Genachowski Staffers Broker Closed-Door Meetings on Broadband Rules

The FCC acknowledged that the meeting had occurred in a blog entry by Chief of Staff Eddie Lazarus. “Since the D.C. Circuit’s decision in the Comcast Internet-discrimination case more than two months ago, there has been a vibrant debate among stakeholders from all parts of the broadband community on the best path forward,” Lazarus said. “Some stakeholders have shared their ideas with staff at the Commission, including ideas for legislative options. Senior Commission staff are making themselves available to meet with all interested parties on these issues.”

Lazarus said meeting participants are not required to file ex parte letters on the Monday meeting or others to follow “to the extent stakeholders discuss proposals with Commission staff regarding other approaches outside of the open proceedings at the Commission.” But “to promote transparency and keep the public informed, we will post notices of these meetings here at blog.broadband.gov,” Lazarus wrote.

One FCC official said Tuesday there’s nothing out of the ordinary about the chairman or a commissioner calling in industry representatives for a meeting. “The ex parte rules envision just such meetings,” the official said. “This is not time for alarm. It’s helpful for all parties to be talking to the chairman’s office and all the commissioners’ offices as they see fit."

Verizon and other key stakeholders met with FCC officials Monday and Tuesday, Verizon CEO Ivan Seidenberg told us after a speech at Economic Club of Washington Tuesday. In his speech, he said the FCC has proposed an “unimaginative and overbearing set of rules” that will create uncertainty in the market and disincentives for capital investments and make the telecom industry less competitive. (See separate story in this issue.) However, he told us later, “we are hopeful” that an agreement can be reached. “As we've said and as we've demonstrated, communications companies will continue to work with the commission and other players in the Internet space to protect customers and ensure an open and robust broadband environment.” AT&T, NCTA, Google and Skype were among the companies that sent representatives to the FCC meeting.

Hill Democrats said they didn’t mind the FCC holding closed meetings with industry on possible telecom legislation. “If they're just having listening sessions and reaching out, I don’t have a problem with that,” Sen. Byron Dorgan, D-N.D., told us after the Democratic Senate policy lunch Tuesday. It’s appropriate for the FCC to have such meetings, Senate Commerce Committee Chairman Jay Rockefeller, D-W.Va., said after the lunch. “We're going to do some bill rewriting on [telecom],” and Congress and the FCC are “both working on the same stuff, the same matters."

"The FCC’s discussions with stakeholders about principles for network openness can be very constructive,” House Communications Subcommittee Chairman Rick Boucher, D-Va., told us in a voicemail. “Hopefully, they will lead to a consensus that will inform the FCC as it continues with its ongoing network neutrality proceeding and perhaps could become the principle that the FCC adopts as it carries that proceeding forward in order to ensure network openness."

But subcommittee Ranking Member Cliff Stearns, R-Fla., had a mixed review of the FCC meeting. “Reports indicate that the FCC has met with representatives of technology companies to discuss Internet regulation, even after the Courts ruled that the FCC lacks this authority,” Stearns said in an e-mail. “While I am happy that the FCC is getting stakeholder input, I continue to strongly oppose Internet regulation and any effort to redefine broadband should be left to Congress."

Few, if any, members of Congress appeared to know about the FCC meeting Monday before news broke about it. Senate Communications Subcommittee Chairman John Kerry, D-Mass., didn’t know specifically about Monday’s meeting, said a Senate staffer. But “discussions or ideas as to how best to shape legislation should by no means take place only on the Hill,” the staffer said. The Senate works closely with the FCC, so the FCC meetings with industry are complementary, the staffer said.

Rockefeller said he wasn’t sure why Friday’s Congressional staff meeting with interested parties will be closed to the public. But the senator defended the approach: “Sometimes you can discuss things better” behind closed doors.

But several public interest groups, including those supportive of Chairman Julius Genachowski’s reclassification proposal, questioned why the FCC would hold closed meetings at this time. “I don’t have a problem with the FCC hosting meetings, but it is important for the agency to make available pretty detailed summaries that reflect the substance of the discussions held with parties to any negotiations,” said Randolph May, president of the Free State Foundation. “I don’t have in mind the standard run-of-the-mill three sentence ex parte filing that contains little detail. And while it is not incumbent on the agency to allow all interested parties into the room at the same time, the same officials overseeing the negotiations should be willing to meet with anyone not in the room -- from Free Press to the Free State Foundation.”

"We're obviously very concerned about this whole process,” said Art Brodsky, spokesman for Public Knowledge. “One thing we don’t want to see is some kind of backroom deals easing the commission away from a process they've started. … We're frankly at a loss to figure out what the purpose of these meetings is.” The FCC is already developing a record on net neutrality and broadband reclassification, Brodsky added: “Why not just stick with the Administrative Procedure Act, because that’s the most open way to do it."

"It is stunning that the FCC would convene meetings between industry giants to allow them determine how the agency should best protect the public interest,” Free Press President Josh Silver said in a statement. “The Obama administration promised a new era of transparency, and to ’take a backseat to no one’ on Net Neutrality, but these meetings seem to indicate that this FCC has no problem brokering backroom deals without any public input or scrutiny."

"In some ways these FCC meetings are part of a larger collaborative effort among Congress, the FCC and the companies to probe for common ground on a fairly thorny set of policy and legal issues,” said Paul Gallant, analyst at Concept Capital. “When everyone has a lot at stake, there’s a natural instinct to open the lines of communication and see if there is any basis for compromise that works for everyone."

"It is not surprising serious attempts to reach common ground on critical broadband policy issues are being pursued at the FCC and on Capitol Hill in light of the intense controversy surrounding … Genachowski’s third-way broadband reclassification proposal just months before a midterm election in which a lackluster economic recovery, stubbornly high unemployment and the role of government are expected to be key issues for voters,” said Jeff Silva, analyst at Medley Global Advisors. “Despite the high stakes for industry and policymakers, the polarized nature of the debate to date suggests it could prove very difficult arriving at a compromise that could be translated into passable legislation in coming months. If anything, negotiations at the FCC and in Congress may serve once more to highlight fundamental philosophical and policy differences that have consistently divided the varied players on the question of broadband oversight and net neutrality.”