Waiver Lets Gomez Vote on Enforcement Actions Against Clients of Former Firm

Quietly issued by FCC General Counsel P. Michele Ellison on Feb. 21, the waiver doesn’t apply to clients Gomez personally represented and involves only enforcement proceedings and hearing designation orders. The waiver isn’t unusual, though it illustrates that communications law is an “incestuous area” and government agencies shouldn’t be staffed with conflicted appointees, said Jeff Hauser, executive director of The Revolving Door Project. Hauser added, the waiver is “a reasonable interpretation of the rules” but shows that those rules are “weak” and should be changed. Wiley and the FCC’s Office of General Counsel declined to comment.

Without the waiver, Gomez would have to recuse herself from enforcement proceedings involving a Wiley client, which could gum up the agency’s schedule, the waiver said. “In order to conclude investigations on a timely basis and within the limited period imposed by the statute of limitations,” the FCC “needs a full complement of Commissioners to be able to act in all of the necessary stages of an enforcement proceeding.” Without the waiver, the target of an enforcement action could potentially block FCC action by hiring Wiley, an official in Gomez’s office told us. Ellison, who is also the FCC’s designated ethics official, issued the waiver after consulting with the Counsel to the President, the waiver letter said.

The ethics pledge is required under an executive order that President Joe Biden issued in 2021. In part, it bars appointees from participating in agency business involving former clients for two years after their appointment. Gomez was appointed in Sept. 2023. She is the only FCC commissioner who has received such a waiver but all the other commissioners have also served more than two years. The Office of Government Ethics lists around 45 such waivers across federal agencies. They are not atypical for appointees who formerly worked at widely used law or consulting firms with many clients, Hauser said.

“It was determined that such a waiver was appropriate because enforcement of the pledge would be contrary to the purpose of the pledge, which is to maintain public trust in government,” a Gomez spokesperson said. “Throughout her career, Commissioner Gomez has embodied the highest level of professional and personal integrity,” the spokesperson added. The waiver is listed on the FCC’s website under the Office of General Counsel’s “Ethics” tab and on the Office of Government Ethics website, but neither Gomez’s office nor the FCC announced the waiver when it was issued. Such waivers getting buried on government websites is also common, Hauser said. The OGE should be required to publish all recusals and ethics waivers and send them to subscribers as updates, he said.

Outside of enforcement proceedings, the White House ethics pledge still bars Gomez from participating in "particular matters involving specific parties" when they include a Wiley client. General rulemakings that would affect Wiley clients aren't particular matters, but FCC proceedings that target specific companies -- such as mergers or foreign ownership rulings -- likely are.

It's unclear why the waiver was issued last month instead of when Gomez took office. The timing might be prompted by the agency contemplating an enforcement action against a specific Wiley client that could require Gomez’s vote; however, it could just be a proactive measure aimed at preventing future complications, said Smithwick and Belendiuk attorney Arthur Belendiuk, who has experience with the HDO process. It would be bad for Wiley's clients to be tied up in enforcement proceedings that the FCC was unable to finalize, a knowledgeable attorney told us. Project on Government Oversight General Counsel Scott Amey said issuing the waiver to ensure the agency has a majority of one for a specific enforcement action would seem to run counter to the spirit of the ethics pledge. Though he conceded that any negative effects of the waiver are tempered by Gomez being just one member of a five-person body. Still, appointing agency officials without conflicts is a much preferable solution to the problem of conflicts than waivers are, Amey said.

The public interest “is best served when the Commission is able to explore and exercise the full range of its options with respect to enforcement proceedings or matters relating to HDOs in which a former client is a party or in which your former employer is representing a party,” said the waiver letter.