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FCC emails: Agency may owe favorable judicial decision to 'nuclear option'

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*Must credit Complete Colorado*

Emails obtained by Complete Colorado from the Federal Communications Commission (FCC) show that the agency may owe a recent court victory to Senator Harry Reid’s application of the so-called “nuclear option,” which put more of President Obama’s judicial appointees on a faster track to the bench. Other emails hint that without the favorable ruling, the agency was headed for bureaucratic irrelevance.

The ruling was the final hurdle for the president’s “net neutrality” policies.

“In a 2-1 decision, a panel of judges of the U.S. Court of Appeals for the District of Columbia Circuit dismissed arguments by AT&T Inc., other telecom companies and industry trade groups that the Federal Communications Commission exceeded its authority in approving the (internet) regulations last year,” the L.A. Times wrote on June 14 of this year.

On the same day, Nevada Senator Harry Reid’s former chief of staff, David Krone, emailed FCC Commissioner Tom Wheeler celebrating the decision saying, “Guess Senator Reid changing the filibuster rules really does matter. Not sure the old DC Circuit would have ruled the same way.”

Chairman Wheeler replied, “Had a good conversation with Sen. Reid today, as you know. Yes, the new appointees to the DC circuit were important!”

The two men are specifically referencing a tactical move the former senate majority leader employed in November 2013 called the “nuclear option,” which lowered the number of votes needed for Senate approval of a judicial nominee* from a supermajority of 60 to a simple majority of 51. By lowering the threshold, the minority party – Republicans in this instance — is all but stripped of its ability to stop or broker compromise on any presidential appointee.

Former FCC Chairman Reed Hunt also emailed Chairman Wheeler to celebrate, saying, “In the annals of all agency decisions (not just FCC) in the DC Circuit this is one of the biggest victories ever.” However, Hunt struck a more ominous theme when he later wrote, “The alternative was that your commission would be put out of business…”

Prior to the 2-1 ruling this June, the DC Circuit court twice struck down proposed internet regulation by the FCC.

The pages of The Wall Street Journal all but declared that Reid and President Obama created the FCC court victory through new appointments.

In a June 15 editorial, The Wall Street Journal wrote, “Congress could pass a bill to restrain the FCC, but President Obama would veto it and the agency no longer follows the law in any case. President Obama and Harry Reid packed the D.C. Circuit with liberal judges precisely to remove the last check on rule by progressive decree. With the D.C Circuit in his pocket, the last check is the Supreme Court, and that may soon be gone too.”

The FCC declined comment on this story. Efforts to contact Senator Reid’s office and Mr. Krone were not returned. The emails described in this story were obtained via a Freedom of Information Act request.

*The “nuclear option does not apply to Supreme Court nominees.

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