Oct 24, 2007 -- Legal Center Sends Letter to FCC Chairman Martin Regarding GAO Leaks

The Honorable Kevin J. Martin
Federal Communications Commission
445 12th Street SW
Washington, DC 20554

Dear Chairman Martin:

I am writing on behalf of the Campaign Legal Center to express our concern about a recent report from the Government Accountability Office which found that in four rulemakings before the Federal Communications Commission (FCC), "some stakeholders had access to nonpublic information that could give them an advantage in the rulemaking process." [1]

According to the GAO report, " 9 of 12 stakeholders…who regularly participated in FCC rulemakings [told the GAO that] they knew when proposed rules were scheduled for an upcoming vote well before the FCC released the agenda to the public because they hear this information from FCC bureau staff and commissioner staff. " [2] "One stakeholder—representing a large organization that is involved in numerous rulemakings—told us that FCC staff calls them and tells them what items are scheduled for a vote." [3]

Not only is this against the FCC's own rules, [4] but it also places a select group of insiders at a substantially unfair advantage over the public at large. The danger of unfair procedures of this nature is that they can not only lead to public policy decisions that are not in the public interest, but also can undermine public confidence in agency decisions.

These findings raise significant concerns that merit further investigation by the Commission—and the relevant congressional committees—in order to ensure that a select group of insiders do not wield a disproportionate influence in the FCC rulemaking process.

Moreover, this GAO report places the Commission's 2005 letter requesting an exemption to the Sunshine Act in a new and disturbing light. [5] That request was not approved; yet the recent actions reportedly taken by FCC staff suggest that some within the agency decided to grant themselves an exemption anyway. Furthermore, the actions described in the GAO report raise questions as to whether both the letter and spirit of the Sunshine Act are being ignored. Congress wrote such laws to give all interested parties—and not just those with the highest-priced lobbyists—equal opportunities to influence decisions that affect Americans in their daily lives.

The GAO report provides specific evidence showing that the Commission is failing in its responsibility to maintain a level playing field when dealing with nonpublic information. Such actions undermine public confidence in Commission decisions. As Chairman of the Commission, you have a responsibility to investigate these incidents and to publicly explain to the Congress and the American people what steps the FCC will take to ensure that its staff does not allow certain interests to have an unfair advantage when it comes to nonpublic information. The Legal Center strongly urges you take these steps with dispatch.

Sincerely,

Meredith McGehee
Director of Public Policy

cc: Chairman John D. Dingell, House Energy and Commerce Committee
Ranking Member Joe Barton, House Energy and Commerce Committee
Chairman Edward J. Markey, Subcommittee on Telecommunications and the Internet, House Energy and Commerce Committee
Chairman Henry A. Waxman, House Oversight and Government Reform Committee
Ranking Member Tom Davis, House Oversight and Government Reform Committee
Chairman Daniel K. Inouye, Senate Commerce, Science and Transportation Committee
Vice Chairman Ted Stevens, Senate Commerce, Science and Transportation Committee

[1] GAO-07-1046 at 3.

[2] Id. at 4.

[3] Id. at 24.

[4] 5 C.F.R. § 2635.703(b) (defining nonpublic information); 47 C.F.R. § 19.735-203(a) (including the content of public meeting agenda items within the definition of "nonpublic information" when such agenda items are outside the purview of the Government in the Sunshine Act of 1976 (5 U.S.C. 552b) ("the Sunshine Act")). See generally 47 C.F.R. §§ 0.601-0.607, 1.1206-1.1216.

[5] See Letter to Honorable Ted Stevens, Chairman, Senate Committee on Commerce, Science and Transportation from Chairman Michael Powell and Commissioner Michael Copps (Feb. 2, 2005) FCC/DA# DOC-256655.