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 public involvement.
Effectively Shutting Out the PublicHow 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
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 this case.
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."
FCC spokeswoman Jen Howard declined to comment.
After last Friday's Lazarus-hosted meeting with Google (GOOG) 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 (T), Verizon (VZ), 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 outrageous."
So, do you think Genachowski is living up to his pledge to create "the most open and transparent FCC in history"?