The FCC’s lack of respect for due process

Frustrated with one abuse of due process after another at the Federal Communications Commission (FCC), House Energy and Commerce Communications and Technology Subcommittee Chairman Greg Walden (R-Ore.) has made it his personal mission to pass legislation to improve the FCC’s practice and procedures. Despite these laudable efforts, Walden unfortunately misses the bigger picture: What’s in a law only matters to those who have some concern for the law, and current FCC leadership — including foremost the former lobbyist, Chairman Tom Wheeler — appear to have little if any respect for the law. As policy is personnel, therefore, an administrative agency with little regard for the binding precepts of both the Communications Act and the Administrative Procedure Act will also have little if any regard for any new process reform legislation.

{mosads}As a communications lawyer with over 20-plus years of experience (including a stint in the FCC’s Office of General Counsel), I do not make this public charge against Wheeler lightly. But as a citizen who cares about the integrity of our government’s institutions, I am compelled to point out a sustained pattern of behavior at the FCC under Wheeler’s tenure that should trouble anyone who believes that due process is the cornerstone of our democracy. While I’m sure many are familiar with the FCC’s well-documented shenanigans with the White House during the net neutrality debate (in fact, Sen. Ron Johnson [R-Wis.] issued a scathing report this week exposing internal FCC emails) or the commission’s shameless disregard of its own precedent in its botched handling of the Designated Entity bidding credits in the recently concluded AWS-3 spectrum auction, I would like to use this space to highlight a few lesser-known examples to illustrate the pervasive culture of corruption at the FCC under Wheeler.

Example No. 1: Hiring senior personnel with serious conflict of interest problems

Telecommunications is a complex business, and so I have absolutely no problem with the FCC hiring industry people with significant and substantive knowledge of the issues. (By way of comparison, the majority of former FCC Chairman Julius Genachowski’s senior staff had no serious telecom background, and it showed.) Although Wheeler did hire some outstanding telecommunications veterans such as former Ambassador Phil Verveer, he crossed the line when he hired several people to oversee major proceedings who had participated in those the very same FCC dockets as active litigants. These hires include Gigi Sohn, who previously advocated on behalf of Public Knowledge for net neutrality and who now is an integral part of Wheeler’s senior management team, and Howard Symons, who previously represented T-Mobile in the upcoming voluntary incentive auction proceeding, but whom Wheeler subsequently hired to act as vice chair of the Incentive Auction Task Force. Now, I have nothing against either Sohn or Symons; in fact, I think they are both talented communications lawyers and I consider them both friends. My problem is that under any reasonable ethical standard, these staff appointments raise major conflict of interest problems.

Example No. 2: Attempting to force nonprofits and academics to reveal donors in clear violation of Supreme Court precedent

As I documented in an op-ed in The Hill two years ago, Wheeler proposed to require everyone filing comments at the FCC — from advocacy groups to academic institutions — to disclose any direct and indirect financial support they may receive “from industry.” According to this recommendation, such a rule is necessary because: “In most cases, a filer’s motives are apparent, but sometimes they are hidden. For instance, an organization purporting to represent consumer interests may actually represent industry, or may be influenced by industry contributions.” Thus, reasoned the FCC, the implementation of such a rule will permit the agency to “evaluate the credibility of factual and policy arguments by knowing who is making them.” (Emphasis supplied.)

As I noted in my op-ed, aside from the basic fact that the Supreme Court has held that such a policy is nakedly unconstitutional, this statement is a stark admission by the chairman’s office that it does not intend to evaluate the merits of the arguments before it, but that the agency will assess the “credibility of … arguments” based on “who is making them” and, thus, the filer’s presumed “motives.” Indeed, rather than the FCC evaluate your arguments based on whether or not you cite the relevant statutes and case law correctly, or have the FCC accept or reject your arguments depending on whether you perform your economic analysis competently, or even be concerned with whether your data are verifiable and your analysis replicable, Wheeler sent a clear message that the commission will evaluate the credibility of your argument exclusively through the ad hominem lens of who you are. It’s not the quality of your work that matters, but the agency’s assessment of your “motives.”

Example No. 3: No respect for the Sunshine Act

Most recently, the FCC was caught with its hand in the proverbial cookie jar when it attempted to hold a “Twitter Town Hall” to discuss the forthcoming (and highly controversial) Notice of Proposed Rulemaking regarding cable set-top boxes just two days before the commission’s vote. Under the Sunshine Act, the FCC is supposed to cease communications with the public prior to the release of an order to protect the integrity of the commission’s decision-making process. However, a Twitter Town Hall with an FCC employee is, by definition, a prima facie “communication.” After the FCC was called out, the agency cancelled the town hall at the last minute.

Despite this narrowly avoided violation of the Sunshine Act, there was a bigger problem with the FCC’s planned town hall that unfortunately received only little attention. In particular, this official FCC “town hall” was supposed to be conducted by Sohn and Alex Nogales, president and CEO of the National Hispanic Media Coalition, to “answer your questions about how the proposal aims to unlock the content currently chained to pay-TV devices and apps so consumers can have new options for accessing the programming they pay for.” Not to put too fine a point on the matter, but why did the chairman’s office think it was acceptable to have an outside party on an official FCC event talking about a yet-to-be-released commission item during the sunshine period? Can you imagine if a Republican chairman tried to pull this same stunt? The Democrats would be apoplectic (and rightly so).

In sum, while people may love to pick on the FCC as an institution, we must recognize that the institution is run by people. While policy debates are to be expected (indeed, that’s what elections are for), the protection of due process must be a bipartisan priority. Yet, so long as Wheeler and his Democratic majority on the commission remain blase about the need to respect our due process rights, I fear the damage to the FCC’s institutional reputation, if not the entire U.S. democratic process, may be irreparable.

Spiwak is the president of the Phoenix Center for Advanced Legal & Economic Public Policy Studies, a nonprofit 501(c)(3) research organization that studies broad public-policy issues related to governance, social and economic conditions, with a particular emphasis on the law and economics of the digital age.