FCC-Hill Correspondence Sometimes Not Made Public

Genachowski has decided to release the letters he writes to members of Congress seven days after they're sent, at which time he'll also make public the legislators’ correspondence, FCC Press Secretary Jen Howard said Thursday. That move comes “as part of the chairman’s commitment to openness and transparency at the commission,” she said. Agency spokespeople didn’t answer other questions about how letters from legislators are publicized.

Unlike the agency’s handling of most comments from consumers, companies and others, letters from Congress to the commission don’t automatically go into publicly accessible online dockets. A separate agency system tracks congressional correspondence, said a commission official. The chairman’s office sends these letters to the Office of Legislative Affairs for commission staffers to review the issues, said the official. Many lawmaker letters don’t deal with pending proceedings that have been assigned a docket number, which means there’s no official process for making the correspondence public, the person said. When staffers see that a letter relates to a docket, that communication does go into the public record, the person said.

Some Hill correspondence was publicized in dockets days or weeks after the dates on the letters. All but three of the 46 letters we reviewed don’t appear to have been posted in a docket. The letters were part of more than a hundred pieces of congressional correspondence, plus agency replies, given to Chairman Julius Genachowski to prepare him for his June 16 nomination hearing. They dated to the chairmanship of Kevin Martin, which ended Jan. 20, and from the subsequent five-month period during which Commissioner Michael Copps ran the agency. The practice of not routinely giving the public timely access to Hill letters hasn’t changed under Genachowski.

The commission should make public all correspondence except items on ongoing investigations or personnel matters, said former staffers, public-interest group representatives and members of a committee advising the FCC on issues including transparency. They said the correspondence we received via our FOIA request wasn’t extraordinary, but the public ought to be able to read all letters to see how the FCC communicates with its congressional overseers.

“It may be worthy to examine dedicating a portion of our Web site to appropriate congressional correspondence,” said Commissioner Robert McDowell. That would “make it easier for the public to see into the process” of Hill-FCC communications, he said. The other commissioners had no comment.

The agency appeared to have withheld 15 letters, signed by a combined total of several dozen senators in mid-2007, that supported applications for a total of about $130 million in rural telemedicine funds from the Universal Service Fund. Other correspondence kept out of dockets dealt with the Universal Service Fund and intercarrier compensation, use of the white spaces between TV channels, a cable-broadcaster carriage disagreement, CableCARD and other waiver requests, the DTV transition and media ownership. Of the three letters we reviewed that the FCC did make public, two dealt with Sirius’ takeover of XM -- one appearing in the docket almost two weeks after it was sent -- and one was on media ownership, posted almost a month later.

‘Behind Closed Doors’

The public shouldn’t have to file a FOIA request to get access to congressional letters, said former FCC staffers who study the agency, and public interest group representatives, some of whom lobby the commission. “The most disappointing thing to this is it requires a FOIA [request] to see it,” said Policy Director Meredith McGehee of the Campaign Legal Center. “It shouldn’t be a matter of someone having to put the pieces together. When such communication is done behind closed doors, all it does is raise questions.” Others said there’s no need to make the correspondence public because it’s routine.

The FCC should create a place on its Web site that lets users search for correspondence by subject or the names of members of Congress, said Senior Vice President Harold Feld of Public Knowledge. That would let “the public know when members of Congress have weighed in on behalf of constituents or donors,” he said. No matter how the FCC does it, “routine correspondence ought to be publicized right away,” said President Andrew Schwartzman of the Media Access Project.

Some FCC Consumer Advisory Committee members also want more transparency. “Communications from the Congress to the FCC ought to be made public” as they are sent, as should the agency’s responses, said Benton Foundation Chairman Charles Benton, who also chairs the committee’s group on commission openness: “That is quintessentially part of the accountability of the FCC to Congress.” Virginia Tech Associate Professor Irene Leech, another committee member, said she believes “such correspondence should absolutely be made public.”

Others said there’s little reason to do so. “I'm all for transparency, but I don’t think much of this correspondence is going to be particularly revealing to anybody,” said Richard Wiley of Wiley Rein, a Republican former FCC chairman. “I don’t think it’s that big a deal, and a lot of these letters get leaked,” said University of Nebraska Assistant Professor Marvin Ammori, also general counsel of Free Press: “Disclosure is better, but it really isn’t a big deal.” The occasional “noteworthy exchange between the Hill and FCC” aside, “I suspect most of the correspondence wouldn’t matter to the financial markets,” said analyst Paul Gallant of Washington Research Group.

There’s “no earthly reason for not revealing them,” said Professor Chris Sterling of George Washington University, an eighth-floor staffer in the 1980s. “Congress has never cottoned [to] the idea that ‘ex parte’ means them just as much as anybody else,” he said. “It makes it so much easier for the non-Washington insider to follow the game,” said Associate Professor Adam Candeub of Michigan State University, an FCC Media Bureau attorney until 2005. “This type of disclosure would allow us to know what Congress is concerned about at the FCC.”

Some letters reveal tension between the agency and legislators, and show the FCC gets contradictory instructions from different members of Congress. In October 2007, Sen. Byron Dorgan, D-N.D., and then-Sen. Trent Lott, R-Miss., asked the commission to slow down its media ownership proceeding. The senators cited the “considerable scrutiny” the effort was receiving, also noting “Congressional opposition” to the previous ownership rule rewrite. The same month, Sen. Jim DeMint, R-S.C., and then-Sen. John Sununu, R- N.H., asked that the agency relax radio ownership limits.

In a September 2007 letter, Sen. Chuck Grassley, R-Iowa, asked the FCC not to let white-spaces devices interfere with DTV reception. In May 2008, Sen. Sam Brownback, R-Kan., told Martin he took “great umbrage with your insinuation that I am placing ‘political pressure’ on the FCC to interfere” with bidding for an entity to run an e-rate program.