why is that? >> first of all the rules are quite clear on what constitutes an ex parte. and that is an attempt to file specifically in a specific docket and to influence the outcome of that docket -- >> did you discuss this -- >> just -- and. >> did you discuss this matter during those meetings. >> and there are provisions long established going back to the bush administration also legislative council. >> i have five minutes. i need to ask very specific. >> you are asking about ex partes. and there is no requirement that there be an ex parte file. there was no need either. i want to make sure -- >> i don't understand that. you met with them. you're telling me this proposed rule did not come up in any of

those meetings but one? >> i don't know the details of those meetings. i can't recall the details of those meetings. i can assure you that there were no, nothing that would trigger an ex parte. >> so you meet with the white house multiple times during the open comment period after the comment period closes, and we're supposed to believe that one of the most important things the fcc has ever done that this didn't come up and they didn't have any discussions and they didn't comment back to you. is that what we're supposed to believe? >> the administration was very scrupulous in making it clear that i was an independent agency and they were not telling -- >> i guess the point is chairman. you met with them multiple times. they came to visit you. you went to visit them. we invite you to come in an open and you refuse. we asked you to send us documents and you didn't send us a single one. that's very troubling for us. i need to move on. >> mr. chairman, one thing here, i did agree to come. i'm here.

>> no before the rule. you met with the white house before the rule but you didn't meet here. >> you gave me a week's notice -- >> that's usually what we give people. >> there are other committees i'm also trying to respond to. i said in the response i would look forward to coming tow you >> i didn't believe you then. and i don't believe you now. you said you would not come to visit with us. you didn't send us a single document that we asked for before that rule. that's just not right. >> i think we sent you 1800 documents -- >> after the rule. my complaint is that beforehand you didn't. and you met multiple times with the white house. i'm moving on. hold on. our time is short. this is the way it works. on september 23rd multiple people met at the white house. i'm going to enter into the record asking unanimous consent this daily collar article of february 23, 2015. white house log showing record

number of people met at the white house that are activists on this topic. i want to play a video clip. this is the 6:55 in the morning of the day that the president is going to issue his statement. this is you, right? at your home? >> yes, sir. >> and you woke up that morning to protesters out in front of your house. they laid down in front of your car, wouldn't let you get out of your driveway. they were there trying to make quite a statement. and there is a long five minute video of this. at 7:35 that morning you sent out an e-mail to your fellow commissioners calling it an interesting development. and later that afternoon -- i want to put up a slide. when this was provided you redacted this. this was all redacted. hard to see on this screen but we don't understand why this was redacted. this is what you wrote. in fact if you would want to read it, go ahead. this is the same day. 6:55 in the morning. protesters show up.

7:35 you're sending out a concern. then all of a sudden the president's statement comes out in a very coordinated fashion. you -- i -- he has the right to weigh in on this. that's fine. but later that afternoon you send out this e-mail that says fy, isn't it interesting, the day of the demonstration just happens to be the day folks demonstrate at my house. the white house sends an e-mail supports list asking, quote, please pass this on to anyone who cares about saving the internet, end quote. and then you write hmm. why did you write that? >> does this suggest a secret plan? a secret set of instructions? >> i'm asking you why. you wrote it. it's your language. >> i think that this clearly is showing that there was no kind of coordination.

>> you think that -- there was no coordination. the protesters show up, just happen to show up the morning before the announcement comes. nobody knows that the president is going to make this announcement except the protesters who show up at your home. and you are the one who wrote that you thought hmm, isn't it interesting. >> excuse me, i wasn't speaking clearly, clearly. no, i'm talking about coordination with us at the commission. i don't know who else they were coordinating with. and this suggests that maybe they were coordinating with others. >> so you had multiple meetings at the white house. they came to visit you. and we're supposed to believe there was only one discussion about this. is that your testimony? >> they came once to meet with me and filed an ex parte at which time i was told, as the ex parte says this is the president -- the president is going to make an announcement and a couple days later. and he is going to endorse title 2.

that is all i knew. the other meetings at the white house -- you know, i was there on trade. i was there on national security issues. i was there on spectrum. i was there on auctions. i was there an e rate. i mean there are numerous issues. and carolyn atkinson was none of the names that you named in here when you were going through lists. i can assure you i didn't talk to her about open internet because she knows nothing about open internet. that entire conversation and several that i have had with her have been trade issues. and the process for reviewing agreements that relate to national security items. >> but you only spoke one time with jeffrey zinea about this, one time. >> the only time he spoke to me and said this is what the

president's position is is when he came and filed an ex parte saying that. i have been repeatedly saying i know the president has a strong position in favor of the open internet, as do i. and keeping them informed that i was fighting for a strong open internet position. >> so you informed them. and you tell me they had no reaction, no comments. >> i informed them that they had -- that i had a strong position in favor of. as a matter of fact i believe you have e-mails that show i have e-mails with them saying hey, these press reports that i'm watering this down aren't true. >> i have lots more questions but my time is far exceeded. will now recognize mr. cummings for five minutes. >> welsh. >> sorry, mr. welsh of the vermont. >> thank you very much.

let's get right to this. mr. wheeler this is probably one of the most contentious public policy questions we faced in the time i served in congress. four million comments. all of us as members of congress received comments. the two things i understood were of concern to you and your fellow commissioners, republican and democrat i however whatever decision you made affect inoue innovation and the buildout. is that correct. >> that was the balance. >> and is that something over time you all debated to try to figure what would be the impact of whatever direction you took? >> yes, sir. the whole rule-making process is an evolutionary one. as i said in my statement, and the whole concept of what title two is a fluid and evolutionary process. >> all right and the premise of this hearing seems to be almost like a watergate type deal, what did you know and when did you know it. but in public policy when you are trying to figure what you can know and get to a good public policy decision, it is a back and forth discussion and listening to the four million

comments, it is listening to members of congress. and incidentally the president of the united states elected by everybody is a relevant commentator. is that correct? >> i can tell you i was constantly learning through the process. >> is there in a "new york times" a report about the previous matter at the fcc, where president reagan had the commissioner in for 45 minutes. did president obama ever summon you to the white house for the purpose of a 45 minute discussion about the way it is going to be with this order that you were considering? >> no, sir. president obama has never summoned me to the white house to discuss anything the fcc is doing. >> and you indicated on this capital formation issue, after the president -- who by the way was obviously aware of the enormous grass roots concern of the outcome that when he made his comment you observed the impact on the markets. correct? >> yes, sir. >> and what was that impact? >> there was zero impact on the market. and one of the concern all of

the isps had been making is understand what the consequences of an action in title 2 may be on the markets. and lo and behold there wasn't. >> and in fact in the case of another country that's done this, denmark, i believe. have they continued to have open access and capital formation with respect to the build out of their internet? >> you are better informed than i am, sir on denmark. >> just on this capital formation issue, you mentioned the spectrum auction. did that exceed what was expected to be revenues from that option? >> significantly. we raised about $41 billion which was triple some of the estimates. >> and with respect to the market since then, has there be any major disruption that can be attributed to the decision you made? >> the market has continued to advance northward on the valuations of these stocks. >> and my understanding as well is one of your enormous concerns

when you initially propose possibly using section 706 was the weariness about having too heavy handed a regulatory regime. and you have some history in the industry. were there factors that you took into consideration in the decision on title 2 about what type of regulatory framework that would be applicable? >> yes, sir. the model that was built for the wireless industry, which the wireless industry sought by the way which was to use title 2 and have them declared a common carrier. but then to fore bear, to not enforce those parts of title 2 that are no longer relevant. >> and is it your intention to work with your fellow commissioner, republican and democrat, to achieve that light touch approach? >> yes, sir. and i believe this rule has. as a matter of fact there were 48 sections of title 2 and we

have forborn from 27 of them and that compares with the 19 that were fore born from in the wireless environment. >> i want to go back basically to the money question here, the suggestion that somehow, some way president obama, who has a right to express an opinion muscled you and the commission into doing something you didn't want to do and suggestions that that is the case the chairman indicated a number of meetings you had with folks from the white house. i just want to give you an opportunity to say whether the president gave you directions, explicit or implicit, as to how you should do your job or left it to you to exercise your judgment in your persuasive abilities with your fellow commissioners? >> no the president did not. and i interpreted the president's statement was that he was joining with the 64 democratic members of congress and the millions of people and that he was identifying with them. >> thank you.

i yield back. >> thank you the gentlemen. will now recognize the gentlemen from ohio mr. jordan. >> thank you, mr. chairman. you said the notice of rule making in may based on section 706 of the act. that seems to be your position throughout most of 2014. a 706 based approach. you testified on may 20 last year in front of energy and commerce committee that section 706's approach is sufficient to give the fcc what it needs or the open internet and as late as october 30th last year the wall street wrote chairman wheeler will move forward with a 706 based approach. now back to where the chairman was. all that seems to change on november 10th. so where you state publicly now title 2 is definitely in the mix and that is ultimately the direction that the commission took. so my question is simple.

what changed between october 30th and november 10th? >> mr. jordan, i think that is an incorrect assumption. >> i'm using your statements mr. wheeler. what the "wall street journal" get it right or were they wrong. >> on february 19th i said that we keep title 2 authority on the table. >> i understand that -- >> there is a laundry list sir. >> hang on. but i'm quoting from today's testimony you just red. the proposed rule is 706. and the "wall street journal" as late as october 30th said it was what you were going to move forward. what happens between the 30th and the 10th seems to me two events. one, the president made his youtube video and commented and moved towards a title two approach. and issued a statement. and two, you had an important meeting with mr. zeinst on november 6th. >> i think that is an incorrect assumption. >> i'm going from the time line. >> let me quote from the "new york times" the day after the "wall street journal" saying

there are four options on the table. >> you can respond when i ask you a question. that is how it works. now let me go through where the chairman was earlier. you reaction with the white house. march 6th, tom wheeler meets with the jeff zients. who is he by the way. >> head of the national economic council. >> i assistant and has a long title. >> correct. you meet with him on sixth. march 7th. meets with him again. may 7th. meeting with jeff at the white house. may 21st. tom wheeler meets with the him at the white house. may 11th meets with the economic council advisers at the white house. june 18th. september 11th. tom bheeler erwheeler meets with

jeff at the white house. and october 15th. tom wheeler meets again with white house economic advisers, and october 28th tom wheeler meets with him at the white house. so leading up to october 30th. you have met with the white house nine times all at the white house with mr. zeinst who's the assistant to the president for economic policy. and up through october the position of the commission, according to the "wall street journal" and your testimony in front of congress is a 706 based approach. that changes just a few days later. and i would argue it changes on november 6th when again you met with mr. zeinst. but the one difference here is mr. wheeler. the one difference is nine times you went to the white house. on november 6th. he comes to you. this is the only time he came to you as i look at the record. and my inclination is he came to

you and said hey, things have changed. we want the title 2 approach to this rule. now, am i wrong? >> yes. first of all there may have been nine meetings but i'm telling you i listed them a moment ago. and i won't -- >> no there are nine where you went to the white house. there is one where he comes to you. >> and dealing with -- [ inaudible ] >> dealing with auctions and as i said in my testimony, before there was any input. there were multiple issues on the table including a title two and 706 approach. >> i got 29 seconds. hang on one second mr. wheeler. >> it is a mistake to say that the only thing on the table was section 706. >> i didn't say that. >> i thought. >> that's what you were going to do and then it changes a couple days later. i got 11 seconds. >> i got 11 seconds.

in your testimony, i want to be clear, there were no instructions from the white house, i did not as ceo of an independent agency feel obligated to follow the president's recommendations. one last thing. who the phil verveer? >> senior counsel in my office. >> top lawyer. top adviser senior counsel. >> here is what we got from him and on december 10th. four days after he came to you, after you went nine times to the white house, mr. zeinst comes to you and everything changes. and this is what the at&t representative said to your counselor. this is awful. and bad for independence. too many saw him going to meet with tom last week. so i'm not the only one who thinks everything changed on november 6th. this individual talked to your

senior counselor and said things changed again on the 6th and again the white house came to you and said mr. wheeler, new sheriff in town. things are different. it is title two from this point forward. and that is ultimately what you all adopted. even though you had the 706 all the time you adopted the title 2 approach. >> we did not adopt a title two approach. we adopted a title 2 and section 706. which i believe -- i can't read it all but i think it is referenced in the first line of that e-mail. >> the gentlemen's time -- >> but -- >> the gentlemen's time is expired. >> mr. chairman, mr. chairman. with all due respect. the gentlemen just went over a minute and a half. and at least i would ask that he be allowed to answer the question. >> sure. >> unanimous consent. go ahead. >> there were as i was pointing out the "new york times" actually wrote the day after

this "wall street journal" article that hybrid quote is one of the four possibilities the fcc is considering as it seeks to draw up a the net neutrality framework that unlike the last two attempts will hold up in court. the title 2 and 706 usage, as i said in my testimony was on the table along with a title 2 and 706 non hybrid, along with 706, along with title 2 by itself. >> mr. chairman. >> now recognize the gentlewoman from new york. miss maloney. >> thank you. chairman wheeler it has been reported that the proposed open net neutrality rule received 4 million comments. and i'm curious, compared to other rules before the fcc, did any other rule get anywhere near

this number of comments? >> no ma'am. and it broke our it system. >> i heard that. do you have a sense of what percentage of the comments were in favor of net neutrality? i know thousands of comments came into my office. and all of them were in favor of an open internet and net neutrality. what about your comments. >> i think they ran about three to one in favor. >> three to one in favor. also there were several online petitions. i know of one free press but there were others. are you aware of these online petitions. >> yes ma'am. >> and there were demonstrations even in your house and in open meetings and forums and all kinds of comment periods that you participated in. and i assume you are familiar with the particular late night host john oliver. he had a piece about net neutrality this summer that went viral and he was highly critical of you and your time as the lobbyist.

are you aware of his program? >> yes, ma'am. i had new research i had do on what a dingo was. >> okay. well, he encouraged his viewers in this program to go to the fcc site and to register their position. and i understand that after his piece aired that you had to extend the comment period, that it even broke down. there were so many comments coming in in favor of net neutrality and an open internet. is that true? >> yes, ma'am. >> so do you have any idea how many comments were submitted after john oliver's show? did you break that down? how many came in? >> i can get that for you. >> would you get that for the committee? >> yes, ma'am. >> and all of that attention on you and the efforts of the individuals that commented, the grass roots organizations and the john oliver piece, is it fair to say they had some impact on your decision making process? is that correct. >> well they all went into the record, number one.

and the decision was made on the record. and obviously there was a high level of concern. i also met around the country. >> i know. you went all around the country holding public forums and listening to comments. >> and those had great impact. >> so i'd like to ask you. i'm very curious. in your opinion, who had the greater impact on the fcc's rule? president obama's comment or john oliver's show? >> well, you know, i tend to view that what was going on was the president was signing onto the 64 members of congress and the millions of people who had told us they want title 2. >> so i sincerely want to thank you chairman wheeler. it appears that the voices of the american people were listened to and you made the proper choice. i commend you for keeping an open mind during this process

and for doing what is right for the american people. and i believe the economy. so i would just say and all due respect, i believe that my republican colleagues are looking at this issue in the wrong way. they should be thanking president obama for coming out strongly in favor of an open internet rule. clearly where the american public is and clearly where the economists are. and they shouldn't be criticizing him. what i'm hearing here today is similar to the hearings we've had on the auto industry, where the restructuring that president obama did to the -- with the support of congress, to the auto industry, it was highly critical. they were highly critical of it it. but now it's been reported saved 500 jobs and we're now exporting autos, and it was the right decision. and i believe this is the right decision for our country. and i thank you.

>> chairman wheeler, much has been made between these e-mails from some of the fcc staff on the day of the president's announcement. up until then, were majority of public comments in favor of open internet policy? >> yes, sir. >> in light of all of these public comments, was title two being exploited by your staff? >> we were deep into title two and a title 2, 706 -- >> may i reclaim my time. i just want to add that president obama saved the auto industry. he saved the auto industry. and he saved the internet. and i believe very strongly that republicans are on the wrong side of this issue for the economy and for the american people. >> thank the gentle woman. now recognize the gentleman from

florida. >> thank you. i think this boils down to people are trying to figure out why you are against the president's policy on net neutrality before you became for the president's policy. and in a very abrupt turn. and some of it evolves around circumstances. the zeinst meeting with you appears to be very influential. it appears too from some of the communications i've seen back may 15th -- is that when you were releasing the mprm? >> yes, sir. >> i've got a copy of an e-mail from senate chief of staff.

this is mr. reed's chief of staff at the time, david krone. do you know him? >> yes, sir. >> and it appears there was enlistment to try to keep your previous position in tact. he said good luck today. not sure how things have landed but trust for things it to work. shout out if you need anything. spoke again last night with the white house and told them to back off title 2. went through once again the problems it creates for us. do you remember this e-mail? >> yes, sir. >> well it appears that -- and, you know, in defense of your trying to come one a certain position, that people were trying to back you. it looks like senator reed was backing you at that time, right? or at least this is the indication we have.

and he was trying to get the white house to back off pressuring you. is that correct? >> so i'm really grateful for this question. because there is i think a couple of things that are important to respond to. one is the president was clear he was for a strong open internet during his campaign. >> but before -- for his position you were against his position and you had allies trying to help you, including -- i mean reed was the big cheese at that time and this was his chief of staff. i was his chief of staff on the senate. i know the power they wield. >> i know sir. and what i was saying is against it before you were for it, the answer in that is no. >> well i mean everything we have -- >> every public document. and some has been cited here. you were taking a different course. you took a different course in rolling this out.

you draft a -- offered a proposal. is that correct? >> i have testified sir that this was an evolutionary. >> and the proposal was scant on mention of title two. >> no it was very rich in mentioning of title two and specifically said is it better. but be that as it may. >> -- evolutionary process. and the job of a regulator is to put forth a proposal to see what it attracts again in terms of concerns and to learn from that experience and to evolve. and that is what i did through this entire process. >> everything we have indicates that you were headed in a different direction. trying to stem the tide of the white house. you were in an awkward position. and even commissioner pai said in his dissenting statement, president obama's endorsement of title 2 forced a change in the fcc's approach.

so maybe everyone else who's been observing this process, your comments up to date and even one of the commissioners is in conflict with what you believe. >> before the president made his comment we were working on a title two and section 706. after his comment we delivered it. >> i think they strong armed you on september 6th. i mean it's pretty evident and everyone saw it. mr. chairman let me yield to you. >> could we put up the slide please. >> i want to know why you felt compelled to communicate with the white house about what the "new york times" is writing. this is back in april, 23rd. you start with this. the "new york times" is moving a story that the fcc is gutting the open internet rule. it is flat out wrong. unfortunately it's been picked up by various outlets and go through and explain it. and send to it jeffrey zooins. and then john podesta.

sorry, i should have had you on first e-mail. he writes back. brutal story. is somebody going to go on the record to push back? yes. and you i gave back a similar statement similar to what i e-mailed you. >> you are supposed to be independent and you are reacting with the white house on how to communicate on the pr of a "new york times" story? >> mr. chairman, i had said that we are going to reinstate the 2010 rules which the president had endorsed. the report in the "new york times" was saying he's not doing that. i was therefore responding and saying you should know that that report is not true. at the same point in time i have furnished you also e-mails to members of congress, democratic members of congress saying the

same point. and that was what this was. this was, look, the 2010 rules i stand behind. and i am not out in a campaign to gut them which is what was being reported in the press. and if i may. one of the subsequent e-mails i sent as you will recall was an argument that said oh wait a minute, this was mischaracterized. and that is what that exchange was about. >> and why are you redacting all of this in a foyia request? why is this redacting. >> how we respond to foyia is done by career staff not in my supervision based on long-standing procedures. i -- i can't answer why certain things are blacked out. >> this administration might want to take some lessons about foya and how to respond to it. because i'm tired of having the

heads of the agency saying oh i don't know anything about it. this is the public's right to know. and your organization is redacting this information. and it is wrong. i need a further explanation. when can you give a further explanation as to why these types of materials is redacted? what is a reasonable time to respond to it. >> i'll be happy to have the statutes work and provide that to you. >> by when. >> with expedition? >> can you give me a date? by the end of the month? is that fine? >> sure. >> we'll now recognize the gentle woman from the district of columbia. >> thank you mr. chairman. it's very hard to make a case against net neutrality. and these gentlemen don't want to go home and make that case so they are trying to make a case for example against hearing the opinion of the president of the united states. on net neutrality.

and this is a very important policy issue. it is inconceivable in our republic that the president would be silenced on it. and i ran an independent agency. i look to see what the rules were in this case. the fact that -- of administration weighing in on such a notion is not new, is it. >> no ma'am. >> in fact i was able to discover that presidents reagan, h.w. bush, clinton, george w. bush have all weighed in specifically on fcc policies in the past. is that not correct? >> yes, ma'am. >> i can understand that in such a case where there might be some appearance -- after all you are an independent agency and you must abide by that independence. that you would go to your office of legal counsel.

and as it turns out there is an office of legal counsel's opinion advising the then president george h.w. bush on whether it was indeed permissible for that president to contact the fcc to advocate for a specific position on rule making. is that not correct? >> yes, ma'am. >> now, because this is the president of the united states, you know, and not one of our constituents, it is interesting to note that there are rules about how this should be done. that needs to be laid out here since the president is being criticized, you are being criticized, the commission is being criticized. and that has to do with disclosure. the legal opinion stated whether or not these matters must be

disclosed in rule-making on the record. if they are substantial significance. is that not the case? >> yes, ma'am. >> the opinion also addressed whether it is permissible for the fcc to solicit the views of white house officials -- solicit the views of white house officials and whether these would be subject to public disclosure. is that not correct? >> yes, ma'am. so here we have rules saying yes you must -- yes, mr. president. we're not going to silence you on an important issue. but we're going to make clear

that your views are absolutely transparent. so there is no law prohibiting the fcc from soliciting the opinion of the white house. there are no rules. and it is in the discretion of whether the white house would have to -- whether the fcc would have to disclose that communication. is that not correct? >> yes, ma'am. >> the white house would be required to submit an ex parte filing only if its response was of substantial significance and clearly intended to effect the ultimate decision. is that not the case? >> yes, ma'am. >> did not the white house submit an ex parte filing on november 10, 2014? >> yes, ma'am. >> mr. chairman, i submit that that has been the -- the rules have been followed to the letter. this has been openly transparent matter. the president was not and should not have been silenced. if there were americans wanting to submit their opinions, you can imagine that those americans

would also want to know where the president of the united states stood on this matter. and i thank you very much and yield back my time. >> thank you. mr. wheeler. when you come into your office you are sworn in. is that right? >> yes, sir. >> and you have an oath that you have to adhere to, is that right? >> yes, sir. >> and during this process, this entire process, you have -- just tell us whether you believe that you have upheld your oath. >> yes, sir. >> every syllable. >> yes, sir. >> could i enter into the record of opinions of some who have submitted them. civil rights and other organizations of various kinds to the record, mr. chairman? >> without objection, so ordered. would now recognize the gentlemen from michigan for five minutes. >> thank you mr. chairman. coming from the auto capital of the world. let me for the record also make a statement that i'll back up the reason i did.

the president was involved but it was not the president who saved the auto industry. it was the american auto worker who saved it and is doing that to this day. and also with internet. the president has his right to make statements. many people have right to make statements. congress has a right to make statements. the question is whose internet is it? i contend it is the american people's. it's wide open. it is broad and it's worked pretty well. this is not opening up in my opinion the internet. it is closing it down. mr. wheeler, on november 7th, going back to some earlier questions, the day after you were visited, the "wall street journal" reported that the fcc was likely delay net neutrality rules until next year. was there ever a time when the open internet issue was intended to be on the agenda of the public commission. >> i was trying to push for that -- >> what happened to push it off

the agenda. >> it was a bridge too far. >> bridge too far in whose mind? >> you can whip the horse but you can't make it go faster sometimes. >> but in whose mind was it a bridge too far. >> the staff. those of us trying to put it together. we just couldn't get the work done. >> when your statement announcing the new rules, you called a new rules historic and also, quote, a shining example of american democracy at work. if that is so, why did you not let americans see the rule before voting on it? >> oh golly, sir. we followed the process that has been in place at the commission for both republican and democratic chairman for recent memory. it was a matter of this is -- >> but the people never saw the rule. >> we were very specific in putting out a fact sheet and saying this is what we are

looking at. then we went into an editing process, which is not unlike, you know, a judicial kind of situation. >> but you went through that. >> going back and forth. >> you went through that in your opening statement, all of the process, giving them drafts and that is great. a little idea of where you were going. and that developed over time. but ultimately the language of the rule was not submitted to the americans -- to the american eyesight to view and ultimately comment on it. and why was that? >> that is the typical process at the agency, as it has been forever. is that a draft rule is put out by the chairman's office. and then the commissioners go into editorial negotiation, if you will. >> sure. >> over what the final rule would say. and that is normally a three week process.

that does not involve putting out the rule. >> but in light of the monumental process this was -- this is the most monumental change to the rules of internet in the history of internet. wouldn't you say? >> it is letting down, sitting down -- >> it's huge. >> -- sets of rules, yes. >> it's huge. and in light of that a motion that i feel back in my district and i'm sure everyone on this feels it in their district. people comment on it. you have over 104 million comments. from people and entities concerned with this issue. i don't understand why at the very last when you are going to have the rule written that it wasn't released to the public for the comment. would you do it over again and let them see it? >> no, sir. >> why not. >> it wasn't the final rule. there were changes made in the process. second of all it is against the

commission's procedures to do that and always has been. >> i don't know that to be true. in fact i would regard that as not true. with commissioner pai, he called. and i quote him. a monumental shift towards government control of the internet. in light of this monumental shift, what harm would come from letting the american public see the text of the draft rule before the fcc -- >> we didn't -- sir. >> vote. >> we put of specifics this is what it does. we then engaged as we always do in private in camera, editorial negotiations amongst the commissioners. we never put out a draft before those edits. >> that is not true. >> i'm sorry?

>> and the american public deserve the opportunity at this level, at this time period, to have comments and opportunity to push back. this was a shift, a monumental shift that should have had that oversight. and mr. chairman i yield back. >> i yield you had the discretion to make it public and chose not to correct. >> i have the discretion. it is not -- >> you have the discretion to make it public, correct? >> the answer is yes. can i -- >> no you can't. -- including senator obama who insisted on the openness when he was the senator. and they did it. they came and testified to congress. they made the rule open. they made a second comment period and you chose not to. >> i'm glad you raised that because i think that is more urban legend than fact. my understanding of the situation is as follows.

he wrote an op ed in the "new york times" in which he released two paragraphs of an order. he followed that with a press release in which he released one and a half pages of a 41 page section of 124 page item. that is a difference between releasing an entire item. >> he made himself available to congress. they went through his second. and what's startling to me and what's telling to me is that senator obama's position on this is totally different than president obama's position on this. time is expired. we're now going to recognize the gentlemen from virginia mr. connolly for a very generous five minutes.

>> thank you mr. chairman. mr. wheeler, chairman wheeler. is it unusual for an independent agency such as yours to communicate with the executive branch? >> no, sir. >> is it routine? >> yes, sir. >> does it compromise independence as you understand the word? >> no, sir. >> would you -- if we examined -- i mean, the chairman began his questions by reading off a list of meetings that apparently we're supposed to see as sinister. you or your colleagues meeting with various white house officials. would that be unique to your tenure as chairman? i mean we -- previous chairman never did that, is that correct? >> i haven't seen the logs. but i believe that every chairman has these kinds of meetings. >> is there something sinister in the timing of these meetings? so -- because i think the insinuation from my friends on the other side is meant to suggest that there is something really deliberately sinister

here. you are meeting with them either to tailor the rule or to get your instructions or to have some kind of quiet subversive conversation that obviously the public isn't aware of. is that what occurred? >> no, sir. >> did white house ever direct you in the wording, framing or content of the rule. >> no, sir. >> ever? >> even when they filed it was not a direction. it was a here is our opinion. which as i say is the same opinion as 34 members of congress -- 64 members of congress had been writing me to express and millions of americans had been writing to express. >> right. and as we just saw with a later to the ayatollah in iran, one doesn't want to always put too

much credence in letters from members of the congress. >> can i pass on that one sir? >> yeah i know. i thought i'd just sneak that in in my five minutes. okay. is there -- the chairman was just suggesting in his overtime that you could have waived the rule and by extension should have waived the rule to bring the public in in an earlier date in the draft or drafting of the rule. you -- your answer to that was a little bit like yes i have that power but it is not our practice. going beyond that, following up in the chairman's question, why looking at that ability to waive did you not avail yourself of it? there are many reasons why negotiations amongst commissioners ought to be in so, for instance, you put out

the draft, what do you do then two days later when paragraph 345 gets changed? you put it out again and say, oh, hey, look at this. how do you deal with the back and forth between various offices? how do you deal with ongoing research? use it right to have this kind of activity that can be very much affecting of capital markets out there, people misinterpreting what this or that is. markets crashing or inflating, whatever the case they be. it's for that reason, those kinds of reasons that foia in specific says these kinds of editorial negotiations are specifically not foiable because they are works in progress. that was why i made that decision, sir.

that's why that precedence exists, i believe. >> do you regret that decision? >> no, sir. >> from your point of view, by making that decision, you protect the the >> did you feel when president obama issued his statement with respect to net neutrality -- there were press reports at the time that you and your colleagues were surprised or taken a little bit off guard. >> mm-hmm. >> you may want to comment on that. did you view his issuance of a statement as undue interference in your process which was still under way? >> no. as we have with discussed, all presidents have had input to the process. in multiple administrations and multiple proceedings. it's not undue at all. >> not any different than

congress weighing in with letters or resolutions or hearings such as this. >> correct, sir. >> thank you. i have no further questions. thank you, mr. chairman. >> if the gentleman will yield, i don't know if we can put up this slide right here. i'm going to need a copy of that back. but your communications person in november, a couple days afterwards in response about were they surprised, did it have an impact, sharon gillson -- who is that? >> she runs the media operation. >> she wrote this question rankles me. did you take it as twisting the knife? i don't want to over react. i 'm ready to log a call. to suggest there was no rankling of the -- internally at the fcc, i think, certainly they are hailing back and forth.

again, this gets redacted. i don't see this as part of the public process here that warrants any sort of redaction. but just thought i would bring it up. >> would the -- >> since it's my time, if my friend would just -- i want to remind the chairman that's an interesting point. we had a virtually identical situation with jay george where there was a statement saying she was misinformed. if you are going to cite a immediate i can't person as corroborating your point i'm happy to do so. thousand i yield to mr. cummings. >> i just want to know if you have a comment with regard to what the chairman just said? >> i actually -- this is the first time i have seen this qa rankles me. i'm not sure what it is

referencing. >> who is the person writing that? what level are they on? >> shannon gillson is the head of the media office. >> thank you very much. >> now recognize the gentle man from texas for five minutes. >> thank you very much. i'm shaking my head at how this stuff happened. i remember in the 80s and 90s the internet activists, grassroots were fighting to keep internet service remaining classified as an information service and not as a telecommunications service and the marketing job to completely flip that is just staggering to me. i want to address something my friend from across the aisle just brought up. and that is -- i completely lost my train of thought. >> i think you were agreeing i had a brilliant point. >> i'm going on -- >> it's st. patrick's day.

>> on the public comment section, i remember where i was going. we're seek ing public comments on things that we don't though what we are seeking comments on. open government is about the people knowing the thought process that goes into creating rules and regulations. it's why we have with c-span. it's why anybody can turn on and see debate going on in congress and reach out to his or her congressman or woman and give comments. i'm really troubled. i think this isn't just the fcc. this is the executive branch agencies creating laws by regulation behind closed doors. you are defending doing it and i personally have a problem. the more we have on that, the better off a we are. something from a nonconstituent, then a form letter. then one of the things you clip.

is there a break down you would share with us of the public comment and how they fall within some sort of similar hierarchy. >> i know exactly what you mean, congressman. i get all kinds of notes that are -- that range -- >> i'm running out of time. can you provide -- >> i will try. i don't know if we can with break out 4 million comments. >> if it's done it's done. whatever information you can get to me. what y'all have done and i think we'll cover more of this in a judiciary committee hearing. i have two questions that are

burning on me. one is as you move internet service from an information service to a telecommunications service under title ii are we opening the door to applying universal service fund taxes to internet services? to broad band services? does this open the door to that? >> we specifically said we would not do that in this proceedings. there is an ongoing jointle federal, state board addressing that question. even if it were to happen in a hypothetical. that doesn't mean the total number gets changed. it just means the adviser gets -- >> do you feel these regulations of subjecting the retail internet service providers to more government regulation is going to encourage or discourage more competition in the field? >> one of the things -- one of the reasons why we were really focused on making sure there was no impact on investment capital

is because we want to incentivize investment. >> it seems like you are having to go through a tangle of government regulations and be a heavily regulated industry as opposed to hanging out the shingle, stringing wires or putting up a radio transmitter to do fixed broad band. >> so there are four regulatory issues in this rule. though blocking, no throttling, no pay prioritization and you must be transparent with consumers. those four seem well adopted in the republican bill that's been proposed. >> i guess my issue is my mom, before she passed 'way only used internet. i was tech support. so i wanted her to have an always on broad band connection so when her modem didn't connect i didn't get a phone call. it seems under this scenario she would have to buy -- there would

be no ability to buy an e-mail-only type of broad band service. >> that's absolutely incorrect. there is nothing we do with retail rate regulation. >> uh but her service provider. i couldn't buy something and say, i get my e-mail always on and fast but i will never stream a netflix video. why shouldn't i have the alternative to buy that? >> there is nothing that prohibits a service provider from that option. you can have e-mail only, say i want five meg bits, ten, 25. you can charge all different prices. >> it's speed only. >> there is nothing in this bill that regulates consumer rates. that was by design to go to the

core question of investment. consumer revenue it is day after this goes into effect should be the same as before. >> i disagree you will see limited in product offering. i don't like that at&t throttles my unlimited access after so many gigabytes. i could buy more for more money and do that. i want the choice. >> now the ranking member mr. cummings recognized for five minutes. >> thank you for your testimony. when i asked about taking an oath and whether you believe you adhered to the oath your answer was yes. i i'm just here to oh tell you i believe you.

i want to ask uh you are about the actions of the republican commission members. >> let's go to mike o'reilly, a former republican senate staffer who has been an active opponent of the open internet rule. is that a fair statement? >> yes, sir. >> when we requested documents from you we requested documents from the other commissioners, including commissioner o'reilly. and we received them. for example, we have now obtained an e-mail ex change between commissioner -- republican commissioner mr. o'reilly and three individuals

outside the fcc . they are robert mcdowel, a partner in the communications practice of a large lobbying firm that represents a variety of telecommunications clients. an economic consultant in the economics consultant in the communications sector. and the president of tech freedom. a libertarian think tank focused on tech policy issues. in this exchange, commissioner o'reilly sought edits. ought edits on a draft op-ed, he was working on opposing the open internet rule. chairman, were you aware at the time that commissioner reilly was having these private communications with these individuals. were you aware of oh that? >> no, sir. >> all three individuals have professional interests that could be affected by the passage of the rule. is that right?

>> yes, sir. >> in response to commissioner o'reilly's request, several of the individuals provided substantive edits. so many edits we apologized. writing, and i quote. i know it looked like a lot of red ink, but i really just triedy ed finesse, clarify, et cetera, end of quote. according to this e-mail chain, commissioner o'reilly then forwarded the edits onto the staff. he took a bunch and left out some stuff. chairman wheeler, commissioner o'reilly's op-ed was published may 5, 2014. that was his ten days before the notice of proposed rule making was published.

isn't that right? >> yes, sir. >> so these edits provided by outside parties seem clearly designed to affect the ultimate decision of the fcc. are you aware of any ex-parte filing regarding this e-mail exchange or the communications? >> golly, congressman, no. >> are you aware? >> no, sir. i i'm not aware. >> would it be normal for you to be aware is this. >> no. >> my staff went through all filings regarding the rule. all 750 of them. they could not find one, not one filed by any of the three individuals for the communications. do you know why that might be? >> no, sir. >> you just sat here and testified about how you need to

go about the rules and file the ex parte under certain circumstances. would you tell us how you feel about that? what you just learned. assuming it to be accurate. what i just told you. is that consistent with the way it's supposed to be? the way you are supposed to operate? >> i think it is fair to say that there is often a free and fluid back and forth between practitioners in the bar and members of the commission. >> do you think the ex-parte should have been filed? >> i don't know in this specific one with, sir. i don't want to sit here and hip shoot. i leave it to the experts. >> i'm not suggesting anyone be involved in such behavior but if the republicans want to accuse the president of undue influence

in this process, even when he submitted he did it the right way. an ex parte filing. they can't just conveniently ignore similar actions on the part of the republican side. there's something wrong with that picture. fairness, balance. i'm concerned about that. with that, i will yield back. >> i will recognize the gentle man from florida for five minutes. >> thank you. chairman wheeler, i want to go back to the wall street journal report. it reported that you and the commission were prepare ed to move forward on a hybrid 706--type approach. that was consistent with a lot of public reporting at the time. is it your testimony that that was not, in fact, the case, that you were not at that time leaning toward a 706 hybrid type approach? >> no. we have gone through the evolutionary process. at that point in time when we

were focused on a hybrid approach, that's a correct statement. >> okay. obviously something changed between october 30 and when you eventually submitted this rule. i think it's been pointed out how the president was forceful in making his ideas known did you know that when the commission adopted the rule. here i have 400 pages february 26th 2015, the democratic national committee tweeted congratulations for adopting president obama's plan. >> i found out afterwards. >> okay. so you know this is being reported as something that's the president's plan adopted by the commission. it's less that this is something the commission came up with on its own. you talked about the release of the report. the report could have been released in early february. the vote happened several weeks

after that. why not re-elise the proposed rule to the public given that this is something that, one, has a lot of interest. but, two, all the comment, all the period and input was done really before you had the movement to a title 2 framework. why not let the people see it. >> there are a couple of things here. first of all, let me be clear that your comment about a hybrid being on the table is correct. as were the other approaches to mr. jordan, the dayle following the journal article, the new york times reported that there were four. >> i understand that. with the transparency though, can you address the transparency? >> mr. conley and i engaged in this.

i did not release the draft order because it was the draft underlined order. i did take pains to have fact sheets and other outreach so the people understood what was in it. >> so let me clarify this. you are saying it's a draft order until the commission approved it and that's why you didn't release it? >> that's the way things work, yes. >> you could have released it. that's been made clear. particularly in this town the idea that we are just passing things to find out what's in things without the public having access to that. i don't think that works. let me ask you this. can you guarantee to the american taxpayer people who used broad band service that if this goes into effect they will not see taxes show up as contributions to the universal service fund. >> we have drafted this with two specific things in mind. >> can you guarantee -- >> i'm going to answer your question. >> that they will not pay more. >> we have said this doesn't

trigger -- >> one of the members dissented and said he believes title 2 imposes a statutory -- >> we are talking past each other. let me be clear. this is a specific point. the provision that would authorize us today in this rule making to do that. to have universal service. there is a joint federal state board. this rule making was clear to say that we do not thicker that. what's your concern. >> it doesn't foreclosure it. we are in title 2 framework, that opens the for this to happen depending on what's decided with that commission.

i just look, i want open, robust internet. when i see 400 pages of red tape, to me this doesn't seem what openness will be. the experience when the government gets involved. it will be more than four. government can get involved in other aspects of this. i'm out of time. i yield back. >> can i clarify one thing? there are eight pages offal rules in there. the rest is establishing the predicates and the background for instance for the court challenge. >> thank the gentleman from florida. we now recognize mr. lu for five minutes. >> thank you, mr. chairman. thank you for your service. i know you will testify on many

committees on capitol hill. i have heard a lot of back and forth today. i want to get on the record with the answer to the following question which is essentially was the process followed by the fcc in this case essentially the same process that the fcc followed in other prior rule makings? >> yes, sir. >> okay. in fact, in this case there was a lot of public comment. there is nothing wrong with a commissioner being influenced by public comment, right? >> absolutely. there is nothing wrong with a commissioner if a member of congress wrote a compelling letter to be influenced by such a letter. correct? >> i hope we we learn from the whole process, from the record being built. >> there is nothing wrong with commissioners being influenced by the president of the united states provided that the contact is a report and ex-parte filing. correct? >> we should make our oh decision independently on the

record that's been established by those who commented. >> the administration did file one. you can go look at everyone who filed ex-parte. >> yes. >> the president of the united states cannot fire you as a commissioner, correct? >>correct. >> wouldn't we want different folk s to weigh in on issues of this magnitude? wouldn't we want even to weigh in and make the decision? isn't that the way democracy works? >> it's the way democracy works, the way the administrative procedure act was structured to make sure that there was an open opportunity for notice and comment. and then make a decision based on what the record was. >> thank you. i yield back the balance of my time. >> if the gentleman will yield for a second -- similar to what you are saying, i think there is

room for everybody to weigh in. whether it's the president, a member of congress. it's about filing. that's what the gentleman is saying. i would hope we can find other people on both sides of the aisle. i do believe certainly the fcc and other agencies that maybe we should require by law that there be a 30-day notice. take the final rule, give it the light of day and let it be out there for 30 days. what harm would there be in doing that? i would appreciate if the gentleman would consider that. he's a thoughtful member and i appreciate the time. >> would the gentleman yield further? >> you have heard all of this, mr. chairman. i'm curious. when you hear the complaints back and forth and you're sitting here.

what i consider to be a hot seat are there things you would like to see us do either as the congress to bring more clarity or do you feel the process is fine just the way it is? because we want to be effective and efficient. we can't just keep going on these merry go rounds over and over again. there will be controversial decisions in the future. going to mr. lu's comments, if there is guidance that we can provide that will get rid of any kind of ambiguity with regard to people wondering whether folks have crossed the line or that line. i'm sure you have thought about this a lot. i know you want to act in the best interest of the united states, our citizens and certainly your agency.

is there anything you can think of? >> i appreciate the question. my goal has been to make sure that i follow the rules. i don't make the rules or the regulations that interpret the statute. i try to follow them. you know, the administrative conference of the united states is kind of the expert agency when it comes to processes. and they and you, i think, have are a significant challenge in that the rules have to apply across all agencies, not just the fcc. and so far be it for me to get specific and say you ought to change section 2b3. but i see my job as trying to adhere to the statute and the rules put in place to deliver on

the concepts. >> as i recognize mr. walker here, i want to respond to what you just said and highlight again under the rules you did have the discretion to make it public and you elected not to. what congress should consider is compelling you to make that open and transparent. rather than just making it discretionary. now recognize the gentleman from north carolina for five minutes, mr. walker. >> thank you, mr. chairman. as a new member of congress i'm learning things every way. i already knew al gore invent ttd internet but i just found out the president saved the internet. is that a statement that's fair? do you think his involvement has saved the internet for the future? >> i think this is a bigger issue.

the internet is the most powerful and pervasive platform that's ever existed in the history of the planet. it has an impact on every aspect of our economy and every aspect of how we act as individuals. for that to exist without rules and without a referee is unthinkable. >> let me go back. you testified today you didn't feel obligated to follow the president's suggestions. what exactly was the president's suggestion? >> the president filed an ex-parte saying we should have title 2, and we did not follow that suggestion. we did title 2 plus 706. he didn't say we should do interconnection. we did interconnection. he did not suggest that we should have the scope of forbearance we had. >> i'm getting to the place as far as your interaction with him when you said he suggested. there were nine or ten trips to the white house.

do you remember which time it was suggested as far as if there was disagreement or agreement? >> you're saying there was no one on one suggestion with you and the president when it came to net neutrality discussion. >> that's correct. >> did you have an idea. let's go back to the pictures and obviously of the protesters that were there that morning. did you have an idea the protesters would be showing up? >> i was surprised, and if i spent less time brushing my teeth, they would have missed me. they barely caught me. >> you had no idea. you weren't tipped off they were showing up that morning. >> no. >> your posture has been called by some apologetic since the decision was made. why do you think that assumption is made. >> apologetic? >> yes.

there have been outlets that said maybe not backing on the decision but it doesn't seem as firm as it was. >> oh, my goodness. i hope this is not apologetic. i said in the press conference this was my proudest day in public policy. there is no way i'm apologetic. i'm fiercely proud of this decision. i believe it is the right decision and i believe it is an important decision not only for today but for tomorrow. >> you talked about it earlier that -- and i think this was our congressman mentioned this a little bit earlier. you talked about the wall streeter article was wrong. you may have addressed it a minute ago. can you tell me specifically, i believe that was your comment the "wall street journal" had it wrong. what did they have wrong? >> i was referencing the new

york times article the following day. as i understood in the wall street journal article and i don't have it but it's represented here. it said there was one solution on the table. the new york times the following day says there were four solutions on the table. >> which one is accurate? >> the times is correct. let me be are really specific. i have constantly said throughout the entire process that title 2 has always been on the table. i said in my testimony that we were looking at 706. title 2 in a hybrid. title 2 in 706 in not a hybrid and title 2 by itself. >> the appearance of an independent agency which you claimed, can you understand why people would have questions when there were meetings with the white house. is there anything the american people or congress can see there is a balance or input from the other side as opposed to just one particular partisan perspective.

>> during that period, i believe that i met more than three times as often with members of congress. my job is to take input. my job is to provide expertise on issues that are being considered. that kind of ongoing relationship with all aspects of government is an important role, i believe. >> thank you. i will yield back to the chairman. >> now recognize mr. watson coleman from new jersey. >> thank you very much. thank you very much for your testimony. thank you for your forbearance. and thank you for the fact that it seems that you responded to the enormous interests and concern with net neutrality.

i am aware of oh net neutrality on social media. i want to clarify a couple of things. first of all, with respect to the comment about perhaps we are to have a 60-day comment period after the final rule that would then make the final rule possibly not a final rule. i don't know how we would then determine it to ever become a final rule. you have been -- it has been stated that you have met with the white house on several occasions during what is supposedly a controversial period of time. was the issue of net neutrality the only thing you were doing during the period of time when you were considering net neutrality? were there a variety of other

issues you may have been meeting with members of the white house or at the white house and if so, just for the record, might you just want to share some of those? >> thank you, congresswoman. yes. so i met on national security issues. we met on trade related issues. cyber security. the e-rate, what was happening there. spectrum policy. the white house was obviously very, very much involved in implementing the instructions of the congress to repurpose spectrum. we had to work closely with all the agencies in the white house on that. and the spectrum options obviously as well. excuse me. i forgot to turn off my phone. >> thank you, mr. wheeler. that gives us an illustration of the variety of issues that you

had been addressing. we would love to have the opportunity to work on one thing at a time. we know you don't. the president doesn't. we know we can't. to suggest that's the only thing you were doing is certainly misleading. i believe a mischaracterization of your continued statements that you were not meeting on these issues. i have though reason not to believe you. given that this is a huge issue, that everyone wants access and net neutrality. it seems to me that you were quite willing to listen to more than 4 million people, what they had to say. to all of the motions that were filed for consideration including the president of the united states. i listen to him. i think he's quite brilliant

with great ideas for the country. i just wanted to thank you for the opportunity to hear your testimony and to be able to give you an opportunity to answer questions as to the kinds of things that are on your plate that you might have been discussing with white house. thank you very much. i yield back my time. >> now the gentleman from georgia for five minutes. >> thank you, mr. chairman, and mr. wheeler. it's been well established that there were not -- with many excuses but the fcc didn't report are various meetings with white house and white house officials. even though you did report to various lobbyists and activists and companies and so forth. that's well established here today. this doesn't seem at all as though transparency has taken place. when there is an area not

reported the appearance is there is something to hide and you are denying that today. is that true? >> yes, sir. there was no secret. could you -- i'm not sure i understood. reporting to lobbyists? >> ex parte type thing. we have 755 -- >> oh, when they would file. i'm sorry. >> yes. and there is no filing. >> i thought you were saying -- >> and -- >> no. >> it gives every appearance of secrecy rather than transparency. would you agree with that? >> i think it has to do with the fact that as the language of ex-parte is when intended to affect a decision and provide information of a substantial significance. >> that was significant. >> as a general rule if someone offers you an opinion you would not object to an opinion being offered to you, i'm assuming.

>> just a general rule. >> we all respect the first amendment. someone has an opinion you would feel free to let them have are an opinion. >> yes, sir. >> on the other hand, if someone or some group or whatever was with i trying to give directives to you or the fcc or whatever you would probably be outspoken against that action. someone is giving an opinion. but if someone wants to be intrusive and give orders that might be a different scenario. >> boy, did we get opinions on this. >> you mentioned a while ago the white house offered their opinion on this whole thing. i would like to put up a slide that we had earlier. e-mails to you.

the comment is spoke again last night with the white house and told them to back off. that sounds like a lot more than an opinion. typically you would not tell someone who was offering an opinion to back off. would you agree with that? >> i don't understand the word with, sir. >> you said you don't have a problem. there is no problem typically with someone giving an opinion. this is more than opinion. the comment is tell the white house to back off. there is hr more than just opinion coming prosecute the white house, it would appear. >> the other part is that i had at the same point in time 90 letters from republican members of congress. saying that i should not do title 2. >> i'm talking about this

statement right here. >> that's the best -- >> the white house. >> that suggests that title 2 is very much in the mix. if i can read this right -- >> it says spoke again last night with the white house and told them to back off title 2. went through once again the problems it creates with us. this is more than a an opinion. >> this is may. >> okay. as i indicate ed in may i was proposing that section 706 was the solution. i learned through the process of this long before the white house ever had their filing that section 706 was not the answer. >> but the white house was not providing an opinion. they were putting some sort of directives to do something otherwise they wouldn't have been saying comments to tell the white house to back off.

it was more than an opinion coming prosecute the white house. >> you know, i think you are reading into this. but the fact of the matter is -- >> why else would comments be to back off if it's just an opinion? if the white house is offering an opinion, no one with would say back off. there was more than an opinion that was being presented. >> with all due respect, that's your opinion. i don't think -- >> it's your e-mail. and the words "back off" are strong. >> i don't think it is conclusive that there is more than clearly just what is stated there. >> it says back off because this is creating problems for us. that's more than just my opinion. it's an e-mail. >> that's his opinion. >> we now recognize the gentleman from the virgin islands for five minutes.

>> thank you, mr. chairman and mr. wheeler for being here this morning. >> thank you. >> i think this is so important to understand the significant attention that this open internet order generated and that the interest is primarily in the process as opposed to the content of what the open internet is. having hearings regarding the process and whether or not you used your discretionary ability as opposed to a rule is something that i think is also very are interesting. i thought it would be important for us to understand the steps the fcc takes in that rule making process. now the official fcc blog contains a post from the general council entitled the process of governance, the fcc and open internet order.

and i ask unanimous consent to enter that post into the hearing record at this time. >> without objection. >> thank you. >> the general counsel begins by explaining the fcc seeks to, "create an enforceable rule that reflects public input, permits internal deliberation and is built to with stand judicial review." is it an accurate statement that that's the objectives, the fcc and rule making. >> yes, ma'am. >> after the public comment period the fcc staff review proposals in light of the public record. so we know the public comment period was actually even longer than normally is done. 60 days as opposed to 30 days you were required because of the volume and the interest of this. when was it done? the review beginning in light of the public record? >> the traditional way we do it is you have an opportunity to review comments and then you can review comment on the comments and review those. >> do you remember at what time

that was closed to begin the review process? >> i don't know the exact dates. i can get them for you. >> the proposed orders distributed to the other fcc commissioners for internal review and deliberation again. is that correct? >> yes, ma'am. >> what is that time frame? do you recall how long? >> three week bfrs the vote. that's by our own internal -- >> that's a critical portion of it, right? the commissioner's internal deliberations. >> yes, ma'am. >> before the vote to adopt the open internet order there were calls to disclose the order, right. >> that's correct. >> is it a general fcc policy to publically re-elise an order before the commission votes on it? >> no ma'am. >> what could possibly be that,

the issue of undue influence after the deliberations. what would be the reasoning behind that -- the rationale? >> the rationale is there is an ex tended period of comment and public debate. you get to a point in time where you are actually -- the rubber meets the road and you are drafting and going back and forth and ed ing a document that changes frequently as a result. that's something that's dynamic and not public. one reason you want to make sure you have the full participation of all of the commissioners. the opportunity to cause mischief in financial markets by misinterpretation of changing glad to happy. it is an issue. these have always been in camera kinds of editorial activities. >> even after the vote there are then additional steps taken before the order is final and ready for release, correct.

>> yes, ma'am. >> you followed those? >> yes, ma'am. >> that includes commissioners' individual statements with their opinions, further discussion and then the final cleanup edits, correct? >> yes, ma'am. when those final cleanup edits were made by the dissenters. >> mm-hmm. that was about midday. on the following morning at 9:30 we released the item. >> that was released march 12, correct. >> yes, ma'am. >> so is there -- it appears to be that you did not depart in any way from your rule making process in this respect, in regard to the open internet. it really has been a question to many people's minds and our good chairman and other individuals whether you used your discretionary outside of oh what is the general rule making. right? >> that's correct. >> if you used your discretion

we would be hearing about something else as to whether that was appropriate or not appropriate based on the president weighing in on something that had huge importance to the people of the united states. >> i can't comment on that hypothetical. the point of the matter is that we followed precedent and procedure that's been followed for years and years by both republican and democratic commissions. >> thank you very much. i yield the balance of my time. thank you. >> i think the gentleman from oklahoma, mr. russell, for five minutes. >> thank you, mr. chairman, and thank you mr. wheeler for your long and dedicated service to our country. it is office often thankless. while opinions may differ your dedication is appreciated. >> i recognize your badge. thank you for your service. >> thank you, sir. >> you stated an earlier testimony today that you came to an evolutionary decision because you determined it was reasonable

for isps but not reasonable for consumers with the ruling. is it not true federal taxes could be applied where they could be prohibited. >> that's this the hands of congress. you will get to decide that. right now the internet tax freedom act specifically prohibits that. whether that's changed is outside -- >> from an informational service to a communications service, by moving to title 2 does it not lay the foundation for consumers being taxed? >> again, that's going to end up being your decision, not mine. >> was it possible when it was just an information service outside of title 2? >> information services, some are taxed at state levels, i believe. some could be taxed at state

levels. it could because we have the internet tax freedom act on top of everything. so it cuts both ways. >> article 1, section 8 of the constitution states congress has the power to regulate commerce. double this? >> yes, sir. >> do you believe the public would have been better served by giving congress a chance to review the rules prior to their release especially in light of your testimony today where you said rules have to apply across all agencies and be considered. >> this has been, as you know a ten-year process where there has been multiple input by multiple congresses along the way. there will be -- there is legislation now which is entirely appropriate. our job is to take the instructions of congress as

stipulated in statute. and interpret them in terms of the realities of the day. that's what we did. >> the quote that i would like to read to you by a senior vice president of the communications company says the fcc today chose to change the way commercial internet has operated since its creation. changing a platform that's been so successful should be done, if at all only after careful policy analysis, full transparency and the congress which is constitutionally charged with determining policy. now you and your agency have established a clear belief that adopting these title 2 rules would create problems. as we have seen in some of the e-mail traffic we have reviewed today. you also stated in other e-mails

produced at a committee that you didn't intend to be a wallflower in your tenure at the commission. given the coordinated efforts and the pressure of the white house, the coincidentally timed protests and other white house statements, would it be unreasonable then for americans to somehow feel betrayed that this decision was a cave against your earlier judgment and damaged the reputation of the fcc as an independent agency? >> no. i also think it's important to go to your key assumption there, quoting this senior president. the interesting thing in this is that there are four bright line rules. only four rules in this order. no blocking, no throttling, no pay prioritization and transparency. all of the isps have been saying publically buying newspaper ads, running tv commercials, you know. saying, oh, we would never think

of not doing that. so when this person says it's going to change the basic operation of the internet, there is some kind of discord there, a disconnect. they are saying, oh, we are not going to do that. then they say, oh, but when they require we won't do that, that's changing the operation of the internet. that's a tension going through this whole thing. >> i would hope as we go through -- there will clearly be lawsuits in this process and continued discussion about it. we would make sure congress regulates commerce. i personally believe what we'll see follow will be taxation of consumers. had they known that, they wouldn't be so quick to click the internet like to get the 4 million comments. i think we have set back free information and access to all americans. i yield back the balance of my

time. >> we'll now recognize the gentle woman from michigan, ms. lawrence, for five minutes. >> thank you sh mr. chairman, and ranking chair. welcome. i appreciate you being here today. my friend, my colleague stated that there was a statement that you didn't intend to be a wall flower. i find that refreshing. those who take an oath to serve the people and to be part of a regulatory process should not be a wallflower. they should be actively engaged. i appreciate the passion you have distributed today. when i cape to congress i, too, heard a lot about net neutrality. i have done my homework and i came to congress with an open mind and willingness to see both sides of the issue. am also aware over 4 million people filed public comments

with the fcc. 4 million. most of them average people voting yes. i also saw the president's comments on this issue. so one of the things that i want to ask of you today is to really solidify you in this position. you were supported by telcom companies when president obama selected you to this position. is that correct? >> i believe so, yes, ma'am. >> and you were unanimously -- meaning both sides of the house, confirmed by senate as well. >> yep. >> so it was not just one side of the house, of the is that senate? it was both sides. >> no ma'am -- yes, ma'am. >> in 1986 to 1994 you worked for the national cable television association which is clearly representing these

agencies that would be affected and eventually became the president and ceo. is that correct? >> yes, ma'am. >> from 1992 to 2004 you served as the president and ceo of the cell, telecommunications association. >> yes, ma'am. >> clearly you would not be a wall flower. you know the industry well because if there was ever such a thing as an internet or isp you would know that. correct? >> i have spent my professional life in this space, ma'am. >> so would you -- knowing this, would you push for regultions that you were aware would damage the industry that uh you represented for so many years? so the decision and the

regulation that you advocated for, your position was this would not damage but enhance. >> thank you. that's a really good question. there are two answers to it. number one is that, yes, i was the chief advocate, chief lobbyist for those industries when they were growth industries, not the behemoths they are now but a different time. >> right. >> i hope i was a pretty good advocate. they were my client. my client today is the american consumer. >> yes. >> and that's who i want to make sure that i'm representing now. >> yes. >> doing that, you do not help the american consumer by cutting off the nose of those who provide competitive broad band service to spite your face. so what we were doing in this was balancing the consumer

protection with the -- with the investment necessary to provide competitive broad band services. i went back to my roots as the president of ctia when the wireless industry sent me to congress and said, we need to be regulated as a title 2 common carrier with fore barns and congress agreed with that. that's the rules under which the wireless industry, wireless voice industry since then has had 300 billion dollars in investment and become thor marvel of the world. so the answer is yes on both fronts. you can't help consumers if you are not stimulating broad band growth. but my job today is representing american consumers. >> just for the record, the questioning today is inferring that would you support

regulations and you eloquent li stated that there is a balancing of the information in your experience. bring you to this point. would you support regulations that would hurt isps just because the white house thought it was a good idea? >> throughout this process i have been trying to be very independent and very thoughtful. >> lastly, do you honestly believe the net neutrality will stifle innovation, hurt access or oh hinder the growth and development of the telcom industry, given your 40 years of experience? >> no, ma'am. it's not just my opinion that counts however. when major internet service providers like sprint, t-mobile, frontier, google fiber, like hundreds of rural providers say that they, too, believe they will be investing and continuing

to grow competitive broad band. i believe that's a reinforcement of this point. >> thank you for your service. i yield back my time. >> thank you. >> thank you, we'll now recognize the gentleman from alabama, mr. palmer, for five minutes. >> thank you, mr. chairman. thank you, mr. wheeler, for testifying. you claimed it was the most open and transparent rule making in fcc history. is that correct? >> yes, sir. >> you have claimed in your testimony that all of your communications with the white house were properly accounted for with ex-parte filings. is that correct? >> yes, sir. >> would you put up the slide, please? we have a slide.

while they are working on that slide, i have here a copy of your ex-parte filing for the president's statement on net neutrality. are we left to believe that the entirety of the white house's involvement can be captured in just three sentences? >> i'm now being passed. thank you. this is the -- this is the letter on november 10. >> yes, that's correct. >> and i believe it has then a two-page attachment with it that gets quite specific and says what bright line rules should be and things such as that. that wireless should be covered and things like that. i think that's the -- >> do we have that? >> they're working on getting it. but i believe the portion that deals with this topic is as the gentleman says three sentences. >> three sentences yes. >> i disagree respectfully, sir. they put in here the entire statement of the president in

which he was saying this is what i think we ought to stand for. >> if the gentleman will yield are you -- are you telling us that jeffrey came over to meet with >> i don't think that was the question. maybe i'm confused here. mr. palmer. >> let me be a little more specific. your calendar shows in february 2014 you had two phone calls the same afternoon with the counselor to the president, mr. podesta, is that correct? >> if the calendar says that i don't recall talking to mr. podesta, but if the calendar says that. >> you don't recall talking with mr. podesta say, cue give us an idea -- do you have any recollection of a phone call with mr. podesta on that day? >> if the calendar says sir,

i'll stipulate to it but, you know let's -- >> do you recall talking to the white house office of science and technology? >> i've talked to them yes, multiple times. >> can you give us an idea of what was discussed in either of those calls? >> i don't recall -- what was the date you were specifying? >> last year, february of 2014. >> i don't recall the specifics of that call were. i don't recall it. >> do you have a recollection of having those calls? >> if my calendar says, then you know, i must have. i don't have a recollection of it. and the other thing s you know there's a whole bunch of things that are going on that -- that are relevant but i don't know what we were talking about. >> if it shows up on your calendar and you are having a

difficult time remembering the calls and certainly the content of those calls should -- should either of those calls have been recorded as exparte contacts? >> i think there's two answers to the question. one, i -- i don't recall the content. secondly, as we've discussed previously there are specific guidelines as far as ex parte guideline rules. thirdly, that there is and has been since the first bush administration ruling contact with the bush administration and the congress are not exparte. >> last question here. what other contacts do you recall that you've had with the white house staff prior to the april 2014 e-mails that have been publicly released? >> i -- you have my calendar and

you have my e-mails. >> mr. chairman i yield the balance of my time. >> now recognize the gentleman from california for five minutes. >> thank you, mr. chairman. mr. chairman, i just want to thank you for your service and i -- and i'm tremendously proud of not just your decision but also your testimony today and how you've handled yourself, particularly as one of my colleagues have pointed out, your background. and coming from the san francisco bay area obviously, the importance to innovation for us and having many constituents and friends who work at companies like facebook and google and apple, we want to make sure we get it right and also having a presence in my district of at&t and comcast i understand the balance you had to go through. and i also understand the importance of the balance of your independence and expertise of independent commissions and

their relationship with the administration and congress. and i actually think that there is obviously, a very strong argument to be made that someone like yourself and your staff are more appropriately situated to avoid some of the politics and make these decisions. having said that, i was particularly taken by your comments to one of the questions about whether you were, by appearance, looking like you were sort of second-guessing your decision and your vote and your response to that i thought, was very forthright and very -- very determined and clear. so, that was to the decision. knowing that the process is probably as important as the perspective of the process is as important as the actual decision-making, how would you respond to the question of are you equivocating about your concerns about the questions you're being asked and the process? >> so, i believe that we handled

this congressman, as -- just as any other issue that comes before us, whether it's exciting and headline grabbing like this or much more mundane things we normally use that we use the established procedures and precedence very religiously. >> so, would you say that your comments about your pride in the actual decision-making you feel equally as proud as the process? >> i think the process works, sir. >> okay. so, you commented about the number of the input from the public the 4 million comments. would you adescribe a reason for that? i've gotten lots of input i know we all have from average, everyday citizens. would you ascribe a motivation? >> you know, i think that the internet touches people's lives

more than any other network probably in the history of mankind. and everybody -- believe me, everybody has an opinion about the internet. everybody wants to talk about the internet. and so when you begin addressing issues such as will the internet continue to be fair and fast and open, those are things it doesn't take an engineering degree or computer science degree to be able to understand. those are things you can understand that affect people individually. and i think that's why we had this kind of response. >> i appreciate that. it's interesting sitting in this room and seeing behind you a picture of the connection of the transcontinental railway. when you look from an historical perspective of how government and the federal government has handled what would be considered assets of the commonwealth but also wanted to be fair to the people investing from the private sector, whether it was railroads or television or the

media, from your perspective is who benefits and who does not. and usually the poorest americans have benefitted the least, at least in the short term. do you have any comments about this rule-making and the digital divide? will it help eliminate that or by not doing this and having sort of an opposite rule-making, how it would affect the poorest of americans. >> if you do not have access free, fair and open access then you, per se, have a divide. and so when we come out and talk about how there needs to be no matter where you are no matter what legal content there is that there should be open access to it that's the predicate to

not having a divide. not saying there aren't challenges we will continue to face but that the baseline is there has to be openness. >> thank you, mr. chairman. >> thank you. >> thank the gentleman. now recognize the gentleman from iowa, mr. blum, for five minutes. >> thank you, mr. chairman. thank you, chairman wheeler, for being here today and sharing your insights with us. i must admire your green tie. obviously, i did not get the memo. it is that day. >> yes. >> i have a general question -- >> grew up with an iowa woman who is big into irish. you make sure that you wear a green tie, sir. >> well said. i have a general question and then a more specific question. in your opening statement you mentioned one of the fcc's goals, make sure i get this

correct, is to protect the open internet as a level playing field for innovators and entrepreneurs. mr. wheeler i am one of those in innovators and i am one of those somewhere practice entrepreneurs. i've seen firsthand what happens to private and free marketplaces when the heavy hand. federal government gets involved. and typically what happens, we see less innovation we see lower qualities we see higher prices, higher taxes. an example of that recently is the affordable care act. which was supposed to help level the playing field for small businesses. and we've seen there that higher prices, less innovation, higher taxes. my question to you, and a question i get asked in iowa often, mr. wheeler is what steps is the fcc going to take to ensure -- to ensure that the internet remains vibrant

innovative and open when history, once again, has shown us when the heavy hand of the federal government gets involved in a free and vibrant market, bad things happen. >> thank you, mr. blum. first of all i'd like to identify with you as one entrepreneur to another. i, too, have been a small businessman. i've started a half a dozen companies, some worked, some didn't. >> that happens. >> you understand that experience as well, i'm sure. >> and for a decade before i took this job i was a venture capitalist who was investing in early stage internet protocol based companies. and so i know both personally from my own enter practice neural experience as well as from my investing experience, that openness is key. if the