Undisclosed Pai Industry Meetings Draw Heat; Others See No Problem, Laud Outreach

Pai reportedly met with broadband ISP trade groups earlier this month in the first of several recent discussions on internet regulation (see 1704070052), followed by meetings with the Internet Association, companies in Silicon Valley and free-market advocates (see 1704120011, 1704200038 and 1704240049). Of those, only the Internet Association made an ex parte filing at the FCC disclosing its meeting. Pai also met separately with NCTA President Michael Powell on open internet issues and discussed net neutrality and other issues with Microsoft officials by phone, both of which were disclosed in filings (see 1704190065 and 1704190061).

"I don't like to use the word 'hypocritical,' but that is the only way to describe the failure of parties to file ex parte notices and the evident unwillingness of the Commission's General Counsel to direct them to do so," emailed Andrew Schwartzman, Georgetown Law Institute for Public Representation senior counselor, one of several observers responding to our queries before Pai's speech this week. "The Pai FCC is in favor of transparency unless it is against it. It is inconceivable that his meetings with ISPs in Washington and tech companies in Silicon Valley did not trigger ex parte filing obligations. The Commission's Open Internet Docket, 14-28, is open, and discussions on how to implement Open Internet policies with or without [Communications Act] Title II fall squarely within the scope of that proceeding."

Pai disclosed April 20 he had met with officials of Facebook, Cisco, Oracle, Intel and other companies in Silicon Valley April 17. "I've met with a wide variety of stakeholders," he said, in response to a question about the transparency of the ISP meeting at a commission news conference. He said he favors a "free and open internet" and opposes Title II broadband classification under the Communications Act. “Outside of the context of any pending proceeding, I’ve been simply soliciting thoughts on how to secure those online consumer protections that people have talked about.” Pressed for details about his Silicon Valley conversations, Pai repeatedly said he hadn't discussed the merits of any pending proceeding or his net neutrality plans. "The intent was pretty simple: to survey a wide array of stakeholders,” he said. “I think they were appreciative that I was reaching out and trying to solicit a diversity of views from a diversity of stakeholders."

Schwartzman disputed the notion of a simple Pai listening session to solicit suggestions on how to protect open internet principles. "Industry opponents of Title II regulation have stressed that they favor the FTC's approach of encouraging publication of voluntary codes of conduct and then enforcing violations as unfair trade practices," he said. "The FCC's 2015 NPRM specifically asked about using voluntary codes of conduct as presumptive safe harbors."

Public Knowledge didn't address the meetings, but offered a general critique of Pai's industry ties and leanings. President Donald Trump "came to power promising to drain the swamp and champion the needs of average Americans," said Kate Forscey, PK government affairs associate counsel, in a release. "Instead, his first hundred days have been a blanket assault on consumer safeguards, with FCC Chairman Pai putting dominant cable and broadband providers first and consumers last."

Asked for comment, a spokesman for Pai's office emailed: “We have met with a wide variety of stakeholders and whenever someone has made a presentation on the merits of a pending proceeding it is our understanding that they have, as required by our ex parte rules, filed letters describing those presentations.” On any process concerns, including on ex parte filings, Commissioner Michael O'Rielly noted in a brief interview Tuesday in Las Vegas that he "wasn't a party" to the net neutrality stakeholder meetings with Pai.

There are "certainly appearance problems, particularly given his criticism" of previous FCC Chairman Tom Wheeler "in that regard," said Open Society Foundations Fellow Gigi Sohn, a former Wheeler aide. "But if the parties didn’t make any presentations on the merits of his proposals, there’s no legal issue that I can see."

Pai allies provided an even stronger defense. "Ajit has put into place unprecedented transparency procedures," emailed Robert McDowell, Mobile Future chief public policy adviser and a former FCC commissioner. "Thus far, this FCC has been the most transparent in its history. Meeting with people is part of the job. If he weren't meeting with interested folks, his critics would be saying that he's too insular. They can't have it both ways. But at the end of the day, I'm sure that everyone will have more than enough opportunities to make their cases and have their voices heard. That's not just a good idea, it's the law under the [Administrative Procedure Act], which Ajit will follow to the letter."

“What matters on transparency is, does the chairman deliver on his public pledge to provide documents for the public early like he said he would," said NetCompetition Chairman Scott Cleland, noting Pai's practice of releasing draft items three weeks before meetings. "That’s where the measure should be. That change is a huge increase in FCC transparency. That’s where the focus should be. ... An FCC chairman reaching out to a wide variety of entities to have a dialogue, and being open to learning from other people, is undoubtedly a good thing. It’s amazing how normal outreach is turned into a negative because the public doesn’t know everything about every meeting.”

"It’s not a legal issue," emailed Fred Campbell, director of Tech Knowledge. "Assuming the item is published before a vote in accordance with the FCC’s current practice, it’s hard to see how there would be even a perceived transparency problem. It’s not unusual for the FCC to ask questions or brief industry and the press before issuing a formal proposal for public comment."

Others also didn't see grounds for legal objections. The "FCC Chair has significant discretion and latitude in interpreting Commission’s ex parte rules," emailed a long-time telecom attorney. "If there is no pending proceeding, there's likely no requirement for the filing of ex partes. ... I don’t see political ramifications, as GOP Committee Chairs applaud, not challenge, Pai’s activities here. And, of course, Pai was under no obligation, legal or otherwise, even to reach out to these groups. I would think from policy perspective, this conduct should be encouraged rather than discouraged."

"It's not legally necessary to file ex partes on meetings that occur in advance of an NPRM or request for comment, because technically there is no 'proceeding' until the issuance of such an NPRM or request for comment. So no legal issue there," emailed an industry consultant. "Assuming the FCC requests comment on everything (including the reclassification), the fact that these meetings occurred without ex parte filings will soon be forgotten."