Tuesday, December 21, 2010

FCC's "Open Internet" Order Is Still A Secret 12/21/2010 San Francisco - Somewhere George Orwell is smiling. The full text of the FCC's "Open Internet" Order remains a secret. It remains secret even after it was voted on this morning by Commissioners. 

In remarks of this morning at the Commission's open meeting, Chairman Julius Genachowski, the Order's lead author, stated he is "proud of this process, which has been one of the most transparent in FCC history." 

The document as approved by a 3 - 2 vote remains hidden from public view as staff edits final copy. We reported yesterday that senior Commission officials describe this as a process of making final "tweaks." Meredith Atwell Baker, one of two Republican Commissioners to vote against the Order, stated that the final draft voted on was submitted to Commissioners just "12 hours earlier."

That draft, the one now being "tweaked" by staff after one of the most critical Commission votes of the Internet era, resulted from 3 weeks of work by Commissioners and staff. That cycle was launched by Genachowski's action of December 1 as he submitted his initial draft "on circulation" to fellow Commissioners and authorized staff.

The initial draft also remains a secret despite calls for its public release -- and thereby, god forbid,  the disclosure of its many critical details -- by Republican Commissioners, Members of Congress, and a variety of public interest groups and trade associations. It is that initial draft which this publication called for to be leaked to us on December 2 for immediate publication. That is the same working iteration of the Order which we issued a FOIA request for the following day.   

No one at the FCC leaked that first draft to us. Our has not received even a few pages of any working draft, as discussed with lobbyists during the scores of ex parte meetings held with Commission staff. 

In a discussion yesterday with the Commission's Office of General Counsel, we were told that the FOIA request would "be processed in  timely manner." Timely, of course, means we are not to expect any answer of substance, including a potential denial of release of the first draft, until the full '20 business days' allowed by the FOIA statute runs to its conclusion on January 4. Its called a slow roll.
So what's the big deal here anyway? 

The big deal is that there are some of us impertinent enough to, yes, actually want to study the arcane details, arguments, and legal citations of a document that holds untold impact for the most dynamic sector in the American economy. Some of us might actually desire to read the text of that complex and important document rather than take the word of Commission issued summaries, rare as they are. Having the final voted document in-hand allows us to see what Chairman Genachowski has cobbled together with (forgive us of this) the luxury of actually seeing and understanding what the Order says.

And that is the point.

The Order is the single most important regulatory document in U.S. telecom policy since at least the passage of the 1996f federal Telecom Act. The point is that the American people have a right to see all of the various drafts of the Order. The point we have a President that pledged to open our government, and to preside over the most transparent administration in history. 

We deserve to understand not only what it says at a detailed level, we deserve to understand how lobbyists and partisan Commissioners changed the working draft over the past 3 weeks. That is what full transparency means. That is precisely the type of transparency that President Obama promised us.

What we have instead is a controlled view of what the Order says. It is a view spun by paid media relations personnel on government payrolls. It is a view reported by selected media outlets to which advance copies of the Chairman's speeches have been given ahead of the rest of us. It is a view framed by the PR arms of some of the largest cable and telecom trade associations in the nation who have accessed pieces of working drafts during those scores of ex parte proceedings.

Much will be written about the significance of the Open Internet Order. The fact that so much national debate has raged over a document that the American public has not seen to date is surely not the smallest irony delivered to us by an Administration that pledged better.

Somewhere George Orwell is smiling.
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