FCC Chairman Julius Genachowski has told Rep. Darrell Issa
(R-Calif.) that FCC attorneys are not aware of any violations of ex parte rules
concerning any conversations FCC officials may or may not have had with the
administration about its network neutrality rulemaking.
But he also said that any conversations before Oct. 22
would not have been subject to disclosure rules in any event.
Those answers came in a letter dated Feb. 23 but not posted
until March 10 in the FCC's electronic docket, and first reported by Politico's
Issa had written twice asking about the issue, first on Nov.
13 and again on Dec. 29, citing reports that "Obama administration
officials had knowledge of and potentially contributed to crafting of these
proposed regulations [now approved regulations]."
He also pointed to the fact that on Sept. 21, both the
chairman and the President had separately, and almost simultaneously, announced
the plan to propose net neutrality regs. That, he said, would be a violation of
ex parte rules, which he said would require that coordination to be publicly
disclosed, as well as a "serious breech of the independent proceedings of
The chairman countered that the Communications Act allows
the chairman to represent the commission in meetings with other government
officials and agencies. He also said that the relevant ex parte procedural
disclosure rules generally don't apply until the agency releases a notice of
proposed rulemaking. "In this instance," he said, "consistent
with general agency practice, prior to the release of the Open Internet NPRM on
Oct. 22,2009 the open Internet matter was an "exempt proceeding"
under the ex parte rules. Thus, for example, no disclosure requirements applied
in September 2009."
A spokesperson for Issa had no comment on the congressman's
reaction to the chairman's explanation.