Wheeler Commission Has Many More Party-line Votes in Meetings Than Predecessors

There have been many more party-line 3-2 votes at FCC meetings under FCC Chairman Tom Wheeler than under former Chairmen Kevin Martin and Julius Genachowski, a comparison of such votes shows. Using records on the FCC's website and in the Electronic Comment Filing System, Communications Daily tallied votes at FCC meetings in 2008, 2012 and 2014. It found that in 2014, the Wheeler-led commission approved items at FCC open meetings with a party-line vote 11 times, compared with two such votes under Martin in 2008 and just one under Genachowski in 2012.

Some said there's a widespread perception that the agency is now more divided. But some, including Free State Foundation President Randolph May, were surprised by the extent of the rise in partisan votes. Though the commission hasn't had this month's meeting, the FCC is on pace for a similar number of 3-2 party-line votes this year; there have already been 10.

Since it includes only votes taken at open meetings during a single year of each chairman's tenure, the count is necessarily only a sampling. Industry and FCC officials told us the numbers match their perception of voting trends. For the purposes of the tally, only 3-2 votes that split along party lines were counted, and partial dissents along such lines were counted with full dissents. “Dissenting doesn't have to be perceived as divisive or partisan,” said former FCC Commissioner Robert McDowell, now a lawyer at Wiley Rein. “Expressing a contrary view is a healthy part of being in an open and free democracy. It can also pave the way for yielding more constructive ideas in the future."

Eighty-eight percent of votes during the first two years of Wheeler's tenure were unanimous, an FCC spokeswoman said. "Chairman Wheeler has tackled complex issues resulting in more competition, strong protections and improved access to networks for consumers." An FCC official from the chairman's office said Wheeler has been more active than previous chairmen, putting up 82 items for vote during his first two years at open meetings, vs. 57 items by Genachowski during his first two years and 53 by Martin in his first two years. Wheeler is willing to compromise, but he's not willing to let the search for compromise keep the commission from taking action, a former FCC official who worked in a Democratic eighth-floor office told us. Wheeler's opponents like the narrative that he's presiding over a more partisan commission, the official said, and may vote to further that narrative.

Some industry officials suggested the FCC's more contentious record under Wheeler stems from him having taken on more controversial issues than previous chairmen, and a higher quantity of such issues. But a spokesman for Commissioner Ajit Pai's office disagreed. Martin and Genachowski went out of their way to seek compromises between the parties, the spokesman said. Martin often started FCC meetings hours later than the planned start time because he was trying to negotiate a unanimous vote, the spokesman said. “There has been a sea change under Chairman Wheeler." Martin, though, got criticism from commissioners of both parties for other practices that were said not to be transparent.

It used to be more common for the chairman to seek bipartisan backing for items, said Public Knowledge Senior Vice President Harold Feld. The chairman would offer concessions and try to negotiate to get at least one vote from an opposing party commissioner so the approved item could be called bipartisan. Voting “in a block” is more common than it was, said Feld.

Feld and May laid part of the blame for the increase in party-line votes on political culture in Washington. In the past, issues of communications regulation weren't considered party platform matters, some said. But increasingly, matters such as net neutrality are seen as political issues, giving party affiliation more significance at the FCC. Feld said the vector for the increasing partisanship is the confirmation process. Legislators are asking for more commitments from prospective commissioners on how they'll rule on certain matters, or asking Republican commissioners to commit to limits on FCC authority, Feld said. Commissioners Pai and Mike O'Rielly often attack Wheeler's rulings on the basis that the FCC doesn't have the authority to do what it's doing, a point of view that makes it difficult to reach a compromise, he said. “The parties are so far apart on the basics of the FCC's authority” that it's hard to reach any kind of agreement, Feld said.

It's generally better when commissioners can negotiate with each other, Feld said. It becomes hard to have that back and forth unless you start in a position where you're willing to concede to the other side, Feld said.

The idea that FCC partisanship is being ramped up by partisanship in Congress is overblown, said the Pai spokesman. The year 2012 and its comparative dearth of 3-2 meeting votes wasn't very long ago, and it was a presidential election year, he pointed out. “I seem to remember 2012 being a pretty partisan year,” the spokesman said. “Commissioner Pai was on the commission then, and he was the same commissioner he is now. So what changed?”