Net Neutrality Involvement by Alvarez, Sohn Highlight Revolving Door Practicalities

The reason, present and FCC officials say, is that blocking such activity is a complicated issue involving forging a balance between dealing with public concerns over undue influence on agencies, and avoiding rules so onerous they hinder the agency’s ability to hire staff knowledgeable about its specialized mission. Sohn, founder and former president of Public Knowledge, and others like Wheeler aide Daniel Alvarez minimized the number of meetings held with former clients and associates, an agency spokesman said. Government watchdog groups say the highly detailed executive order left many gaps.

The executive order “was a way to make Obama look tough on lobbyists, but there are so many holes it’s not changing the conversation," said Lisa Rosenberg, lobbying expert for the Sunlight Foundation. She laughed when told the rationale for why Sohn is allowed to participate in the net neutrality proceeding.

The revolving door swings the other way as well, public records show. The agency’s former general counsel and deputy general counsel are lobbying the agency, a little more than a year after they left, advocating for Google and CTIA, respectively.

Obama's Order

Obama’s executive order set a two-year restriction on officials being involved with issues involving their former employers. For some high-level officials, including political employees and non-career Senior Executive Service employees, the rule doubled an existing one-year restriction. Among the 20 FCC officials the agency says are subject to the longer restrictions are Wheeler, the four commissioners and some of the chairman's and commissioners' top staff. Other senior officials at the agency, including such career SES positions as general counsel and deputy general counsel, were not covered by the executive order and are still subject to a one-year restriction, the agency spokesman said.

In addition to running an organization active in the net neutrality debate, ex parte filings like this of a December 2010 meeting with agency officials show Sohn advocated Public Knowledge's position on the issue before joining the FCC. Sohn, who has some public relations-related duties, also is among those going through the PR revolving door at the FCC (see 1412170044).

Sohn, who moved to the agency directly from Public Knowledge when she was named Wheeler’s special counsel for external affairs in November 2013 (see 1311050058), is among those subject to a two-year restriction, the spokesman said. The restriction, though, was narrowly defined to “any particular matter involving specific parties that is directly and substantially related to [the official’s] former employer or former clients, including regulations and contracts.”

Net neutrality is not an issue “particular” to Public Knowledge, the FCC spokesman said. It is “a matter of general applicability, affecting entire industries, so it is not covered by the two-year bar,” he said.

In carving out the distinction, the executive order still allows a recently hired official from a company or interest group to deal with an issue in which their former employer has a stake, Rosenberg said. The net neutrality issue “could cause a telecom company to gain or lose millions of dollars," she said. "It’s hard to believe that anyone coming from that industry isn’t going to have its interests in mind.” Public Knowledge Senior Vice President Harold Feld declined to comment.

Alvarez was hired by the agency at the same time as Sohn. Though public records list Alvarez as having been Comcast’s counsel while an attorney at Willkie Farr, ex parte filings don't show him representing the company at the commission after a Dec. 22, 2010, letter about testing requirements for modem manufacturers -- a time beyond the two-year window. Alvarez, for the purposes of complying with the executive order, considers his joining the agency last year as the point at which he stopped representing Comcast and other clients, the spokesman said.

Free Press President Craig Aaron said in general “you could stack all the people on the 8th floor who’ve had time spent with the industry and it would be 100 times taller than Gigi Sohn.” The revolving door "slanted the agency against real Net Neutrality, and it took a huge public push and a presidential assist to get Title II even on the table," Aaron emailed about Obama's call for common-carrier rules under the Telecom Act for broadband. "I think an agency better attuned to the public than industry might have figured things out faster.” Free Press backs Title II reclassification.

Complex Issue

Critics of the revolving door acknowledge no laws are being broken or ethics betrayed. Advocates on both sides of the net neutrality debate are also divided or uncertain if the revolving door practice will affect the debate’s outcome.

Ex parte filings show that Sohn has met only once with Public Knowledge on net neutrality, and Alvarez has not met with Comcast at all. Alvarez has gone further, not meeting with any of his former clients, those now representing the clients or his former colleagues at Willkie Farr, the agency spokesman said. Sohn’s meeting with Public Knowledge on net neutrality came Nov. 10, when representatives from 13 public interest groups, including Sohn’s former organization, met with Alvarez, Sohn, Wheeler and two other officials, according to an ex parte filing. Officials covered by the executive order, regardless of whether an issue is one of general applicability, are allowed to meet with former employers only if there are five other stakeholders present, said a March 26, 2009, Office of Government Ethics directive.

Two other meetings between Sohn and Public Knowledge about the proposed Comcast/Time Warner Cable deal Sept. 23 and broadcaster sharing agreements Jan. 22 also involved at least five groups, filings show.

The “benefit of the doubt” should be given “to an employee's integrity to serve the agency unless a reason appears to conclude otherwise,” said President Randolph May of The Free State Foundation. Though the group’s opposition to a Title II net neutrality approach puts it in opposition to Public Knowledge, May said he has no issues with Sohn’s involvement. Past employment often points to the mindset and social sphere they operate in, Aaron said, so it doesn’t necessary predict how someone will act upon joining the agency. Matt Wood, Free Press policy director, started out at a law firm representing telecom companies, Aaron noted.

Some revolving door "rules are necessary from a public perception perspective, but you can go overboard,” said John Nakahata, former chief of staff to FCC Chairman William Kennard. The effect of the Clinton administration’s five-year lobbying restriction for senior officials after leaving office under that administration “was that it pretty clearly discouraged some really good candidates from going into government,” said Nakahata, now a telecom lawyer. A one- or two-year restriction “is fine,” said Blair Levin, former chief of staff to Chairman Reed Hundt. It “makes it sometimes hard to recruit great folks," Levin said. "Certain kinds of bans make it nearly impossible."

FCC chairmen and chairwomen hire teams, Levin said: “If someone’s really being a hatchet person [for a particular interest], other people will serve as a counterforce.”

Two-Way Door

Among those classified as career SES employees and subject to a one-year ban on communicating with the FCC, not to the executive order, according to the agency, are former FCC General Counsel Austin Schlick and former Deputy General Counsel Peter Karanjia.

Schlick left the FCC in June 2012 (see 1205290088), and that October he was named Google’s director-communications law. Ex parte filings indicate he didn't have contact with the agency until after the one-year restriction, until April 18, 2014, when he joined several industry and public interest officials in a meeting with Wheeler and other officials on the incentive auction, an ex parte filing said. Schlick and Google declined to comment.

Karanjia left the FCC in September 2013 to be co-chair of Davis Wright Tremaine’s appellate practice group (see 1309170033). Ex parte filings don't show any meetings with the agency for more than a year after he left. Karanjia, representing CTIA, and other industry officials met with officials in the general counsel’s office Nov. 18, more than a year after he left the agency, urging the commission to name Telcordia the next Local Number Portability Administrator, according to an ex parte filing.

Karanjia also declined to comment. Michael Altschul, CTIA general counsel, said in a statement that the association "complies with the ethical and legal requirements for all employees’ interaction with the government and follows the advice of both government and private counsel.”