O'Rielly Sees 'Decent Progress' on Freedom to Discuss Draft Items, Lauds Wheeler

Commissioner Mike O'Rielly says the FCC has made strides in resolving his concerns that commissioners faced censorship on pending agency items while Chairman Tom Wheeler and his staff were free to selectively disclose matters. "Thankfully, we've had decent progress toward fixing this one process area," O'Rielly said, responding to our query. However, questions remain about a leak that FCC and congressional Republicans say helped scuttle a bipartisan Lifeline compromise among commissioners March 31, which is being investigated by the agency's inspector general. Responses to a Communications Daily Freedom of Information Act request detail much late congressional lobbying of the FCC on Lifeline.

O'Rielly lauded Wheeler for addressing restrictions on disclosure of the content of agency draft items. "It has been clarified that my staff and I, as well as all Commissioners, are free to discuss and answer questions regarding the substance of Commission items with outside parties, without disclosing the actual draft text," emailed O'Rielly, citing Wheeler's statements at a March 22 House Communications Subcommittee oversight hearing and follow-up correspondence with the chairman. "Although this state of affairs differs from past [Office of General Counsel] interpretations of Commission rules, I greatly appreciate the willingness of the Chairman and my colleagues to take this important step toward greater transparency in the Commission's work. ‎Further, I have no intention of ever returning to the past gag order approach to Commission items."

An FCC spokesman emailed: “Nothing in the FCC’s internal procedures prevents Commissioners from expressing their views on the substance of a rulemaking. All of the offices have general discussions regarding matters before the Commission with public interest groups, the Hill and industry, and regularly give speeches and conduct press interviews while an item is on circulation.” Other commissioners didn't comment.

Hill Republicans continue to scrutinize FCC practices and the Lifeline leak. "FCC transparency has long been a concern” for House Communications Subcommittee Chairman Greg Walden, R-Ore., and the House Commerce Committee, a GOP committee aide told us. “The American public deserves to know what the commissioners are discussing and that the FCC is working towards acting in a more transparent, accountable, and predictable way. The FCC needs to move beyond its top-down, nontransparent nature and adopt a more open process.” Walden probed Wheeler and other commissioners on the matter at the March 22 hearing. Both Walden and Senate Commerce Committee Chairman John Thune, R-S.D., questioned the source of the Lifeline leak.

"There's nothing new under the sun here," said Michael Copps, a former commissioner and now Common Cause adviser. "I remember learning about inside doings from outside sources multiple times," he emailed. "During those years, I sometimes felt that commissioners -- both minority and majority -- were about the last to know what was going on. I think that's generally changing for the better now under the current leadership, which has the added challenge of trying to advance the public interest under difficult internal circumstances.”

Censorship Alleged

O'Rielly complained Feb. 24 that commissioners were being "silenced" while Wheeler and his staff could release information about pending items, with his "spin." O'Rielly noted an FCC rule prohibited disclosure outside the agency of "nonpublic information" in pending items or decisions absent the chairman's written authorization. As it was being applied, the rule "hinders" commissioners' ability to obtain information and engage in "fulsome dialogue," he said in a blog post. But he said Wheeler and his team could discuss items openly and "post blogs, tweet, issue fact sheets, brief the press, and inform favored outside parties about their content." O'Rielly found it "immensely frustrating" that he couldn't even test certain concepts or correct misunderstandings about items in meetings with advocates. He urged Wheeler to give blanket approval for commissioners to discuss the substance of pending items.

O'Rielly renewed his call March 22, joined by Commissioner Ajit Pai, who said he couldn't even discuss pending items with lawmakers at the House subcommittee hearing. Under testy questioning, Wheeler suggested commissioners weren't barred from "full-throated" discussion of concepts that "don't translate into the specific language" and could "speak about the substance of the rulemaking." But Pai said it was "flatly not true" that commissioners "have full and fair latitude to discuss what's in" draft items. Walden said the restriction conflicted with "open transparent government" and "needs to change." Commissioner Jessica Rosenworcel said she was able to have "substantive discussions of every stripe" and was "a little bit confused by the difficulties" voiced by her GOP colleagues.

Three of O'Rielly's 24 "process reform ideas" were "adopted in whole or in part," he said last month. Among them was a proposal to "allow Commissioners to discuss the substance of most Commission items, including correcting misinformation and outlining any edits sought by that particular Commissioner, but not exact text of items," he wrote in a July 8 blog post without elaborating.

O'Rielly said this week his push "to speak freely about items under consideration has always been about getting the best work product possible and allowing interested parties to hone in on specific areas of dispute, rather than waste time chasing dead ends. ... The only way to ensure that parties can fully understand and comment on the actions proposed by the Commission is to disclose the full text of items we are considering, and I will continue my work on this."

Lifeline Issue Bubbles

FCC tensions exploded March 31 when a bipartisan Lifeline USF deal involving O'Rielly, Pai and Commissioner Mignon Clyburn fell apart at the last minute before a meeting that was delayed three times (see 1603310056). Instead of adopting a bipartisan $2 billion hard cap, according to the Republicans, the FCC voted 3-2 along party lines to adopt a $2.25 billion "budget" with adjustments possible. State commissioners also were critical, elsewhere in this Special Report (see 1608230009).

Pai said Wheeler and staff sabotaged the bipartisan deal by "leaking nonpublic information to the press" and encouraging Democratic lawmakers and liberals "to blast the deal" before the vote. Clyburn said she had second thoughts, and both she and Wheeler denied subterfuge.

Thune has further “tools at our disposal” if Wheeler is not forthcoming about whether he authorized the Lifeline leak, Thune told reporters last month after blasting Wheeler at length on the chamber floor (see 1607070049). Thune pressed Wheeler on the rules for disclosure of nonpublic information in a series of letters that began before the Lifeline leak and continued well after, as he pressed for action and prompted the FCC IG investigation into the matter (see 1604190024, 1604150057 and 1603210052). Industry officials told us this week that Wheeler may be called to testify before Thune at a possible FCC oversight hearing next month, tentatively set for Sept. 15. FCC disclosure practices Thune criticized as discriminatory were detailed in a past Special Report (see 1511200019).

Leaked information was circulating beyond the FCC March 31 even before news of the possible bipartisan deal, according to responses to our FOIA request. At 9:58 a.m., Kara Van Stralen, telecom aide to Sen. Cory Booker, D-N.J., emailed an aide to Rosenworcel. “My Chief may need to reach you -- CB is strongly opposed to a cap. Can we talk through?” Booker spoke with Clyburn later that morning opposing the bipartisan deal, amid widespread Democratic Capitol Hill pressure on Clyburn’s office to avoid the deal (see 1604120062).

Further emails show Booker staffers disavowing knowledge of how any information became leaked to the press. “FYI we’re keeping our powder dry -- press not coming from us,” Booker Chief of Staff Matt Klapper told Clyburn Chief of Staff David Grossman in an 11:42 a.m. email. “Have talked with Senate colleagues who share Sen. Booker’s concern and will be reaching out.” A reporter contacted Booker’s office shortly after 11 a.m. seeking confirmation about the commissioner deal, prompting a decision among Booker staffers not to respond, the records showed. “Jeez, how does anything stay behind closed doors?” Van Stralen asked Klapper, who told her, “Let’s give [Clyburn] time and space to reach the right conclusion without involving the press. That said we’re going very, very hard if this deal happens.”

Booker's "office engaged with the FCC on various aspects of the Lifeline program for months leading up to the vote,” his spokeswoman told us about the FOIA emails. “Our office reached out to the FCC to convey our position ‎as soon as we heard there could be a cap, as such a measure could cause serious harm to people who rely on this program in New Jersey and across the country. We heard of the prospect of a cap from various sources.”

When Reed Hundt as chairman circulated major items, lawmakers usually called within a day, with the record being five minutes, said his former chief of staff Blair Levin, now with the Brookings Institution. “The cherry-picking of information for political purposes is inevitable, and everybody does it," he said. “Every chairman institutionally has an incentive to hold information close. Every commissioner has an incentive to want the opposite.”

Consultant/economist Harold Furchtgott-Roth said the internet had changed the FCC since he was a commissioner, as even bureaus have blogs and the president can weigh in through YouTube, which President Barack Obama did on net neutrality. "I'm not saying it's good or bad," said Furchtgott-Roth. "It's just different. It's much more informal."