKBURN. Thank you, Mr. Chairman. And I wanted to 

first raise an issue involving a consortium of schools in Tennessee, 

USAC has denied millions of dollars in E–Rate funding to the 

Sweetwater Consortium and many rural schools could be detrimentally impacted. And the school districts stand to be financially crippled by the denial and, of course, the education opportunities limited and suffer significantly with such a decision. 

The Sweetwater Consortium just received a final decision from 

USAC on Friday denying their appeal and my office is continuing 

with other offices to gather information from the interested parties 

and we expect that this is going to end up with you all before very 

long. 

And Mr. Chairman, the Tennessee delegation wrote the FCC last 

year and received a response on July 21, 2015. We appreciate that. 

I understand that USAC needs to be a thorough watchdog of the 

taxpayer dollars and that the commission is not yet in a position 

to offer an opinion on the merits of USAC’s review and you have 

noted that in your response to us. However, I am concerned about 

the amount of time that the process has taken and I know Chairman Wheeler, you also expressed that concern in our reply and I 

will just say that we look forward to working with you to find a 

resolution to this. 

Commissioner O’Rielly, I want to thank you for your letter or it 

was your statement of dissent on the choices in the AllVid issue. 

And I agree with you that it is regulation by speculation. 

And Mr. Chairman, you just said you know that hundreds are 

seeking a way to get on, talking about some of the independent 

producers and the content producers that are seeking an avenue 

for the content they produce. And I have to tell you you don’t create 

equal opportunity by not paying people for what they have created. 

And Chairman Pai, coming to you, I will have to tell you, a lot 

of my content producers that are there in Tennessee, they are very 

concerned about the set top box proposal and about honoring copyright. The text of the proposal is something that has caused them 

tremendous concern and they talk about it and they bring it up to 

me. The chairman had said oh, we are going to honor those copyright laws but then they are reading this and they are saying I 

55 

don’t see how this matches because it would mandate that pay TV 

providers transmit to third parties all the programming the pay 

provider’s license, allowing third parties to use that without obtaining the permission of the copyright holders or of compensating 

them. 

And you know one of the concerns is the way the proposal explicitly declines to prohibit third parties from replacing or altering advertising or manipulating the content. 

So, I would like for you to respond to me. Doesn’t the proposal 

exceed the FCC’s authority and create conflicts between commission regulations, and copyright, and contract law? 

Mr. PAI. Congresswoman, I believe it does and your constituents 

are not alone. One of the most notable features of this proceeding 

is that we heard from a variety of minority programmers, networks 

like Ovation, individuals like Eva Longoria, minority advocates like 

MMTC, as well as members of this body, 30 members of the Congressional Black Caucus, for instance, who told us to a person that 

this would compromise the legitimate intellectual property rights of 

content creators and minority content creators, in particular, had 

in their creations. 

Mrs. BLACKBURN. I thank you for that. I would hope that the 

Commission will look very closely at what some of these innovators 

and content creators are pushing forward to the marketplace and 

protecting their copyright laws. 

To do this where you are looking at the set top box proposal that 

is out there, I think is a dangerous step. It diminishes the value 

of content. It diminishes the ability of those who have created this 

to be appropriately paid. It undercuts and undermines contract 

law. And for people who are innovating in this space, as we have 

more delivery avenues that are opening up to us, I think that the 

proposal that is out there is a dangerous proposal when it comes 

to the validity and the value of contracts. 

And I yield back. 

Mr. WALDEN. The gentlelady’s time has expired. 

We will now go to the ranking member of the full committee, Mr. 

Pallone for 5 minutes. 

Mr. PALLONE. Thank you, Mr. Chairman. 

I wanted to start with Commissioner Rosenworcel. I wanted to 

publicly thank you for coming up to my district right before that 

last major snowstorm to discuss the Sandy Act and how to improve 

communications during disasters. 

One idea we had coming out of these discussions is whether we 

could take a city in the area impacted by Sandy, where we could 

work with industry and government officials to develop best practices that could be used across the country. So, I just wanted to ask 

you, do you think that that would be a worthwhile experiment. 

Ms. ROSENWORCEL. Thank you, Congressman Pallone. So, I have 

been in your district just after Hurricane Sandy and now I can say 

I have been there just before Snowstorm Jonas. So, I know that 

Mother Nature’s wrath visits the New Jersey coastline with some 

frequency. 

And I think that developing a smart city that is a resilient city 

on the coast is a terrific idea and my hope is that by preparing for 

56 

the worst, we can take those best practices from New Jersey and 

export them all around the country. 

Mr. PALLONE. Thank you. 

I wanted to ask Commissioner O’Rielly about pirate radio. I 

wanted to personally thank you for leadership in addressing this 

spike in pirate radio stations. And the last time you were here, we 

talked about how this is an important issue. And I was hoping to 

be able to introduce a bill that would put a stop to these illegal signals. 

I know you have a long background in crafting legislation. Do 

you have any suggestions for what to include in a bill like that? 

Mr. O’RIELLY. So, one of the issues that I have been working on 

and the Commission has been gracious and the chairman has been 

gracious in helping me facilitate is getting to some of the money 

side of the equation. How do we dry up money for pirate radio 

broadcasters? And I think that is something where we can focus in 

legislation and we are working with your good staff in trying to 

target how to get at the money part from—we have a number of 

people that are advertising. We have political campaigns that are 

advertising on pirate radio stations. We have concert venues that 

are advertising. We need to figure out how best to go after the 

money side. 

But I want to be careful on that. I want to make sure that it is 

narrowly targeted so that we don’t go after those who are trying 

to a good job that are unfortunately captured in that universe, such 

as building owners and renters. We want to go after those that are 

facilitating, not those that may have provided some—— 

Mr. PALLONE. Thank you. Well, we will work together. 

Mr. O’RIELLY. I would like that. 

Mr. PALLONE. Chairman Wheeler, I released earlier this year a 

discussion draft bill called the Viewer Protection Act, which we 

have discussed that would make sure that consumers keep access 

to the channels that stay on the air after the incentive auction. 

And while I hope this bill will be bipartisan, I have heard from 

some of my colleagues that they want to wait until we know how 

many broadcasters will need to be repacked. 

At the same time, it is critical that the bill is introduced with 

enough time to go through regular order. So, it is really when the 

repacking process begins. 

So, I think it would be helpful for us to all better understand the 

schedule for the auction going forward. Could you walk us through 

your estimate of how the next few months would play out paying 

particular attention to when we would know how many broadcasters will need to be repacked? 

Mr. WHEELER. Thank you, Mr. Pallone. 

As I said in my statement, the reverse auction bidding will start 

in May. Exactly when in May, we don’t know yet. It depends upon 

what we find out when we are sorting through all this data to come 

up with a channel plan. 

How long it lasts after that is a function of the marketplace. If 

I were a betting man, and I have no insight into this because it 

is totally in control of the market, not in control of the Commission, 

but I think we are looking at, if we start in May, sometime late 

summer, early football season that we have a resolution. But again, 

57 

that is something that is out of my control, our control and that 

the market will determine. 

Mr. PALLONE. All right. Well, thank you all. I appreciate your 

input on all these questions. I yield back, Mr. Chairman. 

Mr. WALDEN. The gentleman yields back. The chair now recognizes the gentleman from Texas, the former chairman of the committee, Mr. Barton, for 5 minutes. 

Mr. BARTON. Well, thank you, Mr. Chairman, and I welcome the 

Commission to the Energy and Commerce Committee. 

So far, nobody is asking one question about your budget, which 

is, theoretically, why we are here. And I am going to continue that 

tradition and not ask you any questions about the budget. 

My question, though, is extremely serious, actually. This morning we had three explosions rock Brussels airport and metro station. We think at least 26 people have been killed. There are over 

100 that have been injured. The last time the Commission was before this subcommittee was just after the Paris attack and I asked 

Mr. Wheeler then what the committee could do in conjunction with 

the FCC to try to counter these terrorist attacks in the way that 

they use the internet to broadcast their terrorism. 

Mr. Commissioner, Chairman, you mentioned that maybe the 

Congress needed to update the definition of what a lawful intercept 

is under CALEA. Have you all looked at that since you were before 

the committee? If so, do you have any recommendations for the 

committee? 

And I want to be clear, I am not trying to ask the FCC to shut 

down the Internet but I do think that in an open society you can 

strike a balance between openness and protecting the public good. 

So, I am going to ask the question to the chairman but if the other 

commissioners want to chime in, you are very welcome to. 

Mr. WHEELER. Thank you, Mr. Barton. And yes, this is a tragic 

time and a terribly serious issue. 

The Congress has said to the FCC that our responsibility—and 

I use that word not just our authority—our responsibility is to 

make sure that in the networks that we regulate there is the 

equipment to carry out lawful intercepts. That is the definition that 

Congress has given us and the scope of our authority. 

The question of what is a lawful intercept is something that is 

beyond the statutory authority that you have given us. The discussion that we had last time was to the effect that it is up to Congress to make the determination as to what is the scope of a lawful 

intercept. But I assure you, sir, that we will fully take the steps 

necessary to make sure that the equipment that is required to be 

able to make that lawful intercept is in place. 

Mr. BARTON. ok. Any of the other commissioners want to comment? ok. 

Something a little bit more mundane, this issue of set top boxes, 

which the chairman alluded to and Congresswoman Blackburn alluded to. I am co-chair with the Privacy Caucus here in the House. 

And there is real concern that you are going to make it possible, 

perhaps inadvertently, to allow the collection of large amounts of 

data, perhaps even megadata without the consent or knowledge of 

the customer or of the client. 

58 

Mr. Chairman, you were not real forthcoming to our subcommittee chairman, Mr. Walden. Can you at least acknowledge 

that it is an issue and you have got very cognizant to try to whatever the Commission does, protect the legitimate privacy rights of 

the individual? 

Mr. WHEELER. Without a doubt, Congressman. And let me see if 

I can be specific on this because if you say I wasn’t specific enough. 

Section 631 of the Act establishes privacy expectations on cable 

operators and satellite providers. And they then have that relationship with Roku and TiVo and folks that they are now working with 

to say y in their contracts with them, you will maintain the same 

kind of privacy protections that we do. And what we are saying is 

that any competitive box, set top box or app, has to be able to make 

the same kinds of assurances and that if those assurances are not 

made, that the cable operator then doesn’t have to do business with 

that box and that just like smart TVs and tablets and 

smartphones, all have that same kind of ability to collect information and have the FTC oversight, that if the protections that we 

have put in place are still not sufficient, that the FTC has authority to do something. And as recently as last week, the FTC put out 

a notice to smart TV manufacturers that they intended to. 

Mr. BARTON. ok, my time has expired. Thank you, Mr. Chairman. 

Mr. WALDEN. Thank you, Mr. Barton. 

We will now turn to the gentleman from Pennsylvania, Mr. 

Doyle, for questions. 

Mr. DOYLE. Thank you, Mr. Chairman. Chairman Wheeler, I 

want to thank you for your leadership on special access and for advancing this issue through a very thorny process. It is critical that 

we get this right and it is critical that we get this done. I believe 

your team is working diligently on this proceeding. I would only 

ask that as you work through this issue, you be sensitive to the 

harm that is being done at this moment to competition across the 

country and that as you proceed, you keep in mind that this is an 

ongoing issue that is not only hurting competitors but hurting consumers as well. 

With regards to Lifeline, as you move forward with Lifeline, I 

have asked you to be mindful and ensure that low-income Americans can still use this program with no additional cost. Opening up 

the program to more competition and enabling participants to 

choose how they use their subsidy is great. But I would ask you 

to take particular care to ensure that three options remain available and that enough flexibility exists in the program so that people don’t lose their access to this critical resource. 

With regards to privacy, thank you again for moving forward on 

this issue. I was happy to see the Commission take action in the 

order to prohibit super cookies, as well as the enforcement action 

it took on the same issue. However, I must say I was disappointed 

to not see a prohibition on deep packet inspection or a proposal to 

prohibit companies from manipulating consumers into giving up 

their privacy for a discount on their bills. Privacy shouldn’t be a 

luxury for a few that can afford it. 

So, as you move forward with this proceeding, I would ask the 

Commission ensure that it is not enabling ISPs that charge consumers for their own privacy. 

59 

And finally, on zero rating, I remain concerned about zero rating 

in the marketplace. Studies have shown that consumers, by far, 

prefer zero rated apps and services when faced with the expense 

of busting their data caps. This gives ISPs a natural advantage in 

the marketplace and enables them to choose winners and losers. 

I don’t think that we need a blanket ban on zero rating but when 

ISPs zero rate their own apps and when zero rating programs are 

anti-competitive, consumers are being harmed. So, I would ask, 

Chairman Wheeler, to encourage you to take action to police these 

programs. 

Now, I went through all this quickly to give you some time. You 

and Commissioner Pai, you know Commissioner Pai said quite a 

few things today that I think might have hurt your feelings and I 

wanted to give you an opportunity to maybe comment on your 

stewardship of the commission. 

And also there seems to be a disagreement here on whether or 

not on the issue of set top boxes that copyright is being protected 

and that whether it is true that people can take other people’s content and not pay for it. So, in the remaining 2 minutes and 26 seconds, Mr. Chairman—— 

Mr. WHEELER. That is all I have. 

Mr. DOYLE [continuing]. The floor is yours. 

Mr. WHEELER. Let me see if I can tick through a couple of them. 

Number one, on the copyright issue. You know the interesting 

thing is that there are today the equivalent of competitive set top 

boxes available in the market. For instance, Google Chrome. Now, 

a lot of things that we hear about oh, this is Google’s big plan to 

take over cable TV—malarkey. The Google Chrome, which attaches 

in your port in your TV to allow you to get things off of the web, 

does not violate copyright, does not overlay commercials, does not 

do all of the horrible things that everybody said a set top box like 

that would do because copyright law is sacrosanct. 

The second thing is I think the people would go crazy and revolt 

if something like that happened. So, that is on the copyright issue. 

Secondly, on the process issue, there was an interesting dichotomy of criticism that we have heard this morning. One is that we 

have been operating in a unilateral fashion and not being collegial. 

And the other is that the collegial efforts that we have had to address process that hasn’t resulted in a consensus being built are 

somehow witness of a nefarious intent. I find those two to be in 

conflict. 

And so the other issues you raised, you are absolutely right. Lifeline, we have to make sure that Lifeline is updated and that it is 

available. Have I got time? The key thing here is that digital is 

cheaper than analog voice. You notice that every single consumer 

who signs up to LTE service, which is 80 some percent of Americans get free unlimited voice but if you are a poor person, we are 

limiting what you can do. We are saying you can’t get on the internet. You can’t have access. We are going to stick you in this analog 

world. And that is one of the things that we are going to take on. 

Mr. DOYLE. Thank you, Mr. Chairman. I am glad you feelings 

weren’t hurt. 

Mr. JOHNSON [presiding]. The gentleman’s time has expired. I 

now recognize the gentleman from Ohio, Mr. Latta. 

60 

Mr. LATTA. Thank you very much. And to the Commission, 

thanks very much for being here today. And oddly enough, Commissioner Pai, I am going to be talking to you and asking some 

questions about set top boxes and integration band. It seems like 

something that has been discussed quite a bit this morning. As you 

know, Congressman Green and I were able to secure language in 

stellar to eliminate the integration band in order to rid the marketplace of outdated technology and to foster greater competition innovation. 

The FCC is now contemplating mandates that would leave multichannel video programming distributors no choice but to provide a 

box on top of the third-party device. This would once again bring 

us back to the problems of integration band of higher cost to consumers for devices and higher energy costs for them as well. And 

in this committee room where we were having the Secretary of Energy reports, he even said that about higher energy costs. 

He stated that the FCC should be seeking a boxless solution, 

which I believe is the future of pay TV. Does the apps-based proposal that was put forth through the Downloadable Security Technology Advisory Committee, the DSTAC, get consumers to a 

boxless world? 

I want to ask you also, as you answer that question, what we are 

looking at with the FCC’s proposing, are we going forward, backwards, staying static, and I think what the consumers out there 

want to know is where are we going to be in 10 years, not where 

we were 10 years ago. Commissioner? 

Mr. PAI. Thank you for the question, Congressman. I think the 

best, if I could tackle the second question first, to encapsulate what 

the FCC’s approach has been is back to the future. Instead of moving to an app-based world where consumers can finally free themselves of this expensive clunky equipment that consumes a lot of 

energy and doesn’t provide the functionality they want, the FCC is 

doubling down on 1990s technology. And it is essentially going to 

force MVPDs, cable operators and the like, to do one of two things. 

Number one, either reengineer their entire network or number two, 

supply consumers with a second box. 

Now, I submit to you that the natural effect is going to be the 

second. Reengineering a network is extremely expensive, compared 

to simply supplying a second box. That is not what consumers want 

to do. And so I would have hoped that the agency, going to the first 

question, would have teed up in a full and fair manner the other 

proposal that the Downloadable Security Technology Advisory 

Committee proposed. One, to be clear, was the majority’s approach, 

which was to have this 1990s technology embraced yet again. But 

the other one was an app-based approach. And instead, there is a 

very slanted three-paragraph discussion in this huge document 

asking why the app-based approach would end with the destruction 

of America and other things bad. And I think if we embrace this 

in a full and fair manner, allow the American people to comment, 

we wouldn’t be in the pickle we are in, where the former chairman 

of this committee, Mr. Waxman just yesterday said that this approach is a 20th century solution to a problem the market is already solving on its own. 

Mr. LATTA. Why is that? Why did the FCC do that? 

61 

Mr. PAI. Well, I think frequently, the natural inclination of the 

agency of late has been to solve problems that don’t exist. But secondly, I think that there is a recognition among some people that 

this marketplace hasn’t developed as expected. And I completely 

agree with him. The reason is that this entire marketplace is the 

creation of a 20-year regulatory framework that is highly intrusive. 

And I would humbly submit that technical mandates and agency 

micromanagement is not the way to get us to the next stage of the 

digital video revolution. Instead, we should embrace a more consumer-friendly approach, an apps-based approach, for example, and 

let the marketplace develop. You are free from some of these legacy 

regulations that have simply held us back. 

The set top box is not the way of the future. My kids are not 

going to know what a set top box or some of this other equipment 

is. What they will be familiar with is being able to access the content they want on the device they want using an app or other device that they want. That is the future, not the 1990s. 

Mr. LATTA. Let me follow up, Commissioner. Over the past Congress—I have introduced a bill that required the FCC to conduct 

a cost-benefit analysis at the time of the Notice of Proposed Rulemaking and again at the time that the final rule is issued. I think 

it is important for the public and the Commission to have a better 

understanding of monitor impact of the FCC rules. 

In respect to the proposed set top box rules, I believe it would 

be of great value to identify the cost and benefits this rule would 

have on consumers and MVPDs, especially in small and medium 

sized providers. 

Did the Commission complete a cost-benefit analysis of this rule? 

Mr. PAI. It did not. 

Mr. LATTA. Why not? 

Mr. PAI. I think, frankly, because if you objectively tallied up the 

possible costs and benefits, it would be fairly clear that the Commission’s approach would have yielded, ultimately, disadvantages 

to the consumer at the end of the day. 

Mr. LATTA. Well, thank you very much and, as my time expires, 

I yield back. Thank you very much. 

Mr. JOHNSON. I thank the gentleman for yielding back. I now 

recognize the gentleman from Iowa, Mr. Loesback. 

Mr. LOESBACK. I apologize, Mr. Chair. I was thinking that I was 

not going to go for a little bit yet. 

But thanks to all of you for being here. I really appreciate this 

conversation we are having. I was going to ask about set top boxes 

but I think I am going to forego that one this time. I think it has 

being covered pretty exhaustively. 

I do want to say, Commissioner Pai, I am all for the Jayhawks, 

too because I am an Iowa State alum but, hopefully, the Cyclones 

are going to do well as well. 

Mr. PAI. I didn’t sign on to that, Congressman. 

Mr. LOESBACK. That is ok. It is all right. 

I do speak to former Congressman Jim Wright quite often about 

these issues, as you can imagine. 

But at any rate, and Commissioner Rosenworcel, in particular, I 

know you are all concerned about rural broadband, but thank you 

so much for your tremendous efforts on that front. I look forward 

62 

to seeing you in Iowa at some point down the road as well, when 

we can chat with some of our folks in Iowa who are particularly 

concerned about this. So, thank you. 

What I would like to do is first ask Chairman Wheeler about the 

enhanced transparency issue, having to do with broadband development and small businesses. You have your particular order that 

was out there but then I worked with Chairman Walden and other 

members recently to get a bipartisan bill passed where we have a 

different approach to that in terms of how we define small business 

and extend the period for the exemption, if you will, for these small 

broadband providers. And there is really broad bipartisan support 

to make sure that we provide the necessary regulatory relief to 

these folks so that they really can in fact expand that broadband 

capability to as many folks in these rural areas as possible. 

And we are hopeful that the Senate will take this up and that 

the President would sign whatever legislation comes out of this. 

But if that is not the case, might it be true that the FCC does intend to further exempt small providers from the enhanced transparency rules? 

Mr. WHEELER. Thank you, Congressman. As you know, we have 

exempted them and I recently extended that exemption. There has 

been a lot of talk about the transparency of process and everything 

here. It is inappropriate for me to sit here and say oh, yes, there 

will be an extension or whatever. We will go through the process. 

We will build the appropriate record and act accordingly. 

Mr. LOESBACK. Right. 

Mr. WHEELER. Just like what we have done thus far. 

Mr. LOESBACK. Right, I am recognizing that there is that bipartisan support here to extend it further, if you will. 

Do any of the others here want to comment on that particular 

issue at this point? 

Ms. CLYBURN. On that particular issue, as the chairman alluded 

to, we are going through a Paperwork Reduction Act process, which 

will look at and examine the impact on those particular carriers. 

I think I believe it is 100,000 lines and below. I was pushed for 

them being exempted while we review that and see if the impact 

is in proportion with their capacity. 

Mr. LOESBACK. Thank you. 

And also, Chairman Wheeler, on the incentive auction, Mr. 

Chairman, regarding the upcoming incentive auction itself, I am 

concerned about the impact that the FCC’s repacking plan might 

have on broadcasters and dealers in rural America, as you might 

imagine. 

If the FCC implements a regional repacking plan, will broadcasters in areas like Iowa be repacked last because there is less of 

a spectrum crunch? And if so, can you assure me that broadcasters 

in rural markets will have as much time to transition as broadcasters in areas where there is a spectrum crunch? I am concerned 

that there is a 39-month deadline to transition and whether broadcasters in rural areas may not be able to start right away. Can you 

address that issue? 

Mr. WHEELER. Thank you, Congressman. This one of the reasons 

why we have now, as the chairman indicated, begun the pivot to 

OK, what happens after the auction. Everybody is thinking about 

63 

the bidding. But OK, then you have to implement it. And we are 

putting together a team that will deal with that question. 

One of the proposals on the table right now is some kind of regional repacking plan. We have not yet made a decision on that. 

There are all kinds of extenuating circumstances that exist in various parts of the country. Clearly, it doesn’t make sense to have the 

limited assets of folks who erect antennas racing hither and yon to 

be able to do things. 

Mr. LOESBACK. Right. 

Mr. WHEELER. We have to be able to manage that appropriately 

and to deal with the kinds of issues that you raise. 

I can’t sit here and say, sir, I have got the written out answer 

but I can say, sir, yes, sir, we are on top of that. 

Mr. LOESBACK. Thank you very much. 

Again, you can see the rural theme to my questions here, obviously. But I know that a lot of folks here on this panel and on the 

larger committee have these very same concerns that I have on a 

bipartisan basis. That is why I have raised those issues. 

Thank you, Mr. Chair, I yield back the remainder of my time. 

Mr. JOHNSON. I thank the gentleman for yielding back. The chair 

now recognizes the gentleman from Illinois, Mr. Shimkus. 

Mr. SHIMKUS. Thank you, Mr. Chairman. It has been a good 

hearing. I think we have talked about a broad-range of different 

issues that you all are dealing with. 

I have two, one has already been asked. So, that will save me 

a little bit of time. In the country right now, there is a revolt brewing in the country. And I attribute it to a couple of things. One 

thing I attribute it to is an understanding of the legislative activities of passing of bills and then the bill being signed into law, also 

understanding that the Executive Branch is defined by the constitution to enforce those laws. 

So, when we see duly passed statutes in a law and then an agency disregard that, that is kind of leading to this revolt and this 

frustration out there. And I can say I mean I just came through 

a primary and so I was with the public 24/7 for 2 months and it 

is visceral and it is real. 

So, Commissioner Pai, I want to ask this question first because 

this is an example. I think it spreads across the agencies, not just 

here. 

So, we passed a bill signed into law on joint service agreements 

that then delayed that for 10 years. It wasn’t ambiguous. There 

weren’t exceptions included. It just said all JSAs. Of course I think 

you were surprised. I was shocked to see that last month that the 

chairman’s office forcing parties to eliminate JSAs through merger 

review. 

How is this not an example of this frustration out in America of 

an agency disregarding the clear statute of law and congressional 

intent? And could you comment on that? 

Mr. PAI. Thank you for the question, Congressman. I think, unfortunately, is that a paradigmatic example of the agency’s disrespect for the rule of law, it is pretty rare that this body, as you 

know all too well, reaches overwhelming bipartisan agreement on 

anything. But in December of 2015, with a unified voice, both 

houses of Congress and the President instructed the agency to 

64 

grandfather existing joint sales agreements between certain broadcast TV stations. The agency simply thumbed its nose at that statutory command and ordered the unwinding of certain joint sales 

agreements, including one joint sales agreement by Entravision in 

my home state of Kansas, which provides the only Spanish language news in the state. 

That is remarkable for two reasons. Number one, it is obviously 

diverse programming that I and my fellow Kansans could benefit 

from. But secondly, it also contradicts an express commitment to 

the Congress of FCC leadership last year that there is quote nothing in what we are doing that would make that, the Entravision 

JSA, go away. Now, that was simply flouted. And I think it is telling that a couple of weeks ago, a bipartisan group of 12 senators, 

led by Senator Roy Blunt, Senator Dick Durbin, including Senators 

Tim Scott, Charles Schumer and others told the agency that it was 

quote bypassing congressional will and ignoring bipartisan concerns by forging ahead with this path. 

And so if the agency can’t be constrained by law, then it is pretty 

much just the caprice of one individual, a majority of commissioners at any given point in time. And that is not how I think the 

agency should operate under any leadership—— 

Mr. SHIMKUS. Commissioner O’Rielly? 

Mr. O’RIELLY. I agree with my colleague on both the content and 

the point he is making and the point you made. 

And I take it to another example. And I know we have talked 

about set top boxes in a number of different questions. But if you 

look at the statute, the Commission is taking this beyond the 

equipment itself and taking it to applications. And the statute says 

converter boxes, interactive communications equipment, and other 

equipment. And yet we are taking it to applications. And first we 

take equipment and interpret it to be software and then software 

goes to applications. So, applications have nothing to do with the 

set top boxes as they operate today would be covered by our rules. 

Mr. SHIMKUS. And I just want to end on this. Because this kind 

of also talks about this aspect. I am very concerned about the FCC 

process debate and the opening statements on that because maybe 

some of these things that have occurred, had there been an open 

process—you know what? I would call on the commissioners to 

enact civil disobedience and disregard the chairman’s edict. And if 

the chairman can speak to people anyplace, anytime on something 

coming down, I would challenge you. I did some research. No one 

has done that yet. But by golly, if there is ever a time to fight for 

transparency in the rule of law, it is now. It is in this environment. 

And I would encourage you to do that. 

And I yield back my time. 

Mr. JOHNSON. I thank the gentleman for yielding back. I now 

recognize the gentlelady from Colorado, Ms. DeGette. 

Ms. DEGETTE. Thank you so much. 

As a former constitutional lawyer, I was really quite dismayed to 

hear Commissioner’s Pai’s testimony about that the commissioners 

are prohibited from commenting on future rules. And Chairman 

Wheeler, someone asked you that question. I didn’t quite get the 

answer. So, I am going to ask you a series of questions and I would 

like you help me clarify this. 

65 

Under the current rules of the FCC, commissioners are prohibited from releasing the language of pending rules until they are 

voted on in the proceedings. Is that right? 

Mr. WHEELER. Yes, ma’am, for the final rule but under NPRM, 

one of the things we have done, during my administration is put 

out the draft language. 

Ms. DEGETTE. So, you put out draft language. Is that correct? 

Mr. WHEELER. The Notice of Proposed Rulemakings that we vote 

on always include in them a rebuttable presumption here is what 

we are proposing in terms of specific language. 

Ms. DEGETTE. OK, stop. 

Mr. WHEELER. So, we could have the kind of debate we had 

today. 

Ms. DEGETTE. Stop. Stop. 

Mr. WHEELER. Yes. 

Ms. DEGETTE. Now, so you do put out proposed language—— 

Mr. WHEELER. Yes, ma’am. 

Ms. DEGETTE [continuing]. in the Notice of Proposed Rulemaking. Then you debate on it and you vote on it. 

Mr. WHEELER. Yes, ma’am. 

Ms. DEGETTE. And then the rule is released, right? 

Mr. WHEELER. Yes, ma’am. 

Ms. DEGETTE. Now, do you have a prohibition on commissioners 

talking about the proposed rules in advance of the vote? Yes or no 

will work. 

Mr. WHEELER. No. 

Ms. DEGETTE. Thank you. 

Mr. WHEELER. Because—and we have these discussions, speeches, blogs. As a person who has spent 30 years practicing before the 

Commission, I can assure you that throughout history there has 

been an ongoing dialog where commissioners have been speaking 

out, speaking publicly, talking to the various parties. 

Ms. DEGETTE. So, under your leadership, what you are saying is 

that when there is a proposed rulemaking, commissioners are allowed to exercise their first amendment rights and speak about the 

pending proceedings. Correct? 

Mr. WHEELER. What I am saying is that nothing has changed. 

Ms. DEGETTE. Can you just answer my question? 

Mr. WHEELER. I am sorry. Would you please—— 

Mr. LOESBACK. Yes. Are commissioners allowed to speak publicly 

about proposed rulemakings? 

Mr. WHEELER. They are allowed to speak about the substance of 

the rulemaking. 

Ms. DEGETTE. Right. 

Mr. WHEELER. The rule that they keep citing goes to can they 

take the specific language and circulate it. 

Ms. DEGETTE. Right. See, that is what I am trying to help you 

get out. 

Mr. WHEELER. OK. 

Ms. DEGETTE. So, they can talk about the proposed rulemaking. 

Mr. WHEELER. Yes, ma’am. 

Ms. DEGETTE. But they are not allowed to release the underlying 

language while it is still under consideration. Is that correct? 

66 

Mr. WHEELER. Other than the Notice of Proposed Rulemaking, 

where it is—— 

Ms. DEGETTE. And what is the rationale for doing that? 

Mr. WHEELER. It has always been that way, ma’am. 

Ms. DEGETTE. And what is the rationale? 

Mr. WHEELER. I believe the rationale is in order to facilitate deliberation amongst the commissioners. 

Ms. DEGETTE. Great, thank you. That is all I was trying to ask 

you. 

Now, Commissioner Clyburn, in your written testimony, you 

mentioned interest in how the broadband can play a role in 

healthcare outcomes. And as you might know, Chairman Upton 

and I and the whole rest of the Energy and Commerce Committee 

are working on 21st Century Cures. A lot of this bill relies on expansion of the ability to collect data and then to aggregate that 

data in clinical trials. And so I just wanted to let you know that 

I think what you are talking about is really important and I think 

we need to be working together to make sure that we can get these 

benefits all around the country because part of the whole process 

with this big data and healthcare research is to get a much bigger 

diversity both geographically and ethnically of people who are involved in clinical trials. 

So, I would like to be able to work with you going forward to 

making sure that we can achieve these ends. 

Ms. CLYBURN. Absolutely. We have a Connect2Health Task Force 

and we look forward to working with your office to realize the potential that health and technology, that marriage, would bring. 

Ms. DEGETTE. Thanks. So, you know I have got a few seconds 

left. Let me just go back to what I was talking to Chairman Wheeler about because what I was trying to get out of him is this. Once 

it was explained to me, I can see a real reason why you would want 

the proposed actual language of the proposed rules to be handled 

through the chairman’s office. And you would want to have people 

be able to talk internally about that and you wouldn’t want people 

just releasing bits and pieces of that language. 

So, I agree with that but I also think it is important that the 

commissioners can exercise their first amendment rights without 

releasing that language. And I think that is what is happening 

now. So, I think we just need to everybody take a deep breath and 

step back and try to have a little bit more comity on the whole 

commission. 

Thank you. I yield back. 

Mr. JOHNSON. I thank the gentlewoman for yielding back. I now 

recognize Mr. Lance from New Jersey. 

Mr. LANCE. Thank you. 

And I also practiced constitutional law in New Jersey. And so I 

would like to ask Commissioner Pai and Commissioner O’Rielly to 

comment on the colloquy between my colleague, Congresswoman 

DeGette and the chairman. 

Mr. PAI. Thanks for the opportunity, Congressman. 

It is flatly not true that commissioners have full and fair latitude 

to discuss what is in a commission proposal or a commission order. 

Right now, I cannot hand you this document, which is the Commission’s Notice of Proposed Rulemaking on privacy. I cannot quote 

67 

you anything in this document in the Commission’s Notice of Proposed Rulemaking. 

Mr. LANCE. And if you were to do that, would you be subjected 

to some sort of legal action? 

Mr. PAI. Absolutely. There are sanctions that are unspecified in 

our rules but I have no doubt that I wouldn’t be given the benefit 

of the Rule of Lenity when it comes to enforcing it. 

Mr. LANCE. Commissioner O’Rielly, this, to me, is as clear as 

mud. 

Mr. O’RIELLY. So, I agree to the point that you may be concerned 

about the specific language being shared but even the ideas themselves. Nonpublic information is the term used in the rule. So, anything that is nonpublic. So, if there is an idea in here—— 

Mr. LANCE. Presumably, that is nonpublic. I do not know what 

is in that document of 15 or 20 or 30 pages. And there is no way 

I, in the branch of government that is mentioned in Article I of the 

Constitution, I am not privy to that. Is that accurate? 

Mr. O’RIELLY. That is accurate. 

Mr. LANCE. Commissioner Pai? 

Mr. PAI. Well one thing is that the rationale for keeping all of 

this secret is completely baseless. I mean there is no reason why 

we couldn’t have deliberations while still having transparency. 

And first of all we don’t have internal deliberations now on any 

item of significance. So, the suggestion is simply inaccurate. But 

even beyond that, there is no reason why if you propose a bill, Congresswoman, and it goes on the Web site, there is no reason why 

you and Congressman Lance can’t sit down and hammer out agreements and have deliberations in a full and fair way. 

And the agency is no different. The American public deserves to 

know what we are going to do before we propose to do it and I don’t 

think that is too much to ask. 

Mr. LANCE. And if you were to release only a portion of it and 

if you were to mischaracterize a portion of it, undoubtedly, another 

member of the commission would say no, this is the full and fair 

interpretation of the larger document. And this happens in the 

branch of government in which we are involved and I would hope 

in the executive branch as well. 

So, if for some reason you were to mischaracterize or not fully 

disclose the entire intent of the document under the marketplace 

of ideas, wouldn’t that be corrected by another member of the Commission? Commissioner Pai, Commissioner O’Rielly, please. 

Mr. O’RIELLY. Absolutely right. So, I agree with your analysis 

and it could be corrected by—but it actually happens today under 

the current structure because the fact sheets that are being put out 

and are inaccurate and I don’t have the right under our rules to 

correct them. 

Mr. LANCE. And you characterize them as inaccurate and that 

may be true, that may not be true. I tend to think it is true. But 

regardless of whether it is true or not, what would be wrong with 

a full discussion? 

Mr. O’RIELLY. I would be fully comfortable releasing information 

so we could make a judgment whether my analysis is right or 

wrong. 

Mr. LANCE. Commissioner Pai? 

68 

Mr. PAI. Nothing would be better than to avoid all this he said/ 

she said disputes by releasing the document. That way, there is no 

debate about context. Everybody can see for himself or herself. 

Mr. LANCE. And whether or not this has been the situation over 

the years regarding the commission, do you believe, gentlemen that 

it would be better moving forward if this were to change and place 

it in the subjunctive voice, if this were to change? And why do you 

think it should change? 

Mr. PAI. Whoever is leading the agency, Republican or Democrat, 

I would hope that they would embrace the same spirit of transparency that the Congress has, in terms of making things public 

before they are voted upon. 

Mr. LANCE. Commissioner Rosenworcel, your comments on the 

discussion I have had with your colleagues? 

Ms. ROSENWORCEL. Well, thank you. I have not found that our 

existing policies get in the way of me having substantive conversations with stakeholders of every stripe. 

I am a little bit confused by the difficulties that my colleagues 

are having. I know that they, too, held regular meetings with public interest authorities, industry, and have general discussions 

about the matters before us. I am sure that every one of us here 

uses those discussions to inform our deliberations and our decisionmaking and voting. 

Mr. LANCE. In your opinion, do you and I have a right to go back 

and forth in the document that Commissioner Pai has at his desk? 

Ms. ROSENWORCEL. I believe we have the right to go back and 

forth and discuss any matter that is before the agency. 

Mr. LANCE. I don’t know what is contained in that document. Are 

you able to release to me what is contained in that document? 

Ms. ROSENWORCEL. I don’t believe we are. 

Mr. LANCE. And why is that, Commissioner? 

Ms. ROSENWORCEL. I believe that is under our Commission’s 

rules right now. 

Mr. LANCE. Well, I understand what the rules are. I am questioning the rules. I obviously understand what the rules are. The 

rules may say that this room is painted pink. It is actually painted 

green. I understand what the rules are. Do you agree with the 

rules? 

Ms. ROSENWORCEL. I think that we can do more so that our discussions are transparent but I also think it is essential that we 

preserve the right to have deliberations among the five of us and 

actually review the text and discuss the text among all of us. 

So, I think we should strive to be more transparent but I think 

we have to preserve some space for honest deliberation. 

Mr. LANCE. I think it is essential to the American people that 

we, in the first branch of government, under Article I, have the 

ability to review what is contained in that document. 

Thank you, Mr. Chairman. 

Mr. JOHNSON. I thank the gentleman for yielding back. And now 

the chair recognizes the gentlelady from California, Mr. Matsui. 

Ms. MATSUI. Thank you, Mr. Chairman. And I am not a constitutional lawyer so I cannot provide any more clarity to this but I appreciate the discussion and Commissioner Rosenworcel’s response. 

69 

We need to talk something I am passionate about and that is 

Lifeline. Access to broadband is absolutely essential for participation in the 21st century economy. We all know this that affordability has been a major obstacle for the Americans that live on the 

wrong side of the digital divide. We all know that broadband is not 

a luxury but an absolute necessity. And as Commissioner 

Rosenworcel always says, for parents helping kids with their homework, and for businesses in all our communities, and for every 

American to succeed. 

I am thrilled that the FCC is finally modernizing their Lifeline 

program into the 21st century. It has been something I have been 

calling for since 2009, when I introduced I believe the first legislation to expand Lifeline to broadband. 

Now, as we do so, I hope the FCC makes sure that these changes 

are beneficial to the low-income consumers the program is designed 

to help, and I believe others have brought up this concern, and 

does not harm the vulnerable consumers in the Lifeline program 

today. 

What I have heard are concerns about the FCC’s proposed 

changes to support for mobile voice service. And as we expand Lifeline to broadband, we can’t forget that low-income consumers still 

need to be able to make voice calls, especially 911 in the event of 

an emergency. 

Chairman Wheeler, quickly, can you explain the proposed 

changes you are making to Lifeline support for mobile voice services? 

Mr. WHEELER. Thank you, Congresswoman. The goal is to create 

a glide path, a phase-in where over the next 3 1⁄2 years, we are 

moving from an all-analog Lifeline service to a digital Lifeline service, where we can take advantage of the fact that a digital voice 

minute costs less than an analog voice minute and by the sheer 

fact that we are now delivering things digitally, give those using 

their phone, in your example, access to the internet as well. 

So, let me give you a specific example. We are talking about 2 

gigabits of data being the minimum threshold in 2018, as we phase 

in. Two gigabits of data for the existing price would be giving the 

consumer access to 1700 web pages and 900 minutes of voice talk. 

Fifty percent of the existing Lifeline users use less than 100 minutes. Two-thirds use less than 200 minutes. So, what we are talking about here is a quantum leap in the ability to have access to 

minutes and this incredible ability to access the internet. 

Ms. MATSUI. OK. Commissioner Clyburn, do you think that you 

struck the right bands here? 

Ms. CLYBURN. We are still deliberating. We are listening to parties and winding up our ex parte process. When I started on this, 

it was a process that a lot of people did not want to take this particular journey. 

Ms. MATSUI. Right. 

Ms. CLYBURN. We are on the cusp of making a tremendous 

change for those 39 million households that are eligible. And I am 

looking forward to continuing working with you to make sure that 

this program is one that we can all be proud of. 

70 

Ms. MATSUI. OK, thank you. I often speak about the need for 

global access to spectrum to fuel our wireless economy. Spectrum 

is the invisible infrastructure that powers mobile networks. 

As we look ahead to 5G, networks will be transporting more data 

than ever before. But wireless services also rely on wires, which is 

one of the reasons I care about special access reform. 

Commissioner Rosenworcel, do you agree that we need a competitive special access market so that the United States can continue 

to lead the world in 5G? 

Ms. ROSENWORCEL. Thank you for the question. Yes, I do and I 

agree with your assessment that while wireless networks require 

wired infrastructure as well. 

Ms. MATSUI. OK, thank you and I yield back. 

Ms. ESHOO. Will the gentlelady yield her remaining time to me? 

Ms. MATSUI. So, if I may, yes, I yield. 

Ms. ESHOO. Thank you. There was something that was said earlier from the panel about in search of a problem that doesn’t have 

a solution or we don’t need one et cetera, et cetera, relative to set 

top boxes. 

And I just want to put this on the record. Since the Telecommunications Act opened everything up to competition, including 

set top boxes, the price of everything else has gone down 90 percent. The increase of fees for set top boxes has increased by 185 

percent and it is consumers that are picking up the tab. And it is, 

essentially, a monopoly. It is essentially a monopoly. 

In my district, talk about boxes, they say think outside the box, 

we don’t have any boxes. I think it is about time that in the 21st 

century that we really open up set top boxes because—— 

Mr. JOHNSON. The gentlelady’s time has expired. 

Ms. ESHOO. Thank you. 

Mr. JOHNSON. The chair now recognizes the gentleman from 

Texas, Mr. Olson. 

Mr. OLSON. I thank the chair and welcome to our FCC commissioners. Happy Birthday, Commissioner Clyburn. 

Ms. CLYBURN. Thank you. 

Mr. OLSON. Commissioner Rosenworcel, did you have a chance to 

go by the County Line Barbeque at South by Southwest out there 

on 2222? 

Ms. ROSENWORCEL. No, I went to Salt Lick. 

Mr. OLSON. You have to come back. 

And Commissioner Pai, you brought up the NCAA March Madness. And our chairman did as well. I am a proud Texan, guys. I 

have to tell you, the Aggies from College Station, Texas A&M University had the greatest comeback ever in college basketball. Down 

12 with 39 seconds left, double overtime, we are moving on. So, we 

will play Kansas maybe in Houston for the final four. 

My first question is about privacy for you Commissioner Pai and 

Commissioner O’Rielly. The purpose of the NPRM is to get input 

from the stakeholders before drafting and passing a rule—input before. There are no conclusions. But the Texans I work for back 

home say this privacy initiative of this proposed rule is full of conclusions. They say that is putting the cart before the horse. 

So my question is, are there tentative conclusions in this NPRM 

for privacy? 

71 

Mr. PAI. There are, Congressman. 

Mr. OLSON. Mr. O’Rielly, are there conclusions? 

Mr. O’RIELLY. Yes, there are. 

Mr. OLSON. There are conclusions. Is there a record to base these 

conclusions upon, something like an NOI, a Notice of Intent that 

was passed this year? Is there some NOI out there to base these 

conclusions upon? 

Mr. PAI. There is not. 

Mr. OLSON. And what they are based upon, any clue? I can tell 

the people back home yes, they are there, they got there why? 

Mr. PAI. I can’t tell you the motivation for any particular conclusion. But with the entire reason for this enterprise, it is important 

to remember that the FCC disrupted the work that the FTC had 

done. The FTC had regulated this entire ecosystem consistently for 

the past decade. Now, having disrupted that with the net neutrality order last year, it is incumbent now upon the FCC to formulate what the privacy rules will be in the internet service provider 

space. 

Mr. O’RIELLY. So to your point in terms of the cart before the 

horse, here is a quote from an FCC staffer working on the issues. 

He said in terms of precise information about how information is 

being used right now, I don’t know that we have that. They don’t 

know what is being used by the ISPs today but we have a solution 

in the proposals. 

Mr. OLSON. The people back home say that does not add up. 

Well, I won’t say what they will say back home. But one final question. 

Has the Commission caught itself in a corner where to undo 

these rules, these new mandates, is that going to be really hard to 

do when this rule comes out? Can we stop this or is it pretty much 

the train has left the station? 

Mr. PAI. I think, unfortunately, Congressman, the Commission is 

proposing to leave the station in a certain direction and notwithstanding what the American people might tell us after this document finally becomes public, the Agency’s direction, as you will see 

is pretty clear. 

Mr. OLSON. Mr. O’Rielly, any comments on that, sir? 

Mr. O’RIELLY. I agree that it would be challenged. I suspect it 

will be challenged in court. And we will see if they survive that. 

And barring a change in direction of the Commission, I think 

they—— 

Mr. OLSON. The people back home are so tired of having to go 

to courts to get the rules enforced the way they are written. They 

just say they are sick and tired of going to courts. 

I want to switch gears and talk about the upcoming spectrum option in rural Texas. It is 1 week away. Now, I am talking about 

this issue a lot back home with the Texas Association of Broadcasters, the TAB, and they are worried about losing parts of their 

spectrum, the spectrum not being compensated. The towers might 

have to be moved and that cost a lot of money. And the FCC has 

not given any assurance that they will be fully reimbursed, especially in rural areas. 

The example they gave me was Amarillo, Texas, a decent size 

town, about 2,000 people in the panhandle. They have nine TV staVerDate Nov 24 2008 15:51 Feb 27, 2017 Jkt 037690 PO 00000 Frm 00077 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 114\114-129 CHRIS
72 

tions there, four Spanish language stations, four. They came here 

to D.C., met with the FCC and their concerns were basically dismissed. They said don’t worry; it will be taken care of; all will be 

fine. And if it is not fine, we have got your back. That was not reassuring. 

Does the FCC have enough funds to cover rural TV stations if 

they have to build a new tower or lose their spectrum? Is there 

money out there to do that or is that just a wish and a prayer? 

Mr. O’RIELLY. Well, I will answer it this way. I don’t know the 

answer to that and part of it is because we have a variable band 

plan. So, we don’t know how much spectrum we are actually selling. We are going to let the market decide some of those things 

through the good legislation you do. 

So, we don’t know how many people are going to be displaced. 

And so some of that will require a little bit of time to figure out. 

What I have said, that I would be the first one here if the 1.75 is 

not sufficient to advocate that Congress reconsider this number. 

Mr. OLSON. Thank you. Mr. Pai, anything to add about that, sir? 

Mr. PAI. I would agree with Commissioner O’Rielly and I would 

just add that that is one of the reasons why I have consistently 

said that we should have treated the $1.75 billion as a budget, 

rather than a soft suggestion. 

Mr. OLSON. Thank you. I am out of time. On behalf of the Aggies, 

whoop. 

Mr. JOHNSON. The gentleman yields back with a whoop. And 

with that, I recognize the gentleman from Kentucky, Mr. Yarmuth. 

Mr. YARMUTH. Thank you, Mr. Chairman. Thanks to all of you 

for being here today and for doing what you are doing to ensure 

that there is access to broadband throughout our country so that 

everyone can participate in 21st century economy. 

Come November, it is estimated by some that there will have then spent somewhere in the neighborhood of $10 billion on political advertising in this cycle. A lot of that is going to be spent by 

entities, candidates, and party organizations that are required by 

law to disclose their donors. But a significant portion of it would 

be spent by front groups that are under no requirement to disclose 

their donors. That is why Ms. Eshoo and I and 168 of our colleagues wrote to Chairman Wheeler asking the Commission to use 

its authority under Section 317 to require the disclosure of donors 

for all of these front ads, front organization ads. 

And we wrote in January. I received this response during March 

10th from the chairman and it is basically a thank you for writing 

response, something I don’t think that you would believe that we 

would be satisfied with. And while I don’t think that necessarily we 

expected you to say OK, we will do that right away, I certainly expected more than this. And what particularly disturbs me is that 

when we talked about the basis for the Commission’s refusal to do 

it is based on their definition of editorial—using the standard of 

editorial control, based on a 1979 interpretation by staff as to what 

the standard for be to determine what a sponsoring organization is. 

And you mentioned that in January proceedings that you expanded the requirements to cable companies and satellite providers 

and so forth as if that would be satisfactory to us. Personally, I 

think that really is a further institutionalization of the deception 

73 

of American public because this standard of editorial control is absolutely the most useless standard for the American people in trying to decide or trying to determine the credibility of political advertising. 

I spent most of my career in media prior to coming to Congress 

and I have a little bit of an idea what editorial control is. And in 

these situations, these groups, Americans for Puppies and Kittens 

or Americans for a Brighter Tomorrow, they don’t have editorial 

control. They may be crafting a message but they don’t have control of that message. 

So, if you could imagine, the American Petroleum Institute, they 

want to form one of these front groups and fund it. Can you imagine what would happen if they organization that they funded, 

America for a Brighter Tomorrow, ran ads saying we need to do 

away with burning all fossil fuels? Those ads wouldn’t stay up very 

long. They don’t have control. They are doing what their funders 

want them to do. And that is why this is such a deceit that has 

been fostered on the American people. They don’t have any idea 

who is saying that puppies and kittens are great. 

And until we get this kind of disclosure, billions and billions of 

dollars will be spent to deliberately deceive American voters. And 

I don’t understand why the Commission would not at least enter 

into a review of the standard you are using, to determine what is 

the most beneficial standard for deciding what is a true sponsor. 

A sponsor is who pays for it. And in this situation, those entities 

that are paying for it are not willing to be public, which is why 

they are using the facades that they are using. 

So, in terms of the public interest, in terms of a vital and open 

democracy and a transparent democracy, I would request, first of 

all, I would reassert our request to take action. But short of that, 

I would hope that maybe we could meet with Commission staff to 

talk about this whole notion of editorial content and exactly what 

their perception is—I mean of editorial control and see exactly 

what their perception of editorial control is. Because as a former 

editor, I know who has control of the editorial process and I know 

who has control of the advertising process. And this would be like 

Coca-Cola saying we are wanting an ad, put a soft drink ad and 

you said OK, well you have to say paid for by Ogilvy and Mather 

or Leo Burnett, or one of the advertising agencies, instead of CocaCola. 

So, hopefully, we can see this decision and work with us to do 

something that is more sensible. I yield back. 

Mr. JOHNSON. I thank the gentleman for yielding back. The chair 

now recognizes the gentleman from Illinois, Mr. Kinzinger. 

Mr. KINZINGER. Thank you, Chairman. And thank you all for 

being here. I know it is like Christmas Day for you when you get 

to come before us. So, I appreciate having you. Thanks for your 

service. 

Mr. Chairman, Chairman Wheeler, we have had conversations in 

the past regarding the rate regulation bill that I introduced last 

year. And at the time of our initial conversation, there was a lot 

of concern regarding the authority your commission possesses but 

chooses to forbear for the most part in regards to rate regulation. 

And I appreciate the forbearance of that. I want to make that clear. 

74 

During that conversation, we talked about putting into statutory 

law a phrase that would ensure yours and future commissions do 

not have the ability to set out retail rates on broadband internet, 

which I think is an important role for Congress to play, to have a 

voice. But now since the time of our original conversation, you, 

along with many of our colleagues on this committee have said that 

the bill I introduced is far greater than what it seems and that it 

could end the ability of the FCC to regulate a plethora of other activities that were not in the bill. And I understand those concerns 

and I am willing to work with anyone that is willing to work with 

me to ensure that the intent of the bill is moved forward in a reasonable manner. 

Following a number of conversations and negotiations with members on both sides of the aisle, you passed what I think was an excellent amendment to the bill being a recent markup to ensure that 

a number of issues brought forward by our colleagues and yourself 

were specifically exempted from adding or detracting from the current FCC authority. 

Now, not more than a few hours after we passed that bill out of 

committee, you were in front another committee in Congress where 

the same issues was brought forward. In that hearing, I have the 

transcripts actually, you again stated that we will not regulate 

broadband rates. Again, I appreciate that. And you then said that 

you would be willing to offer your assistance to Representative 

Crenshaw in developing legislative language on this topic. More 

specifically, you agreed to provide them with language and assistance within a couple of weeks from the date of that hearing, which 

was March 15th. Would you be willing to provide that language to 

our committee when it is completed, which will be around March 

29th? 

Mr. WHEELER. Yes, sir. 

Mr. KINZINGER. OK. I also want to clear something up. In a recent markup on H.R. 2666, a letter from you was entered into the 

record in which you go to great length to explain why my bill is 

inconsistent with your comments before a Senate Appropriations 

committee. Given that I read you the text of the bill before it was 

originally introduced and you stated that this is what we are trying 

to accomplish, I am a bit confused by your letter. So, I just want 

to clear something up. 

This is just yes or no. Do you believe that the FCC should have 

the authority to regulate rates after the fact through enforcement? 

Mr. WHEELER. Yes, sir. 

Mr. KINZINGER. OK. 

Mr. WHEELER. What I was talking about was the question of deforbearing. 

Mr. KINZINGER. OK. 

Mr. WHEELER. And I believe that in the Open Internet rule, as 

we did, we should forbear from rate regulation. 

Mr. KINZINGER. But you believe that you should have the authority to regulate rates. Even though you choose not to at this time, 

the Commission should have that authority to be able to regulate 

broadband rates. 

Mr. WHEELER. Yes, sir. 

Mr. KINZINGER. That is kind of inconsistent—— 

75 

Mr. WHEELER. It is because here is what is the concept. So, for 

instance, Chairman Walden’s amendment that you just referenced 

here, the amendment to your original idea, when she said hey, this 

will not have any impact on paid prioritization because obviously, 

if something is paid, there is a rate being charged. 

Mr. KINZINGER. Well, sir, and I appreciate it. I am willing to 

work with you but what I am kind of confused about is you went 

from saying hey, we are going to forbear it, we have no intention 

of regulating rates on the internet. And I liked the concept of what 

your bill is, even if you don’t like the details. We are willing to 

work with you on the details but you are saying that you actually 

disagree that you actually should have the ability to regulate 

broadband rates. 

Mr. WHEELER. That is what I am trying to address, the issue of 

rates. So, for instance, as Chairman Walden’s amendment said, 

well, paid prioritization could be a rate. That is not what we are 

talking about. Throttling could be rates and we have all agreed we 

don’t want to do throttling. Because how do you throttle? There is 

a rate you are paying. You are delivering less than the service that 

you say that you are going to offer. Therefore, there is a rate impact—— 

Mr. KINZINGER. And I understand. Even though there is a lot of 

details but we went from you saying I agree we should not be able 

to regulate broadband rates to now saying we should regulate 

broadband rates but I will forbear it for this moment. There is details and that is my point is we are willing to work with you on 

a lot of these details. 

Mr. WHEELER. Yes, sir. 

Mr. KINZINGER. And we are happy to do it with the other side 

of the aisle, with you all and I think that is important but maybe 

we made a little headlines. 

To Commissioner Pai, do you believe that the Open Internet 

order leaves open the ability of the FCC to regulate rates in any 

fashion after the fact and do you believe that Congress should act? 

Mr. PAI. Yes and yes. And I think the chairman’s commitment 

should be taken at its word that rate regulation is, indeed, on the 

table. And it shouldn’t be that big of a leap if the President has 

said when he instructed the FCC to adopt Title II, I don’t want the 

FCC to regulate broadband internet access rates. If the chairman 

says I don’t want to regulate broadband internet access rates and 

I don’t have a problem with Congress codifying that, there should 

not be an objection when Congress actually tries to codify that commitment. 

Mr. KINZINGER. That is right. And that is the role of Congress 

is to make these laws to make these things that we want our folks 

to live by or not live by and I guess I am confused but unfortunately, I am out of time. 

So, thank you all. Thanks for being here. 

Mr. WHEELER. Thank you. 

Mr. JOHNSON. I thank the gentleman for yielding back and I recognize now Ms. Clarke from New York. 

Ms. CLARKE. I thank you, Mr. Chairman and I thank our ranking 

member. Good afternoon, Chairman Wheeler, and to the entire 

panel of commissioners seated before us today. 

76 

My time is short so I want to get right to my question. Mr. 

Chairman, as you know some of my colleagues in the Congressional 

Black Caucus, the Congressional Hispanic Caucus and I have expressed our concerns about the potential irreparable harm the set 

top box proposal could have on small minority programmers, content providers, and broadcasters. This concern was also expressed 

recently by Adonis Hoffman, a former chief of staff to a Democratic 

FCC commissioner, ‘‘If the FCC adopts the Wheeler proposal in a 

final order later this year, it will embed a regime that creates 

more, not fewer hurdles for smaller players, new entrants, and minority content providers to pierce the Silicon curtain.’’ 

Mr. Chairman, you continue to have said that you don’t believe 

that this disruption will harm or limit minority and independent 

programming. So, has the FCC gathered evidence to this effect? 

Has a disparity study been conducted to surface the unintended 

consequences of this proposal for programmers whose viability is 

not only driven by increased viewership but also proven business 

models? 

Mr. WHEELER. Thank you, Congresswoman. The entire NPRM is 

designed to elicit this kind of information and then to collect that 

information in the first round and then to have a rebuttal to that 

information or adding—— 

Ms. CLARKE. OK, so there has been no study. No. OK. 

Mr. WHEELER. No, what I am saying is that is the process. We 

are collecting that right now. 

Ms. CLARKE. OK. So, I have asked the Congressional Research 

Service to perform a study on the impact of the set top box proposal on small and minority programmers and content providers 

and broadcasters. I consider this a reasonable request. Would you 

consider delaying the rulemaking until the report is completed and 

to work with the committee to address any concerns that may be 

raised by a report? 

Mr. WHEELER. Well, we would look forward to working with you 

and the committee on any issues that are raised in this, as you and 

I have discussed previously on this. 

Ms. CLARKE. So you would consider a delay? 

Mr. WHEELER. I don’t know how long the delay would be, ma’am. 

Ms. CLARKE. OK, we can talk about that. 

Mr. WHEELER. Yes. 

Ms. CLARKE. Commissioner Clyburn, I want to commend and 

congratulate you on all your efforts on inmate calling services. It 

has meant so much to so many families across our nation and I 

know it will happen. 

I have a question about the modernization of the Lifeline program. I am hearing from many constituents that they are concerned with a portion of the proposal that would start charging for 

services that have been free for years. I think that has been a consistent theme here this morning. Would you further explain the 

proposal of the modernization of the Lifeline program? 

Ms. CLARKE. Well, what we are attempting to do, and it was a 

very simple, for me, objective to ensure that the Lifeline program 

looks much like everyone else’s offerings and options and opportunities. Right now, it just goes to finance voice services and we believe in a 21st century economy world that is insufficient. 

77 

So, we are still in a deliberative stage. I have heard concerns, as 

I mentioned in my opening remark from consumers that are concerned, particularly on a mobile voice problem—a mobile voice consider it to be a problem here. 

But what I want to assure you is I am going to take all of those 

into considerations because I want, as I have the option to pay little, none, or more, depending on my ability and what I want from 

the market and that is what we are attempting to create all price 

points starting at zero. 

Ms. CLARKE. So, my question is related to the maintenance of the 

voice service for constituents that may not have access to high 

speed broadband or may not want to adopt the modern technology 

because they are seniors or disabled or perhaps less literate. Is the 

FCC being too presumptuous that broadband will be competitively 

available to all Americans in the next 3 years, as outlined in the 

agency’s draft proposals? 

Ms. CLYBURN. I will answer this way and more succinctly, based 

on time. It is my wish that whatever your desire is from a communications standpoint, whatever your need is from a communications 

standpoint, that this is a program that answers your needs. 

Ms. CLARKE. Very well. Mr. Chairman, I yield back. Thank you 

very much. 

Mr. JOHNSON. I thank the gentlelady for yielding back. The chair 

now recognizes itself for 5 minutes. 

Chairman Wheeler, recently, I was shown a quote attributed to 

a former venture capitalist, you, regarding the FCC’s regulation of 

what was then a cutting edge innovative service: ‘‘I would hope the 

Commission recognizes that despite the fact that they have very capable and dedicated individuals, it is not smarter than the functions of the marketplace. In that regard, I would just point to the 

cellular industry. The reason the industry has reached the level it 

has is because the FCC was smart enough to know that they didn’t 

have all the knowledge.’’ 

So, looking at the situation with Binge On and other products, 

you have a team scrutinizing them, notwithstanding the overwhelming consumer response. It sounds like now the FCC’s Enforcement Bureau does have all of the knowledge, in your opinion. 

So, what has changed at the FCC since you made that statement 

as head of CTIA? 

Mr. WHEELER. Well far be it from me to challenge the wisdom 

of that statement, Congressman. The model that we built for the 

Open Internet is based on Section 332 and what I was speaking 

about at that time. And the job that the Congress and the Commission did in saying it is a common carrier and here are the things 

from which you will forbear. And that the responsibilities of common carriage continue to obtain them. And just like the common 

carriage responsibilities of data roaming were applied to wireless 

carriers in the last several years, so, too, do we then look at other 

common carriage responsibilities that may fall out and be affected 

by internet service providers. 

Mr. JOHNSON. OK, well, great. So, it sounds like your position 

has changed, that now the Enforcement Bureau does have more of 

the knowledge than the private market. 

78 

Let’s go on to a second question. On your watch, and one of our 

colleagues earlier said we are not really talking about your budget, 

which is what you are here to talk about but I am going to segue 

to that. 

On your watch, average personnel costs for employees in the Enforcement Bureau have grown faster than was the case under 

Chairman Genachowski. Certainly average salaries for those in the 

enforcement bureau have grown faster during your tenure than 

was the case under your predecessor. How do you explain this 

trend toward higher spending? 

Mr. WHEELER. You have given me a piece of information that I 

was unaware of and I will be happy to—— 

Mr. JOHNSON. Would you get back to us and take that question 

for the record? Thank you. We would like to know that. 

Also, Chairman Wheeler, the FCC, as a matter of practice sends 

a contingent of Enforcement Bureau field agents to the Super 

Bowl. Correct? 

Mr. WHEELER. Yes, sir. 

Mr. JOHNSON. It is the job of these field agents to ensure that 

no harmful or malicious interference interrupts communications, 

broadcasting, or public safety. Is that correct? 

Mr. WHEELER. Yes, sir. 

Mr. JOHNSON. A group went this year. Am I correct, this past 

January—February? 

Mr. WHEELER. Yes, sir. 

Mr. JOHNSON. I assume that, given the task, that this team is 

responsible for they are made up of primarily engineers that can 

resolve those problems. Is that correct? 

Mr. WHEELER. I don’t know the answer to that, sir. 

Mr. JOHNSON. OK. Could you get back to us on that? 

Mr. WHEELER. Yes, sir. 

Mr. JOHNSON. Did the chief of the Enforcement Bureau attend 

the Super Bowl as part of the FFC’s presence this year? 

Mr. WHEELER. I don’t know the answer to that, sir. 

Mr. JOHNSON. Would you get back to us on that? 

And do you know if any Enforcement Bureau chiefs in the past 

have attended the Super Bowl? 

Mr. WHEELER. I don’t know the answer to that. 

Mr. JOHNSON. OK, so there are three or four questions for you, 

if you would get back to us on those. 

Sticking with you, Chairman Wheeler, but changing focus, as the 

head of an important agency, I am sure you are aware of the challenges that have arisen in agencies and departments like the EPA, 

the IRS, and the State Department with respect to the use of nonofficial means of communication, often to avoid or allay things like 

the Administrative Procedures Act or the Freedom of Information 

Act and the Federal Records Act. 

Does the FCC have a policy that clearly requires FCC employees 

to comply with these rate obligations and how do you enforce that 

policy and ensure that personnel cell phones and direct messaging 

over social media platforms are not use by your employees to avoid 

the sunshine and openness we expect in a regulatory agency like 

the FCC? 

79 

Mr. WHEELER. I am sorry, let me see what I understand. You are 

saying what policy do we have to make sure that you don’t do business on private—— 

Mr. JOHNSON. Yes, essentially. 

Mr. WHEELER. That is policy. 

Mr. JOHNSON. Do you have that policy? 

Mr. WHEELER. Yes, sir. 

Mr. JOHNSON. What do you do to enforce it? What kind of enforcement mechanisms do you have in place? 

Mr. WHEELER. We don’t go spying on our employees. 

Mr. JOHNSON. I am sorry? 

Mr. WHEELER. We don’t go looking at what our employees are 

doing. 

Mr. JOHNSON. How do you enforce it? 

Mr. WHEELER. We have the rule in place. 

Mr. JOHNSON. So you don’t enforce it. 

Mr. WHEELER. If there is a complaint made against the rule, I 

am sure we will enforce it. 

Mr. JOHNSON. OK. What I hear you saying is you don’t enforce 

it. 

I yield back and now I recognize Mr. McNerney from California 

for 5 minutes. 

Mr. MCNERNEY. I thank the chair. 

Concerning the ISP privacy proposal, Chairman Wheeler, I believe that consumers should have control over their data, what they 

disclose and how their data is used. Recognizing that the average 

internet users may not be aware of the multiple entities, such as 

the ISP and Web sites, the collective data, will your proposal ensure that consumers have an understanding of what entities are 

collecting their information? 

Mr. WHEELER. Yes, sir. 

Mr. MCNERNEY. How will do you that? 

Mr. WHEELER. So, there are three legs to this stool. First, is 

transparency, that it must be disclosed what information is being 

collected and then how that information is used when it is collected. 

The second is that you must be given choice insofar as do you 

want that information to be collected and used. 

And the third is that that information must be secured so that 

it does not end up violating your privacy by leaking out to some 

other source. 

Mr. MCNERNEY. Are you going to require opt-ins or opt-outs as 

part of this? 

Mr. WHEELER. Yes, sir. 

Mr. MCNERNEY. So the consumers will have to opt-in or opt-out, 

depending on what they want? 

Mr. WHEELER. Any information that is collected by an ISP may 

not be distributed to a non-ISP, in other words, may not be sold 

to an advertiser or somebody like this, without the opt-in consent 

of the consumer. 

Mr. MCNERNEY. Thank you. Data security is a critical element 

of the ISP privacy proposal, at least in my opinion. One of the 

things you can do is called out by requiring reasonable steps but 

80 

what does the Commission mean by reasonable steps? What does 

that constitute? 

Mr. WHEELER. So, that is noticed by the absence of reasonable 

steps. The reality is that one company’s solution may be as adequate as another’s solution but what we don’t want to do is to say 

here is the black and white cookie cutter that everybody has to do. 

Let’s for instance, let me give you an example. 

There was one company that allowed their employees to operate—allowed is the wrong word—under whose supervision where 

employees sold the information for about 280,000 customers. There 

must be a reasonable structure in place to prevent that kind of activity. 

Mr. MCNERNEY. So, you don’t believe in establishing a standard 

through some process and then applying that standard. 

Mr. WHEELER. We establish the expectation that you will do it 

but there are multiple ways that it can be accomplished. 

Mr. MCNERNEY. OK, thank you. 

Regarding set top boxes, as you know, I wrote a letter to you 

with Mr. Barton and Mrs. Ellmers regarding the privacy issues 

under your proposals. I appreciate you responded. We got that letter last week. Although I have a few questions about the certification process. 

How would consumers go about raising a potential violation of 

self-certification or independent certification? 

Mr. WHEELER. So, the enforcement exists as it does today under 

Section 631 applicable to wireless carriers, that that is the expectation that applies. Their first role of responsibility is the cable operator themselves. And the second is an appropriate complaint to the 

FTC or the state AG but that we have the same level of privacy 

protections that get put in place today with existing alternative set 

top boxes, such as TiVo and Roku. 

Mr. MCNERNEY. Well then who would decide an evaluation that 

warrants a revocation? 

Mr. WHEELER. The revocation of the license? 

Mr. MCNERNEY. And the certification. 

Mr. WHEELER. So, the cable operator can make that decision and 

there can be enforcement action taken by the FTC or the AGs. 

Mr. MCNERNEY. Thank you. 

Commissioner Clyburn, I am also interested in the Lifeline but 

in California, our customers get a state subsidy, along with a WiFi subsidy and yet, some of our providers are saying that even with 

that with the most generous state subsidy in the United States, 

they are still not able to supply, provide the basic services that are 

available warranted. How do you see addressing that problem? 

Ms. CLYBURN. Our universal service construct has always been 

viewed through a public and private lens. And we always knew 

that there will be certain limitations from a government standpoint 

in terms of allocation of resources, be it state or local. And so what 

we are attempting to do through our other initiatives and conversations and partnerships that we are continuing to forge is to ensure 

that the market has options that would be more in line with the 

affordability construct in which you laid out. 

And so, it is a continuing work in process and I think we are on 

the correct trajectory to marry and close these spots. 

81 

Mr. MCNERNEY. So, there may be co-payments involved? 

Ms. CLYBURN. We always knew that $9.25 from a federal coffer 

would not be enough in all cases to bridge the divide. And that is 

why it is so important for, as you mentioned, states like California, 

who recognize that, who complement the front economically and we 

are hoping for more interaction with the private marketplace to 

bring things closer to affordability for those who could use, who 

need broadband the most. 

Mr. MCNERNEY. Thank you, Mr. Chairman for indulging me. 

Mr. JOHNSON. I thank the gentleman for yielding back. 

The chair now recognizes the gentleman from Florida, Mr. Bilirakis. 

Mr. BILIRAKIS. Thank you, very much, Mr. Chairman. I appreciate it. Thanks to the panel for their testimony today. 

I have a couple of questions. Chairman Wheeler, I understand 

that a lot of robocalls or automated text messages are an unwelcome part of modern life and should be limited, as they are now, 

under the telephone Consumer Protection Act but in some cases, 

consumers, customers have a legitimate need and a real desire to 

receive important information from some businesses. For example, 

utilities may need to contact their customers with information 

about outages, repairs, service restoration or other important service updates. This is especially true in a situation we face in Florida 

when we have hurricanes and tropical storms. So, it is a public 

safety issue. 

I understand there is a petition from electric and gas utilities 

currently pending at the Commission to clarify that the TCPA does 

not apply to non-telemarketing informational communications from 

utilities to their customers. Does the Commission plan to act on 

this or can you comment on the status of the petition, please? 

Mr. WHEELER. Thank you, Congressman. I am unfamiliar with 

that specific petition. We are dealing with several issues that come 

out of TCPA. I would love to get back to you with an answer on 

that. 

Mr. BILIRAKIS. Please do. Please do. Thank you. 

I have a second question for Chairman Wheeler. We recently had 

FirstNet up here, along with your Public Safety Bureau. One of the 

things we discussed was the level of coordination between FCC and 

FirstNet on closing FCC field offices, since the field agents play a 

critical role, I am sure you will agree in resolving interference to 

public safety communications. Yet, I still don’t have a clear answer 

to my question. 

Was there any consultation between FirstNet and the FCC about 

reducing the size of the field office presence? And a simple yes or 

no will do. 

Mr. WHEELER. I don’t believe so, sir. 

Mr. BILIRAKIS. You don’t believe so? 

Mr. WHEELER. Correct. 

Mr. BILIRAKIS. That is probably a no. Is that correct? 

Mr. WHEELER. Yes, sir. 

Mr. BILIRAKIS. Yes, OK. 

Mr. WHEELER. To the best of my knowledge. 

Mr. BILIRAKIS. All right. 

82 

Commissioners Pai and O’Rielly, the market definition in the 

chairman’s set top box proposal seems divorced from the reality of 

how consumers watch video today. The video market already competes for consumers getting numerous viewing options, based on 

single programs channels or bundles. 

Isn’t the FCC’s market definition backward-looking, considering 

where the market is going? What do you think? 

Mr. PAI. Congressman, I agree with that characterization. I can’t 

put it better than the former chairman of this committee, Henry 

Waxman, who said just yesterday that this is a 20th century solution to a problem that the market is already solving on its own. 

Mr. O’RIELLY. I agree. 

Mr. BILIRAKIS. Mr. O’Rielly, please? 

Mr. O’RIELLY. I agree. 

Mr. BILIRAKIS. Thank you. 

Next question for the entire panel. Is the Commission worried 

about all the automated telephone dialing system cases being decided in court on a case-by-case basis? Should the Commission revisit the definition and help to bring clarity to the issue so that 

businesses can have clearer guidance? We will start with the chairman, please. 

Mr. WHEELER. Thank you, Congressman. We had a large proceeding on that within the last 6 or 8 months and what we are trying to hue to is the specific language that is in TCPA that says that 

insofar as wireless calls are concerned, the wireless subscriber has 

the right to determine whether or not you get called. 

Mr. BILIRAKIS. Commissioner Clyburn, please? 

Ms. CLYBURN. So, I interpreted your—hopefully my interpretation is in sync with the spirit of your question. One of the things 

that we recognize is that every situation is different and we must 

have the capacity when it comes to intake of those calls and complaints, which are huge, they are a larger number, that we each 

have the capacity to compartmentalize them and address them. So, 

how we look at them in mesh. 

There are a lot of commonalities to many of these calls and we 

will address them in such a manner that would be in sync with 

that. 

Mr. BILIRAKIS. Thank you. Any other commissioner wish to comment? 

Ms. ROSENWORCEL. As the chairman alluded to, we did address 

autodialer capacity in the summer of 2015, in our most recent decision under the Telephone Consumer Protection Act. 

But if I could make one point, it would be a plea. This is a law 

from 1991 and one of the challenges that the agency has right now 

is we are taking all sorts of technologies that did not exist in the 

early 1990s and trying to figure out how to fit them into this old 

law. We are, as a result, struggling with more robocalls for consumers and more challenging lawsuits for companies that never intended to be on the wrong side of the consumers they are calling. 

Mr. BILIRAKIS. Mr. Pai, should the Commission revisit the definition and help to bring clarity to the issues so that business have 

clear guidance? 

Mr. PAI. Without question, Congressman. But in the absence of 

the Commission doing that, and I don’t see any indication that it 

83 

will, I think as Commissioner Rosenworcel pointed out, it would be 

helpful for Congress to update the Telephone Consumer Protection 

Act. 

A number of strange situations we find ourselves in now is on 

one hand having perverted the definition of autodialer to include 

everything more sophisticated than the rotary phone, all these legitimate businesses are now seeking a special exemption from the 

FCC from the TCPA’s strictures and the various class actions that 

are sure to follow. 

At the same time, the administration is exempting entire categories of favored robocallers, such as government student debt collectors, the present payphone industry and others. They get a pass, 

whereas, a lot of these legitimate businesses don’t. That is an untenable state of affairs. 

Mr. BILIRAKIS. Commissioner O’Rielly? 

Mr. O’RIELLY. I will just say I agree. I think the definition was 

wrong at the time and we should clarify. 

Mr. BILIRAKIS. Thank you. I yield back, Mr. Chairman. I appreciate it. 

Mr. JOHNSON. I thank the gentleman for yielding back. 

And the chair now recognizes the gentleman from Missouri, Mr. 

Long. 

Mr. LONG. Thank you, Mr. Chairman. And before I give my remarks, I would like to just, along with many others, send out 

thoughts and prayers to the victims of the tragedy in Brussels 

today, including a U.S. service member and four of his family members that were injured and three Mormon missionaries, who were 

also injured, too, of which I know are Jason Chaffetz, Chairman of 

Oversight and Government Reform, constituents of his. 

And another note, I note the passing of my predecessor’s father, 

Roy Blount’s dad. Roy Blount passed away last night and I know 

that a lot of folks had not heard that yet. 

And I want to add to the accolades, even though he is not in the 

room, that everyone has been throwing out to Ray Baum today. 

And you know after he wrote Wizard of Oz, I thought he would be 

done. I thought he could live off of his residuals. 

But Ray is a great guy. And I came to Congress from a different 

background than most. I was an auctioneer and a real estate 

broker for over 30 years. I am a salesman. And a salesman has to 

be upbeat, optimistic, open. And Ray, I have never seen him in a 

bad mood. He is always upbeat, optimistic, and open, regardless of 

the challenge. I wish him the best of luck of the NAB. And I just 

realized out in the hall that he is 1 week younger than I am. Now, 

I know you can’t tell by looking because I look younger than him, 

I am sure. But anyway, congratulations to Ray on his move. 

Commissioner Rosenworcel, I want to commend you on your trip 

down to Austin promoting the broadband to rural areas, which is 

a very, very key object or whatever that we have been working on, 

that we need to work on. I, too, spoke in Austin and participated 

in a panel 10 days ago today on that very subject on delivering 

rural broadband to the rural areas, which for the students in their 

studies and everything, it is critical that we get that done. So, I 

just wanted to congratulate you on your trip to Austin to promote 

the same thing. 

84 

Chairman Wheeler, in the spirt of John Dingle, I am going to ask 

you for yes or no answers to my questions. I have got a few here. 

I don’t have a lot. 

But Chairman Wheeler, I would like to focus this morning, or 

this afternoon I guess it is now, on your treatment of television 

joint sales agreements, known as JSAs. I don’t know if you are 

aware but there is a JSA in my district between TV stations KSNF 

and KODE in Joplin, Missouri. And it was because of this JSA that 

KODE was able to buy Doppler radar, which, at the time, was obviously a benefit to the Joplin community. But in 2011, when the 

EF5 tornado ripped through Joplin, killing 161 people in a town of 

50,000, so everyone knew someone from that tragedy, when it 

ripped through Joplin, there wasn’t anything much more important 

in my community than the Doppler radar, which tracked a multiple 

vortex tornado that stayed on the ground for six miles. And the 

reason KODE was able to afford this piece of weather equipment 

was because of the JSA. 

Now, I have got to admit that I was pretty frustrated with the 

FCC when they made the decision back in 2014 to basically outlaw 

JSAs, especially when I saw firsthand the difference they can make 

to small and medium sized markets like Joplin. Clearly, also in my 

hometown of Springfield, there is a JSA operating there. Clearly, 

many others in Congress had the same frustration, which is why 

last year, we included a 10-year grandfather for JSAs created before March of 2014 in the omnibus spending bill. 

Chairman Wheeler, again, in the spirit of John Dingle, yes or no 

answer. Were you aware of the passage of this law? 

Mr. WHEELER. Yes, sir. 

Mr. LONG. OK, good. I thought that when Congress passed the 

law, it would have been the end of the conversation on JSAs but, 

unfortunately, to my surprise, I see the FCC has decided to use the 

merger process to circumvent a recently passed law. In a number 

of instances, the FCC has not provided the law’s 10-year grandfather to JSAs involved in a merger. Is that correct, yes or no? 

Mr. WHEELER. No, sir. 

Mr. LONG. That is not correct? 

Mr. WHEELER. That is not correct. 

Mr. LONG. I am aware that—— 

Mr. WHEELER. Would you like me to explain? 

Mr. LONG. I am aware that you argue that there is long-standing 

precedent that gives the FCC the right to modify new licenses. 

Have you read the language in the omnibus bill that grandfathers 

JSA? 

Mr. WHEELER. Yes, sir. 

Mr. LONG. Can you tell me if the omnibus language includes any 

exceptions to the 10-year grandfather in the JSAs? 

Mr. WHEELER. It talks about license—— 

Mr. LONG. Yes or no? 

Mr. WHEELER. It talks about—— 

Mr. LONG. Can you answer yes or no for me? Let me repeat the 

question and I would like a yes or no. 

Can you tell me if that omnibus language includes any exceptions to the 10-year grandfather in the JSAs? 

Mr. WHEELER. In the definition of license—— 

85 

Mr. LONG. Yes or no? Can you give me a yes or no? That is a 

simple question. 

Mr. WHEELER. Yes. 

Mr. LONG. Thank you. Did the language include any exception in 

the case of merger reviews or FCC precedent? Yes or no? 

Mr. WHEELER. Yes. 

Mr. LONG. And in the case where the FCC precedent that conflicts with a federal statute which trumps, isn’t the statute—it is 

in the statute, isn’t it? 

Mr. WHEELER. The statute does not conflict. 

Mr. LONG. It appears others were as surprised as I was with 

your interpretation of the statute. Now the statute recently, the 12 

bipartisan senators representing a full political spectrum from Senators Schumer and Durbin to Senators Blunt and Wicker sent you 

a letter telling you the congressional intent of that omnibus language, mainly to grandfather all JSAs created before March 14 and 

you are in receipt of that letter, yes or no? 

Mr. WHEELER. Yes, sir. 

Mr. LONG. OK, I yield back. 

Mr. JOHNSON. I thank the gentleman for yielding back. 

The chair now recognizes the gentlelady from North Carolina, 

Mrs. Ellmers. 

Mrs. ELLMERS. Thank you, Mr. Chairman and thank you to our 

panel. I am going to continue the tradition that we are carrying on 

here of Congressman Dingle. 

And Mr. or, excuse me, Chairman Wheeler, as you know, I have 

legislation requiring the FCC publish any rule changes on their 

Web site within 24 hours, H.R. 2589. Transparency has been a priority for this administration. So, I find it strange that some have 

balked at this proposal. To that end, I would like to ask you a few 

yes or no questions. 

Does the FCC have the ability to publish rule changes online 

within 24 hours? 

Mr. WHEELER. Yes. 

Mrs. ELLMERS. They do. So, you confirm that within 24 hours we 

will be able to publish that information at the FCC? 

Mr. WHEELER. You were asking the question do we have the 

technical ability to publish within 24 hours. 

Mrs. ELLMERS. And your answer is yes, correct? 

Mr. WHEELER. Yes. 

Mrs. ELLMERS. Thank you. Now, I want to move on to another 

subject. Chairman Wheeler, I have been a little disturbed to read 

about the FCC’s quote anti-business bias in a recent Hill article. 

The commissioner’s job is to ensure that the communications marketplace is functioning to promote benefits for consumers and not 

to be beholden to radical special interest groups. Are you really listening to the wide range of stakeholders involved in the FCC matters or is there a real bias, as been pointed out in this article? 

Mr. WHEELER. Yes and no. 

Mrs. ELLMERS. Yes and no? 

Mr. WHEELER. Yes, I am—there were two questions there. One 

was am I listening and the other is there a bias. 

Mrs. ELLMERS. So yes, to you are listening and no to the bias. 

Mr. WHEELER. Yes, I am listening. No, there is no bias. 

86 

2The information has been retained in committee files and is also available at http:// 

docs.house.gov/meetings/if/if16/20160322/104714/hhrg-114-if16-20160322-sd004.pdf. 

Mrs. ELLMERS. Thank you. OK. 

So, in 2012, there was a white paper that was created and Mr. 

Chairman, I ask unanimous consent to submit this for the record. 2

Mr. JOHNSON. Without objection, so ordered. 

Mrs. ELLMERS. Thank you. It was a white paper on video reform 

from one of these groups, a special interest group called Public 

Knowledge, which seems to indicate that you are listening to very 

few voices. 

I look at the executive summary and find that there are four recommendations listed here that you have basically initiated by your 

administration. And I will go through a couple of them, as time allows. 

One, the FCC should issue a declaratory ruling that multichannel video programming distributors, it goes on to say, may not 

engage in unfair methods of competition or deceptive acts and practices with regard to online video distributors. You started this process to—to that question, have you not started that process? 

Mr. WHEELER. I am sorry, I am confused here. I wasn’t chairman 

in 2012 and I am kind of—— 

Mrs. ELLMERS. You were part of the FCC at that time, though. 

Mr. WHEELER. No, ma’am. 

Mrs. ELLMERS. You were—— 

Mr. WHEELER. I was a businessman then. 

Mrs. ELLMERS. OK, but basically the point I am making is that 

in this 2012—not that you were there in 2012. This white paper 

was generated in 2012. But the point I am trying to make is that 

you are adhering to this white paper. 

Mr. WHEELER. I am sorry, ma’am, I am unfamiliar with that 

white paper. 

Mrs. ELLMERS. OK. Well, then I will just point out then that this 

particular white paper outlined this particular suggestion and you 

are following it. 

Mr. WHEELER. On which topic or recommendation? 

Mrs. ELLMERS. OK, I will read it again for you. The FCC should 

issue a declaratory ruling that multichannel video programming 

distributors, and it goes on to say, may not engage in unfair methods of competition or deceptive acts and practices with regard to 

online video distributors. And that is part of the white paper. 

You started this process with questions to that practice. Is that 

not true? 

Mr. WHEELER. I apologize. An online video distributor is—— 

Mrs. ELLMERS. OK, I will tell you what. Let’s leave that one 

aside. 

Mr. WHEELER. OK. 

Mrs. ELLMERS. The FCC, and this is, again, in the white paper, 

the FCC should begin a proceeding to determine which regulations 

ought to apply to OVDs that choose to operate as MVPDs themselves. You have begun this rulemaking as well, have you not? 

Mr. WHEELER. Thank you. I have proposed and then have 

not—— 

Mrs. ELLMERS. Yes or no? Yes or no? 

87 

Mr. WHEELER. Have not moved on. 

Mrs. ELLMERS. OK. Well, there again, I would like to submit a 

couple more of the quotes from the white paper. We are submitting 

the white paper for the record. 

But you know, Chairman, I will be honest and tell you at this 

point, and after watching this process, I am not sure exactly whose 

opinion you are actually taking—— 

Mr. JOHNSON. Will the gentlelady yield? 

Mrs. ELLMERS. My time has expired. And this is troubling to me. 

So, this is very troubling and I think that we need to take more 

time to acknowledge the fact that you may be taking opinions that 

are truly biased and that is very frightening to me moving forward. 

And I yield back, Mr. Chairman. 

Mr. JOHNSON. Did the gentlelady want to specifically say what 

she wanted to add to the record there, your last comment? 

Mrs. ELLMERS. Well I what will say is I basically, Mr. Chairman, 

and I thank you, I have a couple of quotes and basically I will ask 

for those yes or no answers in written form. 

Mr. JOHNSON. Without objection, so ordered. 

Mrs. ELLMERS. Thank you. 

Mr. JOHNSON. The gentlelady has expired. 

The chair now recognizes Mr. Collins from New York. 

Mr. COLLINS. Thank you, Mr. Chairman. And thank you, witnesses. It is almost this is a 3-hour hearing. I have to admit I took 

a break and had lunch. 

What would be a hearing without the New York guy asking 

about pirate radio? So, here we go. I don’t think I will take the 

whole 5 minutes. But Mr. Wheeler, you and I have had this discussion back and forth. 

Mr. WHEELER. Yes, sir. 

Mr. COLLINS. And so in questions after, following the March 19 

oversight hearing, you were asked about the report that showed a 

decline in enforcement in pirate radio. And the question was, has 

any guidance or instruction been given by the Office of the Chairman or Enforcement Bureau to commission staff not to enforce the 

statute or commission rules with regard to unlawful operations? 

July 21, we did a get a response, July 21, 2015, from you that 

stated the Office of the Chairman and the Enforcement Bureau 

have not given or instructed to the commission staff not to enforce 

the statute or commission rules with regard to unlawful operation. 

I am assuming you remember that. 

Mr. WHEELER. Yes, sir. 

Mr. COLLINS. OK. So, 1 week later, July 28 we spoke again in 

this hearing and I asked you if there was any truth to the reports 

to the suggestion that the FCC had actually directed field offices 

to step down and back away from an enforcement. You responded, 

and I quote, I have heard that. And you further added that any 

such command did not come from you. 

So, last December, the existence of an internal email within the 

Enforcement Bureau, this was last December, was disclosed that in 

October of 2014 the staff of the Bureau’s Northeast Region was informed that the FCC’s response to pirate radio operations was 

being scaled back and the Enforcement Bureau would not be 

88 

issuing notices of apparent liability to the majority of individuals 

engaged in such unlawful behavior. 

So, my question is, since that disclosure came forward last December, have you looked into that directive. 

Mr. WHEELER. I have not looked into that, which I maybe had, 

you know was not compos mentis or something at the time. As you 

read that into the record, I do not remember that. But I have taken 

serious interest in pirate radio. And I am told that about 20 percent of the activities of the Enforcement Bureau are directed to pirate radio; that we have had about 130 enforcement actions last 

year; that we continue on that. 

And I would add my voice to Commissioner O’Rielly’s comment 

earlier about one of the realities that we are finding here is that 

we need to get to those who enable it. We can’t just pat ourselves 

on the back for playing whack-a-mole, that we need to get to those 

that enable it. And if there could be legislation that would address 

that and empower us to do with—— 

Mr. COLLINS. Well, I have got a couple of questions. First of all, 

I would like, if you could, look into that directive and get back to 

our committee—— 

Mr. WHEELER. Thank you. 

Mr. COLLINS [continuing]. about who issued that directive. We 

would like to know where that came from. But also, recently—— 

Mr. WHEELER. The email does not say? I am sorry. There is the 

email. Is there an email? 

Mr. COLLINS. I don’t have the details. 

Mr. WHEELER. OK, I will get on top of that. 

Mr. COLLINS. But real quickly, my last point. You just mentioned 

the need for congressional action to take on the landlords and the 

others that might be behind the scenes working on this. But by the 

same token, there was recently released from the FCC an advisory 

notice from the Enforcement Bureau that stated that the FCC already has the ability to take FCC enforcement against those individuals. Your own bulletin said that. 

So, I think that it is a bit disingenuous to say you need congressional action when your own Enforcement Bureau regulations says 

you have already got the authority. 

Mr. WHEELER. We would love to come back to you and be able 

to specifically identify the legislative authority that we are talking 

about. 

Mr. COLLINS. But your own enforcement people say you have already got the authority. So, I would encourage you to, move forward. 

Mr. WHEELER. I think the question is what is the extent of 

that—— 

Mr. COLLINS. In my last 12 seconds, because I don’t want to hold 

us over, I just also want to ask a very direct question because it 

has been suggested that senior managers of the Enforcement Bureau do not want to shut down pirate radio operations because they 

serve certain communities, certainly within New York City, that 

might not have otherwise access to that. 

Is there any truth in that? 

Mr. WHEELER. Well, that would be wrong. 

89 

3The list has been retained in committee files and is also available at http://docs.house.gov/ 

meetings/if/if16/20160322/104714/hhrg-114-if16-20160322-sd008.pdf. 

Mr. COLLINS. And so there is no truth in that? And it would be 

wrong. 

Mr. WHEELER. It is news to me. 

Mr. COLLINS. OK, well I appreciate that fairly direct answer. 

With that, Mr. Chairman, I yield back. 

Mr. JOHNSON. I thank the gentleman for yielding back. 

And the chair now recognizes the ranking member, Ms. Eshoo. 

Ms. ESHOO. Thank you, Mr. Chairman. I have a unanimous consent request to place into the record a compilation of documents. 3

The documents include press reports documenting that broadband 

investment has not decreased as a result of the Title II reclassification. The documents also include an analysis of FCC filings and 

earnings reports of the major telecom companies, similarly showing 

that broadband investment has not decreased and also a letter relative to broadband privacy rulemaking, all of which we have 

shared with your counsel and ask that these be placed in the 

record. 

[The information appears at the conclusion of the hearing.] 

Mr. JOHNSON. Without objection, so ordered. 

Ms. ESHOO. Thank you, Mr. Chairman. 

Mr. JOHNSON. I remind members that they have—first of all, I 

want to thank the panel for being with us today. Thank you very 

much. I am not used to sitting in this chair. So, I almost forgot that 

part. Thank you for being here. 

I remind members that they have 10 business days to submit 

questions for the record. And I ask the witnesses to respond to the 

questions promptly. Members should submit their questions by the 

close of business on April 6th. 

Without objection, the subcommittee is adjourned. 

[Whereupon, at 1:12 p.m., the subcommittee was adjourned.] 

[Material submitted for inclusion in the record follows:] 

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