CAC Controversy Surfaces Again, Now on Transparency

By the FCC’s estimates, nine members of the committee represent general consumer interests, compared with 17 on the past version. Members the regulator deems to represent industry now number eight, versus six previously. There are also other types of members. Rosters of this committee can be compared with the previous one.

The agency is being overly secretive in keeping private the documents showing who applied to be on the panel and not releasing applicants' resumes, said all who reviewed a Communications Daily April 12 Freedom of Information Act request. The agency rejected the FOIA request almost entirely Sept. 30, the day FY 2019 ended. Comm Daily appealed Oct. 2.

The FCC contends release of CAC members' professional accomplishments and job history would violate their privacy. It contends personally identifiable information would be disclosed, even though the FOIA request said it didn't want any PII information. The commission says releasing records "of preliminary staff discussions concerning the CAC nomination process and other advisory committee issues" would violate the deliberative process. The regulator also maintains attorney-client privilege could be violated by making public advice from the commission's ethics lawyers.

"Not only does [Pai] not value vehicles that actually protect everyday people, he will do everything in his power to not be public and transparent about it," said Color of Change President Rashad Robinson. It appears the FCC has "to hide that they are putting in place people who have a deep history of protecting business interests on a council that’s supposed to be about" consumers, continued Robinson. "What are they hiding by not responding to FOIA requests?" asked Robinson, whose group generally opposes companies dictating how government oversees industry. Robinson raised such concerns about CAC in April. Commissioner Mike O'Rielly told us then he thinks groups concerned about taxpayer spending can represent consumers, but the agency's two Democratic members shared some of Robinson's fears.

The CAC has "a deep roster" with "diverse viewpoints" and the agency looks "forward to their input," emailed a commission spokesperson Thursday. "This roster better aligns the membership with the issues the CAC is currently focused on, like robocalls and spoofing." Members have "great expertise -- including nationally recognized consumer organizations and some who have been known to disagree with Commission leadership,” the spokesperson added. Past CAC members who weren't allowed to return now served at least two terms, the representative noted. Such members could be reappointed to future incarnations if precedent holds, the rep added.

Weak FCC Case

The agency withheld all but two pages of documents, shielding under FOIA "more than 175 responsive emails and other documents." Experts said the regulator should have said what it's withholding, with more specific reasons. All said the agency likely could release more information without violating anyone's privacy.

In court or under the pending appeal to the agency, it's unlikely the secrecy would be sustained, experts said. Even if the FCC shared more of its rationale, these experts couldn't think of many reasons it would withstand scrutiny.

Agency advisory committees don't usually get such deliberative-process exemptions, said Tom Susman, an American Bar Association adviser. He personally thinks the agency wouldn't “prevail under any kind of independent assessment." He deemed withholding resumes of applicants who didn’t get accepted "a stretch. It may be arguable, but I think the judge would reject it.” For CAC members, “the law is fairly clear that it is not an unwarranted invasion of personal privacy," Susman said.

Two members of the Society of Professional Journalists Freedom of Information Committee said the commission should release the documents. (This story's author is immediate past president of SPJ's Washington, D.C., chapter.) “The overly broad secrecy in this case, particularly the refusal to provide resumes, particularly for the sitting members" concerns SPJ's David Cuillier. “Release of a resume is not an unwarranted invasion of privacy by any common persons' thinking," emailed Cuillier, University of Arizona School of Journalism associate professor, who teaches public affairs reporting.

Withholding documents of unsuccessful applicants “can be a common practice," in government, said SPJ's Haisten Willis. “It’s certainly not something people would expect to be kept secret." An Atlanta freelance journalist, Willis thinks “the public should have a right to know what it is these people have done and what qualifies them."

It's highly debatable whether applicants have any presumption of privacy, said many. "Any privacy interest kind of diminishes" when it’s a body with many applying and not getting on, said Reporters Committee for Freedom of the Press staff attorney Adam Marshall. He has "serious questions" whether applicants have "any privacy interest." It's unlikely the FCC would prevail on deliberative process, which Marshall notes FOIA experts call "the withhold it because you want to exemption." He said that under the 2016 FOIA Improvement Act, government must explain foreseeable harm from such releases.

The overarching reason to issue the documents is public interest in CAC, said FOIA specialists. "There’s a lot of interest in what the FCC and the [CAC] here decided to do in terms of its new composition and there are questions about how that might affect its functioning," said Marshall. "These are all discretionary exemptions that the agency has chosen to assert on a matter of great public importance." He "would urge the agency to change its mind here and release this."

CAC Tilt

CAC seems to have tilted toward industry-aligned interests, according to those who applied and didn't get on this version and some who sat things out.

Those turned down were left to guess why. They generally concluded the agency under Pai wanted to have more groups representing taxpayers and those more closely aligned with regulated industries. The committee's current focus on robocalls might have meant some past members with expertise in other consumer issues didn’t get picked.

The common thread among those whose organizations previously were represented but didn’t apply for this two-year term is that they expected they wouldn’t get on. National Digital Inclusion Alliance Executive Director Angela Siefer didn't apply again “as I did not see serving as a good use of my time," she emailed in April. “Interests of consumers are clearly losing priority at the FCC."

Consumer Action, Free Press and the National Hispanic Media Coalition (NHMC) were among organizations that failed to get on. Pai apparently wanted to add “a new ‘category’ of names and decided to reduce the numbers in the existing categories,” emailed Ken McEldowney, who previously represented Consumer Action on CAC. “He left me and others off but retained a number of consumer advocates.”

Some didn’t find out they couldn't join until the FCC announced the roster. There's no public criteria for selection and “no way of knowing why you came up short," said Benton Institute for Broadband & Society Executive Editor Kevin Taglang. "It always seemed kind of perfunctory; you put in your application and you turned up on the list again" in the past, he said. His group was represented there for a decade-plus.

Free Press Policy Manager Dana Floberg said it appears some groups opposed to certain Pai policies didn't make the CAC cut. She cited “a small but significant shift toward more industry representatives“ and “free-market groups" that “represent industry interests.” The "balance seems to be shifting in the wrong direction for the CAC to be a useful and functional representative for consumer interests,” she said. Floberg is disappointed the FCC isn’t being “more transparent when folks are raising questions," reflecting “a desire to avoid scrutiny."

Public Knowledge was on many past CAC versions. No one there had time to dedicate now, so it didn't apply this time, said PK President Chris Lewis in a statement. He was “encouraged to hear that other groups we often partner with like NHMC and Free Press were applying. Their exclusion is disappointing since the CAC should be overrepresented with groups that stand up for the values, needs, and concerns of consumers.”

Editor's note: This is one in an ongoing series of articles about the FCC and transparency. Previous articles examined concerns on the agency's withholding documents on another FOIA request (see 1910020003), and concerns about CAC membership (see 1904120044).