Pai Sidestepping FCC OGC in House, Senate Investigations

Both committees began investigations earlier this year of whether the White House unduly influenced the development of the FCC net neutrality order. The House Oversight Committee held a hearing on the issue in March and had already received hundreds of pages from the FCC then, showcasing many internal emails at the hearing. FCC Chairman Tom Wheeler defended his independence from the administration during that hearing.

FCC OGC Senior Legal Adviser John Williams sent the House Oversight Committee a letter May 29 that included a disc with about 4,000 pages of emails and documents responding to the request. The information “has been compiled under the close supervision” of OGC, Williams said. He said “senior staff” in Pai’s office recently had told him they wouldn't permit OGC to collect documents in custody of Pai and Pai’s staffers. “Whether or not there is an agreement to produce documents separately, if the Office of Commissioner Pai continues to refuse to use the agency-wide production process, then, of course, OGC will not be able to assure you that his office has preserved documents, conducted searches, or produced documents to you in a manner that complies with your Committee’s instructions.”

The Senate Homeland Security issued a general request to the committee, encompassing all five FCC commissioners’ offices, a spokesman for Homeland Security Committee Chairman Ron Johnson, R-Wis., told us. House Oversight Committee staff “requested information only in regard to Chairman Wheeler,” said a spokeswoman for House Oversight Committee Chairman Jason Chaffetz, R-Utah. House Oversight staff were aware of the broader Senate request and asked to be included -- copied on any FCC response, in other words, as she put it. “We’re focused on Chairman Wheeler and how he came to the rulemaking process like he did.”

"All I know is that OGC wanted us to give them documents, and the [House Oversight] Committee has told us that they are not seeking documents from our office,” Pai Chief of Staff Matthew Berry told us. Berry said he “reconfirmed” Wednesday that the House isn't seeking documents from the Republican commissioner.

Berry recounted his time as general counsel under then-FCC Chairman Kevin Martin, a Republican, and saying Democratic Commissioners Jonathan Adelstein and Michael Copps “did not provide their documents to OGC to review” during a House Commerce Committee investigation. That House inquiry focused on potential mismanagement from Martin. “With respect to this investigation, our office is simply following that precedent,” Berry said. “Indeed, this is the same thing that we did during the House Energy and Commerce Committee's Grain investigation. Our office has been in touch with the Committee and has made it clear that we intend to supply them with whatever documents they would like. Unfortunately, however, neither the White House nor Chairman Wheeler's office included us in their communications about President Obama's plan to regulate the Internet." Grain Management had provoked Republican opposition to the private equity firm's limited FCC waiver of designated eligibility rules (see 1408010028). Pai’s office is working directly with Senate and House staffers, Berry said, saying he has received no complaints from the committees.

“We’ll take it wherever it comes from,” a Johnson spokesman affirmed. “He’s been very responsive. The committee’s main concern has been the general counsel’s office.” Senate Homeland Security is “very slowly getting at least some documents” from OGC, but committee staff are unsatisfied, he said.

Former FCC officials told us there's nothing unusual or unprecedented about a member of the agency working with Congress. There is “plenty of precedent” where individual commissioners have dealt directly with congressional committees rather than submitted requested or subpoenaed documents to the OGC for screening, said ex-Commissioner Robert McDowell, now at Wiley Rein. “Each commissioner has his or her own legal team and may be a lawyer as well,” said McDowell, a commissioner from 2006 to 2013. “They are, therefore, making their own legal determinations about a variety of matters on a daily basis.”

Key congressional committees also frequently ask commissioners directly for meetings, information and advice, McDowell said. “When it comes to matters as serious as congressional investigations, each commissioner's office has to take into account his or her own obligations and liabilities under the law and their ongoing relationships with Congress,” he said. “Ideally, this would involve a collaborative effort with OGC, but commissioners do not always believe that having OGC filter their data before sending it to Congress is in their best interests."

OGC "is conducting its collection and production of Commission documents in accordance with the requests of the House and Senate committees that are investigating the Open Internet Order," emailed an FCC spokeswoman.