FCC – Trafficking in Inadmissible Chicanery

by Mike Wendy on November 30, 2011

The FCC released a provocative draft report, outlining staff concerns why the AT&T / T-Mobile merger is not in the “public interest.”  They did this after (or in retaliation for) AT&T withdrawing its merger application at the FCC to focus instead on its merger review case with the DoJ.

The draft report – which has no legal bearing – essentially “tries” the merger in the newspapers.  It is the rough equivalent of inadmissible hearsay.

Under the guise of giving the public “important” deliberative information – something that would likely not even be disclosed through FOIA – the FCC has released “truths” that, like a bell, cannot be un-rung.  A classic lawyer’s trick if ever there was one – make otherwise inadmissible statements before the jury, knowing full-well that even if the judge instructed the jury to ignore them, they won’t be forgotten.

As former FCC Chairman and AT&T lawyer, Dick Wiley, noted today:

“In this case, the workproduct is highly deliberative in nature as it is a draft for consideration by the Commissioners … This workproduct would in no way constitute official findings of the Commission.”

Yet that’s lost on the public.  A draft that wasn’t even voted on by the Commissioners is “truth” now.  Not subject to cross-examination or questioning – which is what it was prepared for.  The findings are “fact.”


Wiley sees a greater harm here.  The release of the draft will have “far-reaching effects on the future functioning of the FCC.”

Yes it will.

For an agency that has a hard time according itself to the will of Congress when it’s inconvenient (as in Net Neutrality; as in LightSquared), the agency, aided by its public interest sycophants Public Knowledge, Free Press and Media Access Project (all of which urged the FCC to disgorge its otherwise un-FOIA-able document / deliberations), should expect others to take their gloves off.  This tactic will not always work to their favor.

The FCC has gone a bridge too far.  So have their “public interest” cheerleaders.

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