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The two Republican members of the Federal Communications Commission have refused to give Congress documents needed to complete an investigation into the FCC's net neutrality rulemaking process, according to a lawmaker.

"Your refusal to cooperate with the Committee's request is unacceptable, it obstructs our investigation, and it prevents the Committee from having a complete or accurate understanding of the circumstances surrounding this rulemaking," US Rep. Elijah Cummings (D-Maryland) wrote in a letter to FCC Commissioners Ajit Pai and Michael O'Rielly yesterday.

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There are "serious questions" about "Pai's efforts to organize opposition to the proposed rule with outside parties," Cummings' office said in a related press release.

"Pai previously worked as associate general counsel for Verizon, one of the major opponents of the open Internet policy, and he reportedly 'enjoys the support of conservative think tanks like the Phoenix Center, the Free State Foundation and TechFreedom,'" the press release said.

O'Rielly wrote an op-ed on the net neutrality rules in 2014, but only after he "sought edits on [the] draft op-ed from three individuals outside the FCC with professional interests that could be affected by the rule," the press release said.

Despite Cummings' concerns, the Committee on Oversight and Government Reform investigation was started mostly to investigate the Democratic members of the FCC. It began in February 2015, led by Republican lawmakers who opposed the FCC's decision to reclassify ISPs as common carriers and impose net neutrality rules.

The Republican lawmakers claimed that President Obama had "an improper influence" over the FCC's decision and demanded documentation of all communication between FCC personnel and the White House, as well as calendar appointments, visitor logs, and meeting minutes related to meetings with the White House, plus all internal documents discussing the views and recommendations of the White House. They also asked for all documents and e-mails related to views of FCC personnel about the net neutrality proceeding.

Pai and O’Rielly previously complained about secrecy

Pai and O'Rielly have each accused FCC Chairman Tom Wheeler of cloaking the net neutrality and other rulemaking processes in secrecy by refusing to release the full texts of proposals until after the commission votes. Wheeler says he is following the same process as previous chairmen, including Republican ones.

But when it came to providing documents requested by Congress, Wheeler and other Democrats obliged. "Although Democratic Members of the Commission have cooperated fully with our request, neither of you has produced a single responsive document to date, and even more concerning, your staff informed the Oversight Committee that you had not even begun to collect them," Cummings wrote to Pai and O'Rielly.

When contacted by Ars, a spokesperson for O'Rielly said his office will respond to the letter directly but won't make any public comment today. Pai's office has not responded to our inquiry yet.

The committee's first request for documents was on February 6, 2015, according to the Cummings letter. A few weeks later, the FCC's General Counsel consulted with committee staff "on the specific terms to be used to search for documents responsive to the Committee's request, such as 'open Internet' and 'net neutrality.'"

But Pai and O'Rielly stonewalled the requests in the months that followed, Cummings wrote. In May 2015, the FCC's Office of General Counsel told lawmakers that Pai's senior staff would not permit the General Counsel office to collect any documents "that are in his custody or in the custody of his staff."

"Despite this refusal, on June 10, 2015, Politico reported that 'Pai chief of staff Matthew Berry told [Politico] that the Republican commissioner is fully cooperating with the committee's probe and willing to make any requested documents available," the Cummings letter said.

In February 2016, committee staff held a conference call with Pai's and O'Rielly's chiefs of staff. In that call, Pai's chief of staff said that his office never conducted a search for the documents, the letter said. It continued:

Commissioner O'Rielly's Chief of Staff informed our staff that although his office did conduct a preliminary search for documents with the letters "NN" (for "net neutrality"), they discontinued this search when it resulted in a large number of documents because a member of his staff has those initials. Commissioner O'Rielly's Chief of Staff conceded that they did not use any other search terms, such as "net neutrality" or "open Internet," to identify documents responsive to the Committee's request.
Cummings asked Pai and O'Rielly for a response by Friday of this week, with a complete explanation of all steps taken to respond to the committee's request and a date by which the request will be fulfilled.

The documents sought by Cummings should theoretically be available to the public through Freedom of Information Act (FoIA) requests, though documents released to the public via FoIA are often heavily redacted. (Ars today made a FoIA request for these documents.) During a previous dispute over documents in 2011, Sen. Charles Grassley (R-Iowa) told then-Chairman Julius Genachowski that agencies "should generally provide documents voluntarily to members of Congress, especially if they would be required to produce the documents under the Freedom of Information Act anyway if requested by the general public."

Congress can use its subpoena power but usually does so only as a last resort after voluntary requests have been refused.

Cummings' office has not said what it will do if Pai and O'Rielly don't provide the documents to Congress directly.

UPDATE: A Cummings staff member told Ars that the "request has the backing of the full committee and all the enforcement mechanisms the committee has, including issuing a subpoena."

The committee has scheduled a hearing for September 27 on the status of outstanding document requests to different federal agencies, and could seek updates on the requests to the two Republican FCC commissioners at this hearing, a Democratic aide for the Oversight Committee also said.