Baker’s Staff Lobbied by Comcast, Rivals, NCTA, Others, During Her Recusal

The lobbying meetings were problematic on several levels, said critics who reviewed the ex parte filings. The eighth-floor visits show that following the letter of recusal rules, which Baker and her staff did, doesn’t eliminate a perceived conflict of interest because some of the meetings involved Comcast and its main trade association on matters affecting the company, said Communications Director Dave Levinthal of the Center for Responsive Politics and others. At the same time, since the visitors and apparently also the staffers didn’t know that Baker had recused herself from all votes, the meetings can be seen as a waste of time, said critics including Free Press Policy Counsel Corie Wright and Craig Holman, a lobbyist for Public Citizen.

Discussed with Baker’s staffers were AT&T’s agreement to buy T-Mobile for $39 billion, AllVid rules for all pay-TV companies to connect to consumer electronics, changing the Universal Service Fund to pay for Internet service and an FCC contractor’s testing of cable and phone companies’ broadband transmission speeds, commission records show. April 25, Comcast and Time Warner Cable sought to have the broadband speed tests being done by FCC vendor SamKnows presented to the public in a way that “accurately reflects the typical experience of test panelists,” a filing said. An executive of NCTA, of which Comcast is the largest member, also attended.

Three days after Comcast’s FCC meeting, News Corp. lobbied against AllVid rules. NCTA also has opposed the rules. That cable association participated in a May 3 meeting with CTIA, Verizon, Vonage and USTelecom to discuss “concerns” about a rulemaking proposing to require broadband and VoIP providers to make notification of service outages. A day later, NCTA executives asked that the FCC not impose more rules on TV captioning, in implementing the 21st Century Communications and Video Accessibility Act. Representatives of three groups for those who have trouble hearing in another meeting sought TV captioning standards.

Critics of last Wednesday’s announcement that Baker is leaving June 3 to become the top lobbyist for Comcast’s NBCUniversal, and who reviewed the filings at our request, said they show that FCC rules were followed. Levinthal and other critics said the meetings point up the problems of Washington’s revolving door, where politicians and regulators go to work in the private sector. In January, Baker voted to approve Comcast’s multibillion purchase of control in NBCUniversal, months before she said she was approached about the lobbying job and a transaction that some view as the most important in the company’s history. Baker’s office and the FCC had no comment. Baker has said she went beyond the rules required when commissioners consider a new job.

Recusal goes beyond not voting on items and includes not taking part in any “official action in any capacity” involving the prospective employer, Holman said: “If her staff were facilitating the interests of Comcast in these actions on behalf of Baker, which is quite possible given the lobbying meetings, then Baker was not in fact living up to her recusal obligation.” Baker has also said she didn’t participate in any proceedings, starting when she was approached by Comcast, and that she spoke extensively with FCC General Counsel Austin Schlick to avoid any conflicts. “But it is not at all evident why her staff were being lobbied when she has recused herself from further official actions,” Holman said. “Situations like this make it tempting to recommend a broader revolving door policy prohibiting any official from accepting employment with any business that they oversaw as an official -- but reflection shows that far-reaching prohibition is not practical."

The meetings show the practical difficulties of a member of a regulatory commission privately considering a job, because visitors expect help from her office on issues before the agency, said Wright. Free Press and others have asked members to write Congress to investigate Baker’s departure. Baker’s entire office shouldn’t have accepted any visits by those regulated by the FCC and groups seeking rules, because of the commissioner’s job discussions with Comcast, said Policy Director Meredith McGehee of the Campaign Legal Center.

Other FCC watchers say Baker has done nothing her predecessors didn’t do. “This is all overblown,” since “there are countless cases in the past” that are similar, said Professor Chris Sterling of The George Washington University, an aide to a commissioner in the 1980s who teaches about the FCC: “Though overall, the pattern is unfortunate.” FCC member Kenneth Cox left the agency in 1970 for a job at MCI, shortly after voting to approve the company’s service, Sterling noted. He said that in 1947, Chairman Charles Denny left for NBC, shortly after voting for something on behalf of the broadcast network. Baker is a Republican. Cox and Denny were Democrats.

None of the past 10 FCC members to leave went directly to the private sector, our review of job announcements from 1997 on showed. Some went to law and lobbying firms soon after leaving, including former Chairman Kevin Martin, to Patton Boggs where he now works, and former Commissioner Kathleen Abernathy to Akin Gump. She later went to work for another law firm and last year opened up the Washington office of Frontier Communications. Martin, Michael Powell, Reed Hundt and William Kennard went to work for the Aspen Institute immediately after they stepped down as FCC chairmen, said Charlie Firestone, executive director of the communications and society program.

"They could finish up their chairmanship without having to disqualify themselves by looking for a job,” Firestone said of the last four FCC chairmen. Of Baker, he said he believes it’s not a “unique situation,” either to the FCC or to Washington, calling her “terrific.” Powell last month reentered the communications law sector, becoming president of NCTA, replacing Kyle McSlarrow. McSlarrow became president of Comcast/NBCUniversal Washington, where he’s said to have recruited Baker for the lobbying job there (CD May 12 p1).

Visitors to Baker’s office ranged from CEO Ralph Clark of ShotSpotter, a closely held company asking its gunshot-detecting technology be included in an FCC framework for the next generation of 911, to five small telcos that discussed the USF and intercarrier compensation. Executives of General Communication, Alaska’s largest cable company and telco, sought USF funding for broadband deployments serving tribal lands, while AT&T and Verizon separately sought deregulation of some filing requirements for U.S. providers of international telecom services. In the last recorded ex parte meeting with Baker’s office on May 11 -- the day Baker said she would leave the FCC for Comcast, the Media and Democracy Coalition of two-dozen nonprofit groups that include Public Knowledge and the United Church of Christ sought to expand the USF to cover broadband and said the commission shouldn’t approve the AT&T/T-Mobile deal.

"Simple common sense” requires Baker and her aides not take “any part whatsoever” in the policymaking process once she began talking to Comcast about employment there, McGehee said. “It is exactly that kind of hairsplitting and consulting of attorneys, in order to legally do things that are obviously wrong, that further damages the public’s faith in its government,” she added. “More measures are needed for both the legislative and executive branches to eliminate this stark example of cashing in on public service.” The lobbying of Baker’s staff “illustrates that there are a lot of problems with the revolving door,” for both members of the public and companies regulated by the FCC, Wright said. “It certainly puts her staff in a very awkward position, that without breaking the news, her staff is expected to conduct some business.”