Baker May Still Face Conflicts, Even With Recusals, Some Say

Recusal from the several pending proceedings directly relating to Comcast may not be enough for Baker, said President Craig Aaron of Free Press, a critic of both the agency and the cable operator. WealthTV CEO Robert Herring said Baker’s departure worries him because the independent cable programmer has an order on its complaint against Comcast circulating on the eighth floor. The resignation further highlights what some call Washington’s revolving door between regulators and the companies they oversee, said Craig Holman, a lobbyist for Public Citizen. Free Press on Thursday asked its members to write their members of Congress to “stop the revolving door” and “demand Congress investigate Baker’s conflict of interest.”

"There are rules that govern situations like this,” Genachowski said at a news conference following Thursday’s FCC meeting, which Baker skipped. “I expect that Commissioner Baker has and will comply with all of those rules. She has been in touch with the general counsel and the chief ethics officer” of the commission, he added. On questions of the “revolving door,” Genachowski said “there are rules in place, there are strict rules. Compliance is very important and I think it'll continue to be."

Baker was contacted by Comcast about working there in the second half of April, FCC General Counsel Austin Schlick told reporters Thursday. He declined to disclose the exact date: “I'll let Commissioner Baker give the date if she likes.” After Baker “was contacted by Comcast, the commissioner in accordance with our recommended practice for senior officials” contacted the General Counsel’s office, Schlick said: “We worked closely with her."

Baker must recuse herself from any commission business involving Comcast from the time she began job discussions, Schlick said: She must also avoid the “appearance” of a conflict of interest. He declined to say if Baker recused herself from the items voted on Thursday, or if she is sitting out any other matters at the FCC. May 2, an order dismissing WealthTV’s program carriage complaint against Comcast circulated, as did an order and rulemaking on program carriage rules that would affect Comcast, agency officials have said.

As soon as Baker began considering the Comcast job, she contacted Schlick, and “was guided by that office throughout our discussions,” a spokeswoman for the company said Thursday evening. Baker will start at the cable operator in late June or early July, and an exact date hasn’t been set, the spokeswoman said. Discussions with Baker about her coming to Comcast started in the middle of April, around when Bob Okun said he was leaving NBCUniversal, the spokeswoman added. Okun’s departure from NBCUniversal, where he ran its Washington lobbying operations, was announced by that company on April 15.

"There are detailed and thorough restrictions on Ms. Baker following her government service,” the Comcast spokeswoman said. They include FCC ethics rules and a pledge Baker signed as an appointee of President Barack Obama that she can’t lobby the agency or any other in the executive branch until the president leaves office, the spokeswoman said. “She cannot ever lobby the FCC on any issue relating to the NBCUniversal transaction” in which Comcast acquired a controlling stake, the spokeswoman said. “As the positive statements by current and former FCC commissioners, former members of Congress, and others make clear, this is simply a case of a dedicated and talented public servant moving on to the next stage of her career."

Other examples of pending proceedings at the FCC affecting Comcast in a significant enough way that Baker should sit them out completely are on AllVid rules for all pay-TV companies to connect to consumer electronics equipment and media ownership rules, said Aaron and Corie Wright, a policy counsel at Free Press. “We're looking into any potential conflicts of interest,” Wright said. “It seems like Commissioner Baker has some explaining to do” and “we hope she'll be in attendance at tomorrow’s House subcommittee hearing to answer some of these questions,” she added. Baker won’t be testifying. (See separate report in this issue.)

"I certainly don’t think it would be unreasonable to effectively sit everything out,” Aaron said of Baker. “The larger problem” is “this isn’t even really an option for a commissioner” who continues to work at the FCC, he added. “She got sound legal guidance, so that’s certainly one good technical step,” he said of Schlick’s statements that he and Baker spoke. Warren Communications News, publisher of Communications Daily, filed a Freedom of Information Act request with the FCC on Thursday to be given a list of all proceedings Baker was recused from and the date when she first told commission officials she was considering employment elsewhere.

Herring filed his own FOIA request, too, he said. “Did Commissioner Baker or her staff participate in discussions of WealthTV’s complaints, including but not limited to File No. CSR-7907-P, after she initially engaged in job solicitation discussions with Comcast?” was among the questions he submitted Thursday to the regulator. “Has Commissioner Baker or her staff been given access to the circulated item(s) post Commissioner Baker’s initial job solicitation with Comcast?”

Herring worries that even though Baker may have recused herself from WealthTV’s program carriage complaint against Comcast, her staff may have sat in on internal meetings at the commission where the case was discussed, he said in an interview. “I would recommend anybody stay away from the FCC if they're thinking of filing a complaint and they're not a cable company.” The programmer’s complaint alleges Comcast favored its own channels over Wealth. An FCC administrative law judge has recommended the full FCC dismiss that complaint, and the issue is now before the commissioners. The FCC’s “revolving door” has long been a concern for Herring, he said.

"While Meredith Baker’s choice to make use of her public experience to enrich herself in the private sector is problematic at the very least, the ethical constraints imposed upon her show exactly how valuable are President Obama’s revolving door restrictions,” Holman said. “The constraints are far more than just avoiding contact with her former staff for two years. She is also obligated not to lobby anyone in the administration for the entire term of the Obama presidency.” Under Obama’s executive order, Baker will also be banned from lobbying senior members of the commission for at least two years, Schlick told reporters.

Under Section 2641.201 of the U.S. Criminal Code, Baker is banned permanently from representing Comcast on any “particular matter in which [she] participated personally and substantially.” Other parts of the code call for two-year restrictions on lobbying on matters “for which the employee had official responsibility,” a one-year restriction “on any former senior employee’s representations to former agency concerning any matter, regardless of prior involvement,” and a two-year restriction “on any former very senior employee’s representations to former agency or certain officials concerning any matter, regardless of prior involvement.”