Activists Say FCC Officials Shouldn’t Speak at Non-Public Events

“Frankly, it smells to high heaven to have so much of the public’s business done in closed-door meetings,” said one First Amendment lawyer and former FCC official: “But malodorous is not the same as illegal.” Referring to such events as Chmn. Martin speaking at a recent closed Bear Stearns analyst meeting, where his speech was the only event that wasn’t streamed live or later the same day, or other officials speaking at off-the-record FCBA events, the lawyer said there are no legal prohibitions to such events, though he thinks maybe there should be. Federal “sunshine” and “open meeting” laws adopted in the 1960s don’t appear to refer to speeches at outside events.

FCC officials often speak on an off-the-record or non- for-attribution basis at FCBA brown bag lunches and similar events. At one recent FCBA event, a senior FCC staffer spoke and allowed his words to be reported, but refused to be quoted by name even though the FCBA had widely publicized in advance who would be speaking. But the FCBA doesn’t close the doors to such events, an FCBA official said: “FCBA events are open to the public and provide the speaker with the option of being ‘on’ or ‘off’ the record.”

Though sponsors of such events often want them closed, FCC officials should refuse to speak unless they're open, said Al Sikes, a former FCC chmn. and now a Hearst consultant. Sikes set such a policy for himself and other FCC officials when he was in office, but noted that there has been a trend in the opposite direction since he left.

There has been a trend away from speaking only in the open, agreed Media Access Project Pres. Andrew Schwartzman. He said former Chmn. William Kennard and predecessors were “pretty good” about speaking in the open, “but it has gotten worse. I think it’s characteristic of the current Administration more broadly. This is an Administration that’s very tightly run and tamped down.”

“Every chairman from time to time has spoken at events that are closed,” an FCC spokesman responded. He said officials usually leave the open/closed decision up to event organizers, and often don’t even know the status in advance. The speeches, even those at closed events, are part of the FCC’s ongoing program of outreach, the spokesman said: “All commissioners speak all the time to lots of groups… They are not doing this for the press. They are doing it for outreach and communications.” FCC officials, including Chmn. Martin’s office, didn’t comment further.

There’s no rule requiring FCC officials to speak only at open meetings, Sikes told us, but “it’s just the right thing to do.” He said FCC officials are “certainly entitled” to exclude the public and press from private meetings, but whenever they're speaking at a publicly announced event with a significant number of attendees “I wanted them to be open.” Sikes said it’s “really wrong-headed” to speak behind closed doors because active reporters will get information about the speeches from attendees, but it often will be “fragmented and misleading,” when the reporting “could have been accurate and complete” if the event were open to the public.

More importantly, there’s a sense that “insider information is being given out” to a select few when FCC officials speak behind closed doors, whether that’s true or not, Schwartzman said. That problem can be solved by the “sunlight disinfectant effect,” he said.

Long-time FCC Comr. James Quello agreed, saying “communications commissioners should be open to communications.” Quello said FCC officials have a legal right to speak behind closed doors, but he doesn’t believe it’s good policy.

One former chairman, however, said speaking at closed forums benefits companies and the public alike. “I personally don’t see a problem,” said Richard Wiley. “The meetings that I've seen have been very broadly attended… It’s not something that you are holding in a closed door situation.” FCC commissioners have “a right” to share their opinions in a variety of forums, said Wiley. Information from these meetings is usually widely dispersed, he added.

Since high govt. officials are “more or less on the clock at all times” and govt. staff and equipment is often involved, speaking at closed events means public money is being spent at non-public meetings, McMasters said: “They are using a public office and public time, personnel, facilities and equipment to serve a private interest. Whether there is a law or regulation or policy that prohibits such action is irrelevant. Shutting the public and press out when they speak is a clear violation of the public trust they assume as government officials.”

Federal officials should “think once, twice and a thousand times” before allowing the public and press to be prevented from attending a speech and covering it, McMasters said. He said federal officials are “appointed to serve the public interest” so they shouldn’t accept closed-door invitations. McMasters also said FCC officials “routinely use the press to send messages to the public” so they “shouldn’t muzzle the press to send private messages to private groups.”

Some doors aren’t closed, just expensive to open, Schwartzman pointed out. In some cases, he said “the only way to get access is by having to pay large amounts of money.” Some organizations alleviate that by allowing the press to cover the events for free, he acknowledged. [Editor’s Note: Warren Communications News has sponsored fee-based audioconferences in the past, but they were open and free even for competing journalists.]

FCC officials have regularly used investor conferences to discuss controversial issues before the Commission -- a practice set to continue. These conferences are usually open to reporters, but not the public. Wall Street money managers and analysts who have relationships with the firms putting on the conferences are invited to the exclusive forums, which often take place at expensive hotels and resorts. Martin is scheduled to keynote at a Bank of America investor conference later this year, said a spokesman for the firm. Former Chmn. Michael Powell used such occasions to discuss pending rules. Speaking at a Precursor Group conference, he said a VoIP rulemaking would remain on the Commission’s agenda, refuting speculation it would be removed (CD Feb 11/04 p6). FCC bureau chiefs have also made appearances. Dorothy Atwood, then Common Carrier Bureau chief, told a Legg Mason forum that rural task force recommendations would soon be acted on (CD Dec 7/00). Atwood is now senior vp-regulatory planning & policy at AT&T.

One question is how deep into the FCC the requirement for speaking in the open should go, Sikes acknowledged. He said it certainly should apply down to the bureau chief level, but also probably to any FCC staffer who is disseminating information that might be useful to more people than just the event’s attendees.

There could be a “minor and hyper-technical violation” for attendees at closed-door speeches by FCC officials, Schwartzman said. He said attendees could technically violate ex parte rules if they make a statement, or ask a question that includes an opinion or new information, that’s relevant to an ongoing FCC proceeding, then fail to file an ex parte notice. There’s an exception to the ex parte rules for widely attended meetings, he said, but such meetings would have to be open.