FCC Sued Over DTV Transition Info

Conservative group claims FCC violates FOIA

An FCC that prides itself on transparency and openness (see sidebar) is under fire from a conservative group that sees it quite differently. A suit in federal court has been filed over documents that the agency has been hesitant to provide, according to the group, Judicial Watch.

The commission counters that it was within its rights to do so. It is also awaiting White House input on other documents.

The group has filed a Freedom of Information Act lawsuit in U.S. District Court for the District of Columbia in an attempt to compel the FCC to turn over documents related to the DTV transition.

Judicial Watch filed its first FOIA request in February. This followed a press report claiming a telecom adviser to President Obama's transition team stood to benefit from the delay of the transition; the delay, it was stated, would slow up Verizon's rollout of a new broadband network that would compete with existing service Clearwire.

Clearwire is backed by strategic investors that include Intel Capital, Comcast, Sprint, Google, Time Warner Cable and Bright House Networks. The story was referenced by Republicans in Congress during a brief debate over the bill that succeeded in moving the DTV date from Feb. 17 to June 12.

In its lawsuit, Judicial Watch says the FCC provided highly redacted documents related to the decision to delay the transition (essentially comprising a series of status reports), withheld other documents and provided no communications with the White House concerning the delay.

While the FCC did not comment—a spokesman said the commission does not comment on ongoing litigation—a copy of the commission's May 8 response to Judicial Watch does indicate the FCC's justification for the timing and nature of the material it did release. The document also includes a promise to supplement the response after it had checked with the White House about what privileges, “if any,” it would assert.

The White House did not return a request for comment on the suit or the timing of its own response to the FCC.

“There is no provision of FOIA law that allows the White House to screen requests for potentially damaging information,” says Judicial Watch President Tom Fitton in announcing the suit. “The FCC has an obligation to abide by the law and either release the documents or provide a justification for withholding them.”

But in the May 8 letter, FCC Associate General Counsel Joel Kaufman points out that Justice Department guidelines on FOIA requests involving the White House and the Executive Office of the President have to be vetted there first, in case the White House plans to assert any privileges regarding their handling.

Kaufman also says that the FCC would not release some of the records discussing Congress' decision to delay the DTV date because they are “deliberative materials” that can be withheld under an existing FOIA exemption. The same exemption applies to some draft memos the FCC located, which according to Kaufman do not represent “final views” of the agency.

Judicial Watch was not satisfied. In its suit, the group said that the documents it eventually received (on June 16) were heavily revised without sufficient explanation of the deletions—the group wanted specific citations to FOIA exemptions—and did not include the White House-related material. Now the issue moves from a series of letters to the letter of the law.