FCC Exceeds All But One Other Federal Commission With After-Hours Releases

The FCC exceeds all but one other federal commission in after-hours document issuances, Communications Daily found, a practice that has the effect of delaying reaction by affected parties and that raises transparency concerns. Almost every other business day last quarter, the FCC on average posted something online about an hour after regular hours end at 5:30 p.m. Eastern. Only the Federal Energy Regulatory Commission (FERC) exceeded during Q2 the 27 items the FCC released after business hours, and most other agencies issued no evening items, we found through Freedom of Information Act and other requests to independent federal commissions with a national purview. Over half of late FCC items were from Chairman Tom Wheeler's office. The FCC released another 32 items between 5 p.m. and 5:29 p.m., also after most agencies stop issuing documents.

Publicizing agency letters to members of Congress, official FCC actions, and blog posts by officials including Wheeler at times of day most federal agencies stop issuing documents isn't new. A 2009 Communications Daily article investigated the practice (see 0901160137). This time, unlike with the previous database, the FCC fully cooperated and without a FOIA request. A spokesman said 4.92 percent of the 549 items the commission issued April 1-June 30, 2016, were publicized in evenings, and many were because of exigent circumstances.

Experts who reviewed summaries of our research said in interviews that FCC practices fly in the face of good government. It's akin to "the Friday afternoon news dump," said interim Executive Director John Wonderlich of transparency advocate Sunlight Foundation. "I had to chuckle, because it confirms what I think people who do a lot of work in D.C. assume." Tuesdays were the most popular day for the FCC to release items after 5:30 p.m.

Some find the practice annoying, making them work later or, in the case of a public interest lawyer who observes the Jewish Sabbath, wait 24 hours to read a 147-page document released on a Friday night. "You do start to dread things like the Friday afternoon before Memorial Day weekend, is there going to be some surprise of things being sprung out on you, but you adjust," said that attorney, Public Knowledge Senior Vice President Harold Feld.

“The FCC’s goal is to release all items within business hours," said the spokesman. "The FCC largely succeeds." The "rare occasions when the FCC releases items after business hours are, in many instances, attributable to technical difficulties, a statute of limitations, or a need to release finalized items as soon as possible, rather than waiting until the next day," he wrote. "For most documents, a record of these releases is published in the Daily Digest on the following morning.”

High-Profile Work

Evening releases encompass high-profile work, minor matters and much in between. Correspondence to Congress and/or a protective order on about $98 billion in telecom deals were released late, including on Charter Communications' now-completed buys of operators including Time Warner Cable, and Verizon’s still-pending buy of XO Communications. Documents came late on about $51 million in FCC penalties and the final text of an NPRM approved by politically divided commissioners proposing ISP privacy rules.

The commission spokesman said underlying decisions on major deals weren't released late, only routine information, while the penalty was subject to a statute of limitations. He said seven letters FCC officials including Wheeler wrote Congress were released late in Q2, but another 27 were issued during regular hours.

Upon seeing the privacy rulemaking released on a Friday evening, Staff Attorney Meredith Rose of Public Knowledge, which backed the proposal, tweeted: "This is why we can't have nice things, @FCC." She referred to a personal tweet by current FCC and ex-PK official Sherwin Siy, which said "this goes up at the hour that maybe 3 people will be paying attention.”

While Feld was "eager to read the details" of the exact language of the broadband privacy document released at 6:59 p.m. Friday, April 1, he knew the "headline results" based on the commissioners' vote the previous day, he said. "It doesn’t usually bother me to have a day off before delving into it," he said. "Everyone got used to it," since after-hours releases became a trend years ago, Feld said. The FCC spokesman said the NPRM was released at night "to make it available as soon as it was ready" and the public had earlier notice because it was approved by commissioners publicly the day before, which led to a news release during business hours.

Some would prefer that the FCC follow other commissions' policies. "Either send it out earlier in the afternoon or do it the next morning," said University of Arizona associate journalism professor David Cuillier, a National Freedom of Information Coalition board member.

Transparency Urged

It would be transparent if the commission no longer released items after an established hour, said experts: Not doing so gives rise to allegations of manipulation. "I have never heard of this before, and I have been involved in public affairs coverage for quite a while," Cuillier said. "If an agency really cares about the public and its constituents, it should do its best to serve them, and putting information out at night is not the best way to serve the public." That "is just flipping off the public," said Cuillier. He's on the Freedom of Information Committee of the Society of Professional Journalists. (The author of this story is on SPJ's local board.)

"It might be helpful for the commission to set a cut-off point" such as 4 p.m. daily, said PK's Feld. "Anything that’s done in order to reduce transparency at an agency isn’t a good thing," said Vice President Scott Wallsten of the Technology Policy Institute, an economist often skeptical of regulation who becomes TPI president next week. "It stays a force of habit because they like it that way.”

Skeptics and supporters of the FCC and Wheeler's policies said few complain anymore. "People have come to accept something that we know just shouldn’t be the case," said Wallsten. But ex-Democratic FCC Commissioner Michael Copps, now Common Cause Media and Democracy Reform Initiative special adviser, said he would rather see an FCC item at 6:30 p.m. than wait until morning.

Most other agencies follow a different publicity playbook. Of about a dozen federal commissions, most released no items after their business hours last quarter, four released fewer evening items than the FCC and only one released more. FERC (202 in Q2) and the Federal Election Commission (22 in Q2) are the only other federal commissions routinely engaging in the practice. The U.S. Commission on Civil Rights, Consumer Product Safety Commission, Federal Mine Safety and Health Review Commission, FTC, International Trade Commission and Nuclear Regulatory Commission were 100 percent on-time in Q2.

In Q2, the SEC released at least seven items after business hours ended at 5:30 p.m., and several documents between 5 and 5:30, our research found. The agency didn't confirm that, and we filed an appeal to our FOIA request to get complete data. At the FEC, "there are many cases where we put things out after business hours, because that’s when the commissioners make their decision," said a spokeswoman. The Equal Employment Opportunity Commission released five items after its hours end at 6 p.m. in Q2, a spokeswoman said, after we filed a FOIA request when details weren't initially forthcoming. A few agencies didn't respond to our requests, while some didn't respond until after a delay or provide full details until after a FOIA was filed. At the CPSC, for instance, a spokeswoman confirmed Tuesday, the day we filed a FOIA, that no late items were released in Q2.

'Early in the Day'

At some places that release documents late, they numbered far fewer than the FCC, were outside of those agencies' control and/or were because decisions weren't actually made until the evening, not because a document on something that was previously decided wasn't ready until then. “There is nothing that we publicly release after business hours directly," said Madeleine Pope, confidential assistant to Occupational Safety and Health Review Commission Chairwoman Cynthia Attwood. The two items released last quarter after OSHRC hours end came the same day at 6:13 p.m., because the Government Publishing Office, which runs OSHRC’s website, didn't put them online until later, she said.

Many agencies said they release documents up until a certain time, always before their office or "core" hours end, and then post online the following business day anything ready later. They said that is meant to attract maximum attention. NRC's "policy is to get releases out as early in the day as we can, with the goal of nothing after 4 p.m.," said then-Office of Public Affairs Director Eliot Brenner, who retired in July. "If we must do something after 5 p.m., we try to reach out to interested reporters if we can to ensure they see the release." At the EEOC, which tries to release all items "meant for public consumption before 2 p.m. Eastern," that "is a communications strategy," said its spokeswoman. "This is how communications offices generally operate.”

The hassle from nighttime issuances is major, said stakeholders. “It is a source of frustration," said broadcast and appellate lawyer Harry Cole, self-described blogmeister of the Fletcher Heald law firm's blog. "Why they can’t wait till the next day is not entirely clear." Nonetheless, he said, few clients complain. Same for investors, said analysts including Cowen & Co.'s Paul Gallant. "Most FCC decisions don't matter to Wall Street, so the release time is usually irrelevant," he said. "For decisions that do affect stocks, it's actually a lot better to release them sometime after the market's 4 p.m. close.”

"On its face, it looks like a hint of obscurantism, making it a little harder for things to be covered" when the FCC releases items late, said Sunlight's Wonderlich. To TPI's Wallsten, "this really strikes me as headline risk aversion by the FCC," he said. "It just makes anything controversial easier to deal with.”