As it is being applied today, the Commission’s existing rule intended to protect nonpublic information hinders Commissioners’ abilities to engage in the fulsome dialogue and obtain the data needed to most thoroughly and thoughtfully consider and comment on items. Moreover, it’s being applied discriminatorily as Commissioners are silenced while the Chairman, the Commission’s media relations team and select staff are not only allowed to openly discuss items, but also post blogs, tweet, issue fact sheets, brief the press, and inform favored outside parties about their content. While I’d prefer to make certain draft documents available to the public and will continue to fight for this, other changes could help improve transparency in the meantime. As a first step, let’s make it standard procedure that all Commissioners and their staffs can discuss the substance of items on circulation or a meeting agenda, minus adjudicatory law enforcement items. To effectuate this, the Chairman should provide blanket written approval to the Commissioners to permit open discussion about the items before us.
To understand the current situation, it’s important to examine the specific text. Section 19.735-203(a) of the Commission’s rules states that:
Except as authorized in writing by the Chairman pursuant to paragraph (b) of this section, or otherwise as authorized by the Commission or its rules, nonpublic information shall not be disclosed, directly or indirectly, to any person outside the Commission. Such information includes, but is not limited to, the following:
(1) The content of agenda items (except for compliance with the Government in the Sunshine Act, 5 U.S.C. 552b); or
(2) Actions or decisions made by the Commission at closed meetings or by circulation prior to the public release of such information by the Commission.
This rule is very straightforward, making interpretation fairly easy. Unless the Chairman authorizes the release of nonpublic information via written document, any person who does so is subject to disciplinary, or other remedial, actions. To be clear, this isn’t a forgotten provision of the C.F.R. with questionable applicability to Commission activities. In fact, the Commission actually reemphasized and strengthened this rule in 2000 in response to a supposed “leak” of market-sensitive information. And, when I specifically asked about the scope of this rule, I was told that it is interpreted to cover even the edits I suggest from time to time to improve a Commission-level item. To reiterate: I cannot discuss what is in an item or what edits I have sought.
It is common sense that, if the Commission wants the strongest and most defensible items, it needs to talk to the outside world, including interested and affected parties. This simple principle is embodied in the Administrative Procedure Act notice and comment rulemaking process. Similarly, Commissioners also need the opportunity to discuss ideas, problems, and alternative ways to do things than the prescribed proposal contained in any draft item. As it stands now, it is immensely frustrating to sit in ex parte meetings and be unable to test out other concepts and options or correct any misunderstandings of those in attendance. But if we were to have such conversations today, my fellow Commissioners and I would risk potentially violating the Commission’s disclosure rule by revealing nonpublic information about items. The end result is weaker Commission items.
The application of this rule in the current Commission serves as a roadblock to effective public participation and ultimately damages the FCC’s credibility as an agency. Specifically, the Commission staff, presumably at the behest of the Chairman, is conducting private briefings for select members of the press and favored outside parties. Numerous people can confirm that this occurs regularly. For instance, Communications Daily’s Special Report from December 17, 2015, outlines the Commission’s growing practice of holding off-the-record press briefings for items. To further illustrate the practice, the story reprints an FCC spokesman email as follows: “Briefings were conducted on ‘background’ by Commission staff to discuss open meeting items that had been circulated, but not approved.”[1] How can Commission staff hold such briefings on circulated, but not approved and released, items? Why does this not qualify as the disclosure of “[t]he content of agenda items” or “[a]ctions or decisions made by the Commission…prior to the public release of such information by the Commission”? How is nonpublic information not being disclosed? More importantly, why are Commissioners precluded from discussing the same?
Additionally, this Commission – or more precisely the Chairman or high-level staff working on proceedings – routinely puts out blogs and fact sheets to put its “spin” on the substance around the time when items are circulated to Commissioners for consideration. While some of these documents are nonspecific, others provide details about some of the draft proposals or decisions. As such, they represent and contain nonpublic information. For instance, the fact sheet for the recent set-top box NPRM clearly states that policy calls involving “emergency alerting, privacy and children’s advertising restrictions will apply.” Again, in fairness, I don’t have a problem with disclosing this type of material or promoting a preferred outcome, just let Commissioners do the same.
An argument could be made that the Chairman can authorize any briefing or blog, even if it discloses nonpublic information. However, the rule is quite clear: the Chairman must provide any such authorization in writing. Therefore, if this behavior is actually authorized by the Chairman, let’s see the official documents permitting it. Where are the letters from the Chairman that covered each and every release of such information at the time? While I suspect these letters don't exist, I am always happy to be proven wrong.
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[1] Communications Daily, Special Report, A Portrait of the FCC in a Partisan Era, at 7 (Dec. 17, 2015).