Congressional Committee Members Release Report Lambasting FCC Chairman Kevin Martin
On Tuesday, December 9, the House Committee on Energy and Commerce -- the congressional committee that oversees the Federal Communications Commission -- released its majority staff report "on the bipartisan investigation of the FCC's regulatory processes and management practices." The report -- Deception and Distrust: The Federal Communications Commission under Chairman Kevin J. Martin -- stated that the investigation was prompted "by allegations to the effect that [FCC] Chairman Kevin J. Martin has abused FCC procedures by manipulating or suppressing reports, data and information."
"Our investigation confirmed a number of troubling allegations raised by individuals in and outside the FCC," said Representative Bart Stupak (D-MI), Chairman of the Subcommittee on Oversight and Investigations. "The Committee staff report details some of the most egregious abuses of power, suppression of information and manipulation of data under Chairman Martin's leadership. It is my hope that this report will serve as a roadmap for a fair, open and efficient FCC under new leadership in the next administration."
Representative John D. Dingell (D-MI), Chairman of the Committee on Energy and Commerce echoed Stupak's concerns: "Any of these findings, individually, are cause for concern. Together, the findings suggest that, in recent years, the FCC has operated in a dysfunctional manner and Commission business has suffered as a result. It is my hope that the new FCC Chairman will find this report instructive and that it will prove useful in helping the Commission avoid making the same mistakes."
The report said that "in an investigation of this nature," the Committee would usually hold hearings "to receive testimony from witnesses and to further examine the issues." But due to what the Committee called "the climate of fear that currently pervades the FCC," the report said the Committee found that key witnesses "were unwilling to testify or even have their names become known." For that reason, they issued a report in place of a hearing "to protect the many honest people who came forward under a promise of protection or anonymity." Chairman Martin was invited to meet with the Committee to discuss matters addressed by the investigation, but the report said he "ignored [the Committee's] invitation," as did his Chief of Staff Daniel Gonzalez and Chief of Public Safety and Homeland Security Bureau Derek Poarch.
In its 110-page report, the Committee described 12 allegations, ranging from retaliation against FCC employees who differed with the Chairman's policies to enhanced 911 wireless services to broadband over power lines (BPL). To go along with the 12 allegations, 22 exhibits were attached to the report, such as internal e-mails, e-mails from FCC commissioners to their staff, statements made by FCC commissioners and letters to and from commissioners (including Chairman Martin). Not all 12 allegations were substantiated by the Committee.
Broadband over Power Lines
Concerning BPL, the report alleges that FCC officials "ignored complaints of radio frequency interference caused by BPL high-speed Internet technology, delayed an enforcement investigation for two years and improperly withheld engineering data regarding BPL from the public."
The report found that in October 2004, as then-Chairman Michael Powell issued his final rule "defining BPL access and setting technical and administrative requirements to protect licensed radio operators from harmful interference," the FCC "withheld from the public certain engineering reports on which it relied in promulgating the rule" from the final rule and order.
Even though the BPL rules were adopted during Powell's tenure, the report found that "it was under Chairman Martin that the Enforcement Bureau and the General Counsel continued to withhold the redacted engineering reports and insisted on doing so in the course of the ensuing litigation [with the ARRL]."
The report goes on to say that on April 25, 2008, the US Court of Appeals for the DC Circuit found that the FCC, in the case filed by the ARRL, "violated the Administrative Procedure Act when it played 'hide and seek' with engineering data used in its support of the order and 'cherry-picked' a study on which it had relied."
"The fact that the FCC withheld the required engineering reports in this matter," the report concluded, "indicates poor judgment and an attempt to hide critical weaknesses in its decision. Ironically, the FCC's attempts to hide this information only served to provoke suspicion and its handmaiden, litigation. This case [filed by the ARRL] illustrates the extent to which a culture of secrecy has developed at the FCC that is as counterproductive as it is unnecessary." The report states that this "particular situation" has been corrected by the courts and technological issues arising from BPL have been "rendered largely moot over time due to improvements" in BPL technology.
"It is distressing, but unfortunately not surprising," said ARRL Chief Executive Officer David Sumner, K1ZZ, "to read that the FCC's mishandling of the BPL issue was simply a part of a broad pattern of dysfunction at the Commission. This is a relatively recent development and is unprecedented in the ARRL's long experience with the FCC -- an association that dates back to the very creation of the agency, 20 years after the founding of the ARRL. While the marketplace failure of BPL and the steps taken voluntarily by the few companies that have deployed BPL systems have combined to minimize interference, the regulatory issue is by no means moot. The rules remain inadequate."
Sumner continued: "More than seven months after the Court remand, the FCC has done nothing to correct its errors, nor has it complied with the very specific instructions from the United States Court of Appeals. These instructions included the disclosure of the studies that it intentionally withheld from the public, but upon which it relied in adopting its rules. Indeed, the only step the Commission has taken since the Court's remand order is to mount an unsuccessful effort to oppose our claim for reimbursement of the printing costs for the briefs in the case -- a small fraction of the expenses incurred by the ARRL in our appeal -- expenses that would not have been necessary had the Commission followed the law in the first place."
Other Findings by the Committee
The report also showed instances of where Chairman Martin "manipulated, withheld or suppressed data, reports and information," and said Martin's "manipulation [of another report] may have damaged the credibility of the Commission, and certainly undermined the integrity of the staff. Moreover, it was done with the purpose of affecting the congressional decision-making, in that it was issued as a report to Congress."
Saying that FCC matters have not been handled in an "open or transparent manner," the report said the FCC "rais[ed] suspicions both inside and outside the Commission that some parties and issues are not being treated fairly." The report stated that the Committee's impressions were "confirmed" when it discovered that Chairman Martin made a "preemptory reversal" of [a report's] conclusions and that Martin did not seek "further public comment or conduct further studies" thus giving the impression "that the issue was not handled fairly or openly."
The report also found that Chairman Martin's "heavy-handed, opaque and non-collegial management style has created distrust, suspicion and turmoil among the five current Commissioners." The report states that Martin does not afford his fellow Commissioners "direct and unfettered access to the Commission staff and their expert advice, thereby hindering the ability of other Commissioners to carry out the duties of their offices and the work of the Commission."
The report also found that Commission staff have not been "effectively managed." When Martin first became Chairman, he "imposed a major reshuffling of FCC staff throughout the agency." While the report said that a "certain amount of reorganization is not unprecedented" when a new Chairman begins his term, the reorganization "was highly unusual in both its breadth (nearly every senior position at the agency changed hands) and its depth (even a number on non-management line staffers found themselves inexplicably reassigned)." Calling it a "waste of resources," the report pointed out that senior employees with "extensive experience and expertise" were reassigned to junior-level positions; as a result, "it appears that some important Commission proceedings were delayed."
Over the course of its investigation, the Committee staff reviewed "several hundred thousand documents, including 95 boxes of paper documents; conducted 73 interviews of current and former FCC employees and individuals associated with the telecommunications industry; solicited and received e-mails from FCC employees and contractors at a secure e-mail address established for this purpose, and reviewed dozens of allegations." The report pointed out that since the investigation, Chairman Martin has taken "some small steps" to address some of the problems outlined in the report.
The Committee also emphasized that not everything they found is included in its report: "A few allegations were received so recently that they have not been investigated and are not included [in the report]. We have also excluded matters that seemed trivial per se. Still, other allegations have not been adequately investigated because the FCC has not yet produced all of the records requested by the Committee."