FCC Led Communications Agencies in Holding News Events That Were Not on the Record

The FCC held some dozen events for news media that weren't on the record in the first half of this year, more than any other communications-related federal body. Such commission media events, often "on background" where officials couldn't be identified, numbered twice as many as were fully on the record. Partisan politics (see 1510280062 and 1512150011) and a divided FCC (see 1512150030) appear to be making commission officials more cautious in what they say when their names are attached, said experts who reviewed a Communications Daily database. They said such politics partly reflect a politically divided Washington. That's apparent to a lesser degree at NTIA and the Office of the U.S. Trade Representative.

Like the FCC, NTIA and USTR held more news events that weren't on the record than those that were. But the absolute numbers were smaller than at the commission. Experts said the FCC stands out for its extensive use of events where officials speak on behalf of the agency to groups of reporters but the officials can't be identified by name or quoted verbatim. Further, the officials can't be described as speaking in their official capacities sanctioned at the highest levels and on behalf of the agency or its head. Experts noted that even a decade ago, most events for news media were entirely on the record, and anything off the record was mostly limited to officials' conversations with individual journalists.

The FCC doesn't comport with some PR or journalism best-practices, as they were described in interviews with practitioners. The National Association of Government Communicators, which represents government spokespeople, advises against labeling an event that's not on the record as a news event, said Chris O’Neil, a volunteer communications director for NAGC. Such events don't "foster greater transparency or greater accountability in government," he said. The Society of Professional Journalists and other media associations have repeatedly brought such concerns to the Obama administration (see 1511130013). They had a meeting to voice those frustations Tuesday with White House officials like Press Secretary Josh Earnest, said SPJ Freedom of Information Committee member Kathryn Foxhall.

The government anonymity is “disappointing,” said University of Maryland journalism professor Mark Feldstein, a former broadcast and cable-news journalist. "It certainly shows a continuation of a trend that started at the more high-visibility and controversial government agencies and has trickled down over the years even to some of the most obscure ones." Many PR experts said they couldn't recall any agency other than the FCC that holds news events that aren't on the record so routinely on matters unrelated to national security. "I personally haven’t seen it" as a Capitol Hill press secretary, said Dan Scandling, now an Ogilvy senior vice president. "If the media is going to allow it, as a [PR] practitioner, you give us an inch, we’re going to take a mile." Others, too, leveled blame at reporters for participating in such briefings. Reporters from this and many other publications participate in such briefings, which for purposes of this report are defined as those that an agency itself organizes and are aimed at news media.

What was said at not-on-the-record briefings rarely made news, and was often accompanied by news releases, blog posts and other public statements. FCC officials also spoke off the record at least several times at industry and other events in the first half of this year, more than the combined number of such instances at all other communications-related agencies. The topics weren't all necessarily controversial: June 10, FCC officials working on the agency’s healthcare task force spoke to an FCBA off-the-record brown-bag lunch about the initiative.

Busy Times

However, the six-month period in our data analysis was busy and contentious. During it, the FCC adopted on a party-line vote net neutrality rules (see 1502260043) that are now being appealed in court, floated procedures related to government auctions of spectrum that later were approved 3-2 by politically divided commissioners, and issued a record-setting proposed $100 million fine against AT&T (see 1506170050), also over dissents of Commissioners Mike O'Rielly and Ajit Pai. Such issues were discussed by FCC officials at "on background" news events.

The agency under Chairman Tom Wheeler took "significant steps to provide the press and public timely information about pending and current Commission actions," a spokesman emailed us. "Briefings were conducted on 'background' by Commission staff to discuss open meeting items that had been circulated, but not approved. Under these ground rules, reporters are free to use the information provided, but may not use verbatim quotes or name the officials in order to allow a more free exchange of information while respecting the fact that the proposals have not been adopted by the full Commission and may change. In addition, fact sheets, data, on-the-record statements, blogs or other supporting written materials were provided to accompany these briefings."

In total in the first half of 2015, "the FCC conducted 23 press briefings, 21 of which were open to all members of the media who chose to attend," the spokesman said. "Of these, 12 were on-the-record press briefings by the Chairman and staff." The disparity between our figures and the agency's is that it counted as a news conference each time Wheeler spoke to reporters every month after the commissioners' public meeting as well as separately the comments that agency staff made immediately following Wheeler about specific items that were voted on. The FCC said our analysis was wrong to not consider off the record and on background events separately, because they're "two fundamentally different terms," emailed the spokesman. “The FCC’s use of regular background briefings when open agenda meeting items are circulated provides the entire press corps that follows the FCC with information about the Chairman’s proposals, while respecting the fact that no proposal is final until all five commissioners vote at the Open Meeting -- which typically is followed by an on-the-record press conference. Off-the-record briefings, by contrast, provide the press and public with no information."

The agency is navigating "highly politicized waters," said P.J. Crowley, who teaches crisis communications at George Washington University and was a State Department spokesman under Secretary Hillary Clinton. "The higher the tension inside the commission, the more likely you are to communicate, but not in a way where you might be hauled in front of a House subcommittee." While he was at State, it held a daily on-the-record briefing for reporters, with a session afterwards on background, Crowley recalled. "To the extent that agencies are now communicating more on background and not on the record, I think that is just a reflection of what they see as a higher risk factor." Given "the political climate that we’re in," he said, that's understandable.

NTIA during 2015's first half held only one news event, and it wasn't on the record, on Feb. 27, about privacy principles the Obama administration released that day (see 1502270052). And Feb. 10, NTIA Administrator Larry Strickling and Associate Administrator-Office of International Affairs Fiona Alexander were scheduled to have addressed an event partly organized by the FCBA in Singapore during a meeting of ICANN. It was a "successful event with a good turnout in the midst of the week of ICANN 52 meetings,” a writeup said. The FCBA, which held four of the six events where FCC and other government officials spoke off the record during this year's first half, had no comment.

"NTIA provides information to reporters and the public in an open and transparent manner," a spokeswoman emailed. "In limited instances, we have provided background briefings to reporters in an effort to explain complex issues with NTIA staff who don’t typically interact with media. Reporters have communicated to us that they find these interactions helpful.”

Breadth of Subjects

At the FCC, officials spoke on a not-for-attribution basis on many subjects. Such issues included controversial subjects like an order that pre-empted some state restrictions on communities building out broadband networks, on which O'Rielly and Pai dissented and which is being appealed in court by North Carolina and Tennessee (see 1511090056). The Pennsylvania Public Utility Commission tried to correct the record from what was said anonymously (see 1502020037), telling the federal commission that the state didn't completely bar municipal broadband (see 1502130031).

Some things that were the subject of background briefings were approved unanimously: rules for a new so-called Citizens Broadband Radio Service, and letting FCC staff negotiate moving from Neustar to an Ericsson affiliate a contract for assuring that people's phone numbers move with them when they change providers locally (see 1503040053). Neustar shares closed down 11 percent the day of the preview of the item that was later approved.

Accountability gets lost in not-for-attribution events, experts agreed: Getting to the heart of important regulatory issues thus becomes more difficult. It "restricts the untrammeled flow of information to the public, about how their tax dollars are really being spent," University of Maryland's Feldstein said. "It allows them to get their message out in the most controlled way possible with the greatest defense possible."

"People are saying things where they are not held to account," Crowley said. On-the-record dialogue is "an important element of government accountability," he said. Corporate PR practitioner Scandling is "surprised the media lets you [PR people] get away with it," he said. "Is that really transparent?" If none of a briefing is on the record, "I’m not sure how that’s a press conference," Scandling said.

Cooperation, Transparency Varies

The extent of agency transparency varied widely, as did agencies' cooperation with the creation of our database. The FCC fully cooperated, confirming after a few months of queries the accuracy of all information in the database and without a Freedom of Information Act request. So, too, did the FTC and NTIA.

The FTC alone among agencies here said it doesn’t hold any off-the-record briefings with groups of reporters. Transcripts are generated at such "press availability" events, and the documents are always released, a spokesman said. In the FTC's one instance in this database, Commissioner Julie Brill spoke on a Jan. 29 Center for Democracy & Technology panel (see 1501290053) about privacy that wasn't on the record. Brill had no comment, the FTC spokesman said. CDT's "always on" panels are done under Chatham House Rules, so what's said isn't attributable to the speaker, though formal presentations at such events are on the record, said a spokesman. "CDT uses Chatham House Rules for a number of our events and in our policy working groups. We believe this allows for a more open, honest, and frank dialogue across sectors and interests, which leads to better informed policy positions and outcomes. This is not something we do for government officials, nor was it requested by any as terms of participation."

The USTR held frequent news media events that weren't on the record and didn't cooperate in the creation of our database. Like the FCC, USTR held more events for groups of reporters that weren't on the record than were on the record. The trade agency often held events that had a portion on the record, where top officials and sometimes legislators would speak, and then a portion that wasn't on the record, where staff spoke. The USTR had no comment after months of requests via FOIA and by phone, email, U.S. mail and facsimile.

Best practices for any agency in dealing with news media and the public are to be more transparent than the FCC was, government PR veterans and journalists said. "If you’re out there consistently not being quoted, not attributing information to a credible source, you are not furthering the integrity of the organization," NAGC's O'Neil said. "I cannot imagine a situation where that is beneficial."

SPJ's Foxhall compared government officials speaking anonymously to officials misusing public resources. Like the author of this story, she's on the board of the SPJ D.C. Professional Chapter, and she was part of Tuesday's White House meeting. The White House didn't respond to requests for comment by phone and email over several months. "It is very distressing," Foxhall said earlier of the government anonymity. "It shows a dictatorial attitude toward the press, but more importantly, toward the public."