Commerce Committee Involvement Unnecessary to Force FCC’s Hand for LightSquared Documents, Says Grassley

While it’s unclear how long the FCC policy has been in place -- formally or informally -- former FCC officials under both Republican and Democratic administrations were sympathetic to the FCC’s position on the matter, they said in interviews. But multiple government watchdogs said they're skeptical any agency can stand behind procedure to refuse a member of Congress.

The Grassley office has talked with staff of House Commerce Chairman Fred Upton, R-Mich., and Senate Commerce Chairman Jay Rockefeller, D-W.Va., but Grassley wants the FCC to send him the documents directly, the Grassley spokeswoman said. “Sen. Grassley would welcome support from Sen. Rockefeller and anyone else for his document request but ultimately believes the FCC should respond to a duly elected member of Congress, as Sen. Grassley is, and that an intermediary should not be unnecessary.” Grassley’s staff “has talked to Rep. Upton’s staff about this issue but if we relied on Rep. Upton, that would buy into the FCC’s premise that only chairmen of jurisdiction merit an agency response,” she said. “Sen. Grassley doesn’t accept that premise.” The FCC didn’t comment.

The meeting between Grassley and Upton staffers happened “some time ago,” the Grassley spokeswoman said. “Sen. Grassley’s staffer reached out to explain our interest, Rep. Upton’s staffer listened, and that was about it,” she said. Getting Upton to ask for the documents is “not an angle we're pursuing since we don’t accept the FCC’s jurisdictional pose.” Grassley and Rockefeller had also discussed the dispute, but nothing was resolved.

There is precedent for a federal agency to respond to a document request from a senator whose committee lacks direct oversight, the Grassley spokeswoman said. For example, Grassley “did tons of [Securities Exchange Commission] oversight (and got 10k pages of internal docs on an open case) through the Finance Committee, even though the Banking Committee had primary jurisdiction,” she said. The Judiciary Committee does have oversight over the FCC with regard to mergers and antitrust, “so we're not completely out of our jurisdiction,” she added.

"We are here to implement the will of Congress,” Commissioner Robert McDowell said of requests in general for documents from members of Congress. “Congress has every right to know what it is we're thinking, and what documentation we are relying upon to make our recommendations,” he said in a Jan. 4 interview. “As a matter of good government, you want to be as transparent as you can, especially when asked by members of Congress."

Some proponents of government transparency said the commission must guard its independence when considering document requests from legislators. “The commission needs to be deferential to Congress -- and, in my experience, usually is,” said former Democratic Commissioner Henry Rivera. The agency also “needs to protect its deliberative processes,” said Rivera, now a communications lawyer at Wiley Rein. “To the extent third parties request documents that the commission uses in its deliberative process, the commission needs to be very concerned about those sorts of requests and the precedents releasing such documents might create."

Several former FCC officials said they weren’t sure if such a policy was in place that dictated how the agency would respond to Congressional document requests or if any similar circumstance ever came up. They did say if such responses were obligatory, it could have posed a serious burden on the agency. Under former FCC Chairman Reed Hundt, for instance, such a response to document requests from an individual member would have drawn the ire of the relevant committees, one official said. The agency would have been “lambasted” for “not understanding the rank and privilege of committee chairs in Congress,” he said. The chairs of the committees would “have gone ballistic” if the FCC were to respond to every such request, he said. Referring to the two nominees, Hundt pointed to the hold on a “rock-ribbed intelligent” conservative and a respected democratic Congressional staffer as proof of a poorly functioning Congress.

Another former official, who couldn’t remember any similar events coming up when he was at the agency, said he understood why the FCC would want to limit who it is obligated to respond to, but there likely would have been a concerted effort to work with the member, even if not through a formal correspondence. A formal response would open the agency to Congressional requests on just about any issue, he said. It seems like “a reasonable place to draw a line,” said another former FCC official. If a member has legitimate concerns on a specific subject, they should be able to persuade the relevant committee to look into it, he said. At the same time, there’s no law that prevents the FCC from responding or Grassley from asking, he said.

Typically, independent agencies aren’t compelled to fully or quickly respond to an individual member’s request, said a former Congressional Research Service official, who was asked about independent agency response to individual members of Congress in general. “An individual member may certainly make inquiries directly -- or request [the Government Accountability Office] or a relevant inspector general” to make the inquiry, he said. “But, obviously, unless that Member is strategically located, he or she may not always receive the timeliest or most comprehensive response from the agency in question. GAO and IGs, moreover, have discretion over their ability to respond to congressional requests."

It makes sense for an agency to try to limit the number of document requests it receives to reduce burden, but it’s “bad to flatly refuse a request from a member of Congress,” unless there is good reason, said Sean Moulton, federal information policy director of government watchdog OMB Watch. It’s one thing if the agency says a request is too burdensome, for example, but standing on procedure alone isn’t a good excuse for refusing a member of Congress, he said. The oversight committee can help filter document requests to avoid duplication, but individual members of Congress at times have valid questions that the committee simply may not be interested in asking, Moulton said. At a minimum, the agency should treat the member’s question as they would a Freedom of Information Act request, he said.

Multiple committees can have jurisdiction over an agency, and Grassley’s Judiciary Committee has some jurisdiction over the FCC, said Anne Weismann, chief counsel of Citizens for Responsibility and Ethics in Washington (CREW), a government watchdog that has sought documents on LightSquared. Allowing requests from one committee only could keep out important views, she said. Weismann said she disagrees “with the FCC’s reliance on the CRS manual.” The provision cited by Genachowski “simply states the correct proposition that individual members don’t have subpoena power, as subpoenas must be authorized by the vote of an entire committee, nor can they on their own hold hearings,” she said. “But I don’t think CRS is saying that as a result, requests from individual members are somehow improper or should be ignored.”

It’s “insane” to only allow document requests from chairmen of the committee, said Sarah Dufendach, legislative affairs vice president for Common Cause, another government watchdog. That would mean the FCC only has to respond to the party in control, she said. Requiring requests to come from the committee of jurisdiction is “more defensible,” but it seems unfair to shut out the minority party, she said.