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.
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