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Why the Senate Should Reject Tom Wheeler

Another Industry Crony at the FCC?

by B. BLAKE LEVITT

President Obama’s nomination of Tom Wheeler to head the Federal Communications Commission (FCC) is the height of cynical cronyism and industry-pandering. He should not be confirmed.   Obama, in fact, could not have found a worse nominee than Tom Wheeler to head this most significant regulatory agency – one with long tentacles into all our lives whether we know it or not. Wheeler is the last person who should have his hands on the levers of the FCC, though he’s been aching to do just that for decades.

Wheeler has far too many conflicts of interest and industry biases to head the FCC. The FCC, regulates the nation’s airwaves and all communications plus its accompanying infrastructure, including all broadcasters, cable companies, telephone-service providers both wired and wireless, satellite communications and the Internet. FCC is at a crucial juncture regarding decisions on new airwave auctions, further media consolidation, net neutrality, and most importantly the updating of the nation’s obsolete exposure standards for radiofrequency radiation. The stakes are high. These decisions will affect all U.S. citizens for decades to come in ways great and small.

Below are 12 good reasons why the U.S. Senate* should reject Tom Wheeler:

1. Wheeler’s financial conflicts.  As the managing director of Core Capital Partners LP in Washington, D.C., Tom Wheeler helps manage a $350 million venture capital firm that invests primarily in the high-growth technology sector – all with potential business involving the FCC. Founded in 1999, Core Capital has invested in over 45 companies and partnered with over 100 others with a focus on wireless information technology, communications, infrastructure, security, cloud-based software, digital media and technology-enabled service areas. Examples of Core Capital’s investments include PureWave Networks, which develops outdoor base stations for the 4G wireless networks; Twisted Pair Solutions, which makes mobile communications software interfaces, BridgeWave Communications, an outdoor gigabit wireless infrastructure/interface company, among many others. (See: http://www.core-capital.com  for portfolio information.)  Nearly all of Core Capital’s clients rely on friendly FCC regulation, lax radiofrequency radiation exposure standards, or more importantly no regulation at all. In 2008, FierceWireless included Tom Wheeler in their top ten all-time list of people who helped shape the wireless industry. Wheeler is on a mission and it goes way beyond regulating the quality of our connectivity.

2.  Wheeler’s professional conflicts/bullying. Wheeler headed two major industry trade groups: the National Cable Television Association from 1979 to 1984, which includes the largest US cable companies — Comcast, Time Warner, and Charter Communications; and the Cellular Telecommunications & Internet Association,  now called CTIA – the Wireless Association, which includes the four biggest wireless companies — Verizon, AT&T, Sprint Nextel, and T-Mobile USA.  CTIA, founded in 1984, includes not only wireless carriers, but their suppliers, service providers, and manufacturers of wireless data services and products. CTIA advocates at all levels of government and claims to coordinate the industry’s voluntary best practices and initiatives. Their behaviors indicate otherwise, however, and Tom Wheeler set their tone years ago. In 2010, CTIA sued the city of San Francisco over that city’s first-in-the-nation law that point-of-sale information regarding a cell phone’s radiofrequency radiation level, and its specific absorption rate (SAR) be made available prior to sale. It also required a handout be made available saying that the World Health Organization determined radiofrequency radiation to be a 2B possible carcinogen. It was a simple right-to-know law containing the same radiation exposure information buried in company literature deep within the box, available only after purchase. (Increasingly that information is now available only online.) CTIA sued on First Amendment grounds. Apparently making them tell the truth goes against their right to obscure. The 9th Circuit Federal Court agreed with CTIA and on May 7, 2013, the San Francisco City Board of Supervisors revoked the law because they did not want to open taxpayers to a potential $500,000 penalty in attorney’s fees for CTIA. They were also humiliated into accepting a permanent injunction against the right-to-know ordinance just to make sure they didn’t come back with anything similar in the future. Despite scores of letters and petitions from across the country encouraging San Francisco to stay the course, CTIA’s bullying worked.  http://news.yahoo.com/san-francisco-surrenders-fight-over-cell-phone-warnings-124624361.html And for good measure, CTIA not only sued but also moved CTIA’s annual conference, traditionally held in San Francisco, to Texas, thereby taking significant revenues out of the California economy. These are all punitive tactics, honed under Wheeler while at CTIA and continued by his predecessors.  Other states are considering similar legislation. On May 2, 2013, Rep Andrea Boland (D) Maine reintroduced The Children’s Wireless Protection Act. It would require that retailers provide a flyer stating the same information about the World Health Organization’s classification, require that manufacturers’ manuals provide language to avoid direct cell phone contact with the head and body, as well as information on how to reduce excessive exposure, if one chooses, such as limiting use by children, keeping a phone away from reproductive organs, and operating it with a wired headset. The bill would also require retailers to label cell phones at point of purchase with stickers stating the following: “This device emits radiofrequency electromagnetic fields. Avoid direct contact.”  (Full text: : http://www.mainelegislature.org/legis/bills/bills_126th/billtexts/HP071101.asp) Rep. Boland says it’s time to give Maine constituents fair warning of the serious, potentially lethal ramifications of cell phone use, now associated with gliomas – the deadliest form of brain cancer, among other problems. But the ruling in San Francisco has had a chilling effect, just as intended by CTIA. Boland’s bill was tabled until further notice on May 8th . Pennsylvania, Oregon, New York and others are also considering such legislation.  Hopefully these other states will have more pluck than San Francisco. CTIA’s aggressive behaviors are well documented and were considerably ramped up under Tom Wheeler’s long tenure. He will institute those behaviors in favor of industry if affirmed at the FCC. Expect an FCC ruling that makes point-of-sale information illegal at the state level, a lot more litigation, and bullying.

3.  Wheeler’s political conflicts. Tom Wheeler was a top fundraising bundler for President Obama, raising more than $500,000 in 2012, and from $250,000 to $500,000 for the 2008 campaign. Wheeler has made at least $172,524 in campaign donations since 2007, all to Democratic candidates and party committees. He donated the maximum allowed to both of Obama’s presidential campaigns, and the maximum $30,800 to the Democratic National Committee in 2011 and 2012, according to the Center for Responsive Politics. Time Business & Money called Wheeler a “true believer,” noting that Wheeler and his wife went door-to-door for Obama in Iowa.  (http://business.time.com/2013/05/02/tom-wheeler-former-lobbyist-and-obama-fundraiser-tapped-to-lead-fcc/). His nomination reeks of a quid pro quo.

4.  Wheeler would increase radiofrequency radiation exposures.  After decades of unchecked wireless exposures, continued concern about safety, and three law suits, the FCC is finally reviewing their obsolete radiofrequency (RF) safety standards, instituted in 1996 — 17 years ago — but which even back then did not take any studies past 1986 into consideration. Thousands of studies have come out since that time, many indicating adverse effects. (See www.bioinitiative.org) This FCC review affects all aspects of modern life, from broadcast to broadband, cell phones, wifi, smart metering — virtually all wireless products and infrastructure. The CTIA recently released its 2012 year-end survey. There are now more wireless subscriber connections (326.4 million) in the U.S. than people, and more than 300,000 cell tower sites. That is a tremendous amount of RF exposure to the population that simply did not exist as little as 15 years ago. Concerns over the safety of this area of the electromagnetic spectrum precede the CTIA and were long known in the science community. Wheeler, as director of CTIA, oversaw a $25 million research debacle that ended in more – not less – controversy, with virtually no research produced. The project was widely considered in the press to have been a “manufactured doubt” program, intended to contaminate the database with negative studies,  prevent clearer understanding and therefore better regulation. Today increasing research from all over the world indicates possible cancer risks among many other physiological problems from mobile-phone use, accompanying infrastructure, and myriad consumer wireless products.  In 2012, the World Health Organization’s International Agency for Research on Cancer (IARC) classified radiofrequency radiation as a 2B possible carcinogen along with lead, formaldehyde, mercury and DDT. Many European countries and professional organizations now recommend the precautionary principle regarding these ubiquitous exposures, especially for children. Wheeler’s entire professional career rests on the assumption that the exposures at current levels are safe, despite mounting evidence to the contrary. The current FCC standards are based on a high-intensity, short-term tissue heating model that does not reflect today’s long-term, low-level, chronic non-tissue-heating exposures found to be every bit as biologically active. In addition to the FCC’s narrow, ineffective focus, today’s standards do not take cumulative exposures from myriad wireless sources functioning at the same time, such as in the average home or workplace. Plus the FCC categorically excludes whole swaths of technology from review if those products meet certain exposure thresholds. The entire model is completely inadequate to protect the public health. Industry is pushing to make the standards more lenient. In 2012, the Government Accountability Office (GAO) released a report after spending a year researching the health aspects of cell phone usage that stated the radiation limit needed to be reevaluated. At the time of the report, the FCC had the SAR (specific absorption rate) set at 1.6W/kg (the amount of energy absorbed by a unit of tissue). The FCC reevaluated the radiation limit after the GAO report was published, and recently published its own response. FCC states that the SAR limit will stay the same. However, the outer part of the ear has been reclassified as an “extremity,” a designation that legally allows it to absorb more radiation under current specifications. This is going in the wrong direction.  In 1999, a cheery-picking Wheeler said “responsible scientific studies hadn’t found a connection.” He will likely maintain that stance and the public health could be in serious jeopardy, given the popularity of wireless products. Wheeler would have the ability to not only relax the standards further and grant more categorical exclusions to the very industries he has promoted, funded, and made a fortune from, he would also control any future recommendations for cell phone exposures, especially among children who are known to be more susceptible to such damage. These factors alone should disqualify Wheeler for the chairmanship. While at the CTIA, Wheeler lobbied hard to make sure Congress would set no limits on cell phone use of any kind. He’s not about to stop now.

5. Wheeler would erode local cell tower siting rights and endanger public health. When Wheeler was at CTIA, he was among the industry architects who wrote Section 704 of the Telecommunications Act of 1996 that prohibited state and municipalities from siting towers based on the environmental effects of radiofrequency radiation – a health and safety jurisdiction long exercised at the local level. He asked FCC to preempt all local rights in cell tower siting; make illegal temporary moratoriums on tower construction while communities created effective zoning regulations; make it illegal for communities to require that cell providers prove they are in compliance with FCC exposure standards; make it illegal to even mention health or environmental concerns at public hearings – against First Amendment rights to free speech – and he pushed back communities seeking legal redress in federal courts. Wheeler’s appointment would be a blow to what little power is left regarding state and local rights in their time-honored legal zoning responsibilities to protect public health, safety, and welfare. Wheeler would give the telecoms the right to site infrastructure anywhere, anytime, without local or state review. His appointment could open new areas of litigation. Unsafe infrastructure siting potentially endangers public health and property values and constitutes an illegal taking against the Tenth Amendment of the U.S. Constitution.

6.  Wheeler would abandon landline networks. This is a critical time for FCC decisions that will affect wired v. wireless networks and all information/entertainment/voice delivery choice for consumers. Despite Congress’s desire for more diversity in communications services, Wheeler in 2011 advocated for total deregulation and to let AT&T buy the smaller wireless competitor T-Mobile USA Inc. Both the FCC and the U.S. Justice Department opposed the merger and AT&T abandoned the plan. It is well known that AT&T wants to abandon its entire landline network in favor of an all-wireless network – this at a time when safety issues are on the table regarding wireless exposures. FCC granted them permission to do that and AT&T is currently trying to enact that plan in numerous states now, despite the fact that 1-in-5 Americans rely on landline networks for voice, DSL Internet, and 911 emergency provisions. Landline networks, proven time and again, are far more reliable and secure than wireless networks. Wheeler’s appointment would accelerate, and greatly favor the wireless industry over the harder, safer landline system. The U.S. should be favoring fiberoptic networks like countries throughout Europe and Asia for primary connectivity at all levels.

7.  Wheeler would increase media consolidation. Further media consolidation could erode press diversity. As president of the CTIA, Wheeler in 2001 pushed to eliminate limits on how many airwaves a company can hold in a given city. The FCC is currently considering whether to revise the limits again. Wheeler’s confirmation could further damage media diversity and reduce the number of independent voices intended by Congress.

8. Wheeler would decrease consumer choice. Wheeler has a decades-long track record of favoring wireless over wired networks. He will bring that bias to the critical balance in today’s entertainment/communications market between cabled networks and wireless companies. He will decrease, rather than increase, consumer choice – Congress’s clear intent — and push for deregulation at all levels, using the federal cudgel over state decision-makers. All wired networks will likely suffer under his bias.

9. Wheeler would oversee huge spectrum auctions. If appointed, Wheeler would oversee 120 megahertz of spectrum auctions of airwaves to be voluntarily relinquished (at a price) by television stations after those stations went to digital formats. These are the public’s airwaves. Originally, that frequency spectrum was promised to local emergency first responders. But it will now be auctioned to the major telecoms for 4-G high-speed wireless Internet service and mobile broadband. This will bring an increased layer of radiofrequency radiation to the environment/public at a time when safety concerns are paramount and the FCC is reviewing its standards. Wheeler would oversee almost one quarter of the airwaves that Obama set as a national goal and a huge swath of spectrum would be in the hands of a consummate industry insider who has fought against the public interest at every step.

10.  Wheeler is known for cronyism. On his blog in 2011, he called AT&T’s Senior Executive Vice President Jim Cicconi, one of the smartest, shrewdest policy mavens in the capital and added that merger deliberations could create a new era of wireless policy according to Cicconi’s ideas. Wheeler will bring this bias and years of insider relationships to the FCC – against the public’s best interests.

11. Wheeler’s appointment would further lower the bar on the ‘revolving door.’  Reed Hundt, the former FCC Chairman during the Clinton Administration, serves on Wheeler’s Core Capital Partners board of advisers – the man whom Wheeler once repeatedly petitioned for more lax standards and regulations when Wheeler headed the CTIA. Now both men stand to profit from Wheeler taking the helm at the FCC and relaxing regulations further.

12.  Wheeler’s conflicts perfectly match FCC’s authority. At a time when the FCC has pushed for increased wireless broadband in rural areas, and Congress has awarded tax payer dollars as incentives to large communications companies to serve those areas, Wheeler would be in the position not only to affect the nation’s infrastructure and radiation exposure standards but to direct all regulatory power to financially benefit friends and former clients.  FCC regulates broadcasters, cable companies and telephone-service providers – all of which intersect with Wheeler’s background.

Voters should urge the U.S. Senate Committee on Commerce, Science and Transportation to reject Tom Wheeler. If Wheeler’s nomination gets out of committee, voters should petition their  Senators to vote against this cynical power-grab by a longtime industry insider and find a more suitable candidate. President Obama needs to get the message that our regulatory agencies are off-limits to conflicted industry insiders once and for all. Wheeler has long had his camel’s nose under the tent at the FCC by being on an important FCC’s advisory panel. But it’s one thing to ask industry insiders what their opinions/preferences are. It’s another to hand the whole kittenkaboddle over to them.

Mignon Clyburn, senior Democrat on the FCC commission, will serve as acting chairwoman until a permanent chair is appointed. Thirty-seven U.S. Senators in a letter urged President Obama to nominate FCC Commissioner Jessica Rosenworcel as chair.  She would be the first woman to head that agency. Rosenworcel has nearly two decades of experience in telecommunications and media policy in both the public and private sector and received wide bipartisan support during her confirmation to the FCC last year. She carries none of the overt conflicts or insider cronyism that Wheeler does and unlike Wheeler, has a solid background in communications law. She is acceptable to industry and public interest advocates alike and would likely be confirmed. Those 37 senators should be urged to stick to their guns and to enlist their colleagues to support her. The first step is to reject Tom Wheeler. We can — and should — do better than this.

B. Blake Levitt is an award-winning medical/science journalist, former New York Times contributor; author, Electromagnetic Fields, A Consumer’s Guide to the Issues and How to Protect Ourselves; and editor, Cell Towers Wireless Convenience? Or Environmental Hazard? (www.blakelevitt.com)

*Wheeler’s nomination must first pass the U.S. Senate Committee on Commerce, Science and Transportation, chaired by Senator Jay Rockefeller (D) West Virginia, before going to the full Senate for a vote.