The Federal Communications Commission "f*cked up" by holding closed-door meetings with industry giants aimed at striking a deal over Internet regulation, a government source told DailyFinance on Tuesday, even as the agency's chief of staff defended a process that has effectively shut out the public.
Since becoming chairman of the FCC, Julius Genachowski, the former
Internet executive and Harvard Law School chum of President Barack
Obama, has repeatedly insisted that under his watch, the FCC will be
more open and transparent than any previous Commission, with greater
How we will work will be central to what we can achieve. We
will be fair. We will be open and transparent. Our policy decisions
will be fact-based and data-driven. -- Federal Communications Commission Chairman Julius Genachowski, Remarks to FCC Staff, June 30, 2009
It is a roadmap for a process that will be open, transparent and
will allow public participation in ways that are unparalleled for this
agency. The FCC will reach out to nontraditional stakeholders, because
all Americans have a stake in this proceeding. -- Remarks at FCC Open Meeting, July 2, 2009
Effectively Shutting Out the Public
Yet, writing on the agency's website Tuesday, FCC Chief of Staff Edward Lazarus -- who has been running the meetings -- said that the agency's ex parte
disclosure rules, which require the agency to provide documentation of
all meetings or discussions related to FCC rule-making, don't apply in
Why is that? Lazarus asserted that because the meetings concern
"approaches outside of the open proceedings at the Commission, the
agency's ex parte disclosure requirements are not applicable."
After last Friday's Lazarus-hosted meeting with Google and Skype, Markham Erickson, executive director of the Open Internet Coalition, sent a "Notice of Ex Parte Presentation in GN 09-191" to the FCC that stated plainly:
"We endorsed the six principles proposed in the docket; we reiterated
our support for applying those principles to wireless platforms; and we
expressed our support for flexible network management standards."
Proceeding 09-191 is the docket number
for a public comment process entitled: "In the Matter of Preserving the
Open Internet Broadband Industry Practices. Public interest groups were
not invited to the meetings.
"We fu*ked up," a government source familiar with the meetings told DailyFinance. "We deserve the bad press. It was a process foul at a minimum." The source was granted anonymity because the meetings are private.
Finding a Way for FCC to Regulate the Internet
So if the discussions with AT&T, Verizon ,
the National Cable and Telecommunications Association, Google and Skype
don't concern an ongoing rule-making process, what are they about?
What, indeed. According to multiple press reports, as well as persons
with knowledge of the meetings, the talks are designed to find a
legislative path forward that would give the FCC the authority to
regulate the Web -- and thus impose network neutrality rules -- without
the limited Title II reclassification that the FCC has been seeking after a federal court ruled in April that the agency lacks such authority.
"They don't want to see this played out in the press," the government source said.
Stricter Rules For the FCC
Unlike Congress, where lawmakers routinely meet behind closed doors
with industry lobbyists, the FCC -- a federal regulatory authority --
operates under stricter disclosure rules, hence the ex parte disclosure requirements.
Despite the secret meetings, Lazarus insisted that, "As always, our
door is open to all ideas and all stakeholders." He added: "To promote
transparency and keep the public informed, we will post notices of
these meetings here at blog.broadband.gov."
In the first of such notices -- a letter
published by the FCC Tuesday -- Erickson said the FCC met with: "Thomas
J. Tauke, Executive Vice President Public Affairs, Policy and
Communications, Verizon; James W. Cicconi, Senior Executive Vice
President External & Legislative Affairs, AT&T Inc.; Kyle E.
McSlarrow, President & CEO, National Cable & Telecommunications
Association; Alan Davidson, Director of Government Relations and Public
Policy, Google; Christopher Libertelli, Senior Director ofGovernment
and Regulatory Affairs, Skype."
According to Lazarus, Monday's meeting does not require ex parte
documentation, because it was "outside of the open proceedings at the
Commission." The topic? Erickson: "We discussed details relating to
prospective legislation relating to open Internet principles."
That's it. Unlike Erickson's previous, actual ex parte filing, this document provides no hint as to the motive or argument of the meeting participants.
"Simply Not Acceptable"
Public interest groups went utterly ballistic.
"We are appalled at the idea put forward by the FCC Chief of Staff that there will be no disclosure (ex parte)
requirements for meetings the Commission staff will hold on topics
directly related to ongoing FCC proceedings," Washington, D.C.-based
advocacy group Public Knowledge said in a statement Tuesday.
"To say, as Mr. Lazarus did, that 'other approaches outside of the open
proceedings' would not be subject to disclosure requirements is simply
not acceptable in any circumstance, must less in an Administration and
an FCC which have promised new levels of transparency."
Josh Silver, head of D.C.-based public interest group Free Press, echoed those sentiments.
"The FCC's blog post is a fig leaf attempting to cover for what appears to be secret negotiations to sell out the future of the Internet," Silver said in a statement Tuesday.
"It is deeply disturbing that the FCC's Chief of Staff is not only
meeting exclusively with industry representatives on the future of the
Internet, but when faced with criticism, he is also making weak excuses
for the agency's behavior alongside vague promises to include others
somewhere down the road," Silver said. "Paying lip service to
transparency and being transparent are two different things."
"Lazarus's claim that these meetings were not subject to ex parte
rules is a red herring. Either the FCC is hosting these meetings to
discuss FCC action on the future of the Internet, in which case they
are subject to ex parte rules, or the FCC is secretly
conspiring on a legislative strategy with only the largest telecom
industry representatives and lobbyists at the table. That's even more
So, do you think Genachowski is living up to his pledge to create "the most open and transparent FCC in history"?