Friday, October 14, 2016

Thinking Things Through VIII: FCC Leaks and Institutional Integrity

Most Washingtonians are familiar with the aphorism that it is best not to know how both laws and sausages are made. The most recent confirmation of that proposition comes in an Inspector General’s report regarding the leak that torpedoed a compromise among Commissioners Clyburn, Pai, and O’Rielly regarding funding for the FCC’s Lifeline program. I can’t disagree with Senate Commerce Committee Chairman John Thune’s observation that “[t]he findings by the inspector general reveal significant dysfunction and a lack of transparency at the FCC.”

Recall what occurred. After one Democratic Commissioner and two Republican Commissioners apparently had reached a compromise agreement to cap funding for the Lifeline program at $2 billion per year, news of the compromise was publicly leaked, the FCC’s monthly meeting was postponed from its scheduled start time of 10:30 a.m., various last minute ex parte communications occurred, and the compromise fell apart. Although the Inspector General was unable to determine who leaked what to whom, and when, he concluded that FCC Chairman Tom Wheeler and his Chief of Staff authorized the FCC’s Office of Media Relations to inform the press that there was a Lifeline compromise that included an annual cap on the amount of money available in the Lifeline program.

After the compromise fell apart, the FCC adopted an order that lacked a cap on Lifeline funding.

No one seems to dispute the above facts. But, putting aside the particular merits of the “compromise that was blown out of the water,” I have a problem with the Inspector General’s report that goes to the way the Commission functions as an institution and the agency’s institutional integrity. My problem is, as I will show, the IG’s report perpetuates the incorrect notion that the FCC Chairman somehow broadly possesses the power to authorize leaks of non-public information.

This matter is worth “thinking through” in some detail because various Commissioners have expressed frustration – in a number of proceedings, including the Open Internet docket – about being muzzled while the Chairman claims to be free to disclose whatever selected bits and pieces of information he wishes.  A close reading of the relevant rule suggests that the Chairman doesn’t possess such power. 

The IG’s report identifies the relevant Commission rule as Section 19.735-203.  Subsection (a) of that rule is worth quoting in full: 

“(a) 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.”

The report also clarifies that the power granted to the Chairman by paragraph (b) “only applies when an FCC employee wishes to disclose nonpublic information as part of any writing or teaching outside of the FCC.” This, of course, was not the circumstance of the Lifeline leak. 

So, where did the Chairman get the claimed authority to authorize the leak?  The IG’s report says that “the authority to determine what nonpublic information may become public information derives from section 5 of the Communications Act of 1934, as amended, 47 U.S.C. § 155(a), which provides that the Chairman is Chief Executive Officer of the FCC, and sections 0.3 and 0.211 of the FCC's rules, 47 C.F.R. § 0.3(4) and 0.211, which define and provide the Chairman's general authority over the affairs of the FCC.”

This interpretation appears to be a real stretch.

Yes, Section 5(a) of the Communications Act makes the Chairman the FCC’s CEO.  But the statute goes on to explain what it means by that, to wit, “to preside at all meetings and sessions of the Commission, to represent the Commission in all matters relating to legislation and legislative reports, except that any commissioner may present his own or minority views or supplemental reports, to represent the Commission in all matters requiring conferences or communications with other governmental officers, departments or agencies, and generally to coordinate and organize the work of the Commission in such manner as to promote prompt and efficient disposition of all matters within the jurisdiction of the Commission.”  47 U.S.C. Section 155(a). So the Chairman is the CEO in some circumscribed respects. But, as Section 4 makes clear, the powers of the Commission belong to the “five Commissioners appointed by the President, by and with the advice and consent of the Senate….”  47 U.S.C. Section 154(a).

The powers of the Commission may be delegated to the Chairman or to various Bureaus and Offices, but no relevant delegation appears to authorize leaks. Section 0.3 of the FCC’s rules essentially restates Section 5(a) of the statute and does not purport to confer any additional authority upon the Chairman. Section 0.211 of the Commission’s rules confers responsibility for the “general administration of internal affairs of the Commission. It identifies three categories of activities and the Chairman’s role with respect to each:   

“(a) Actions of routine character as to which the Chairman may take final action.

“(b) Actions of non-routine character which do not involve policy determinations. The Chairman may take final action on these matters but shall specifically advise the Commission on these actions.

“(c) Actions of an important character or those which involve policy determinations. In these matters the Chairman will develop proposals for presentation to the Commission.”

Authorizing leaks of internal policy deliberations surely isn’t “routine,” and revealing information about a pending compromise in a major rulemaking (especially with the goal of derailing that compromise) unquestionably involves a “policy determination.” In any event, this rule, by its terms, relates to the “internal affairs” of the Commission. It’s quite a stretch to read this as applying to the authorization of external leaks regarding confidential deliberations among Commissioners. 

That’s especially clear if we now look back at the specific rule the Commission has promulgated to deal with the release of non-public information.  The rule says clearly that “non-public information shall not be disclosed” except in one of two circumstances – (1) “as authorized in writing by the Chairman” for purposes of employee teaching or writing, or (2) “otherwise as authorized by the Commission or its rules….”  This rule clearly differentiates between the narrow circumstance in which disclosure of non-public information can be authorized by the Chairman and other situations in which such disclosure must be authorized by the Commission. As I read it, the rule is purposefully worded to differentiate between what the Chairman himself can do and what requires the approval of the full Commission. 

In my view, the leak of the Lifeline compromise required the approval of full Commission. No such approval was sought or granted in this case. 

I’m willing to grant that Chairman Wheeler probably is not the first FCC Chairman to usurp powers which the Communications Act has reserved to the full Commission, or which the Commission, by its own rules, has reserved to itself. And he may not be the last. But this doesn’t make any usurpation right. I’d like to see Chairman Wheeler recognize that Section 5 of the Communications Act and Sections 0.3 and 0.211 of the FCC's rules do not trump the specific provisions of Section 19.735-203.

By the way, I reiterate that my interest now is not whether, on the merits, the torpedoed compromise was preferable to the action ultimately taken by the Commission. Rather, my interest here – in trying to think through what for some may appear to be a pretty mundane matter – is the way the agency functions. After all, at least in theory, Congress intended the Commission, bipartisan by design, to function as a collegial body, one in which compromise is not a dirty word. Putting the theory into practice once in a while would be a worthwhile endeavor, one which might produce better communications policy.