Government & Communications

Attempts by governmental bodies to improve or impede communications with or between the citizenry.

The clock may have just run out on the White House press corps

[Commentary] When I was White House communications director for President Barack Obama I would warn the White House press corps that they were living on borrowed time. In a digital age, with the proliferation of communication platforms, the media was eventually going to need a better answer for why 50 or so reporters deserved daily access to the White House — access not available to other outlets and the general public. Now, the clock has run out. The ultimate disrupter, in the form of President Donald Trump, is seeking to change nearly every rule that presidents and the reporters who cover them have lived by. To lose this give and take — either by refusing to turn on the cameras or by putting a showman at the podium — would be a significant blow to an accountable democracy.

[Jennifer Palmieri served as White House communications director from 2013 to 2015 and was communications director for Hillary Clinton’s 2016 presidential campaign]

Sen Wyden blasts FCC for refusing to provide DDoS analysis

Sen Ron Wyden (D-OR) criticized the Federal Communications Commission for failing to turn over its internal analysis of the DDoS attacks that hit the FCC's public comment system.

The FCC declined to provide its analysis of the attacks to Gizmodo, which had filed a Freedom of Information Act (FoIA) request for a copy of all records related to the FCC analysis "that concluded a DDoS attack had taken place." The FCC declined the request, saying that its initial analysis on the day of the attack "did not result in written documentation." “If the FCC did suffer a DDoS attack and yet created no written materials about it, that would be deeply irresponsible and cast doubt on how the FCC could possibly prevent future attacks," said Sen Wyden. "On the other hand, if FCC is playing word games to avoid responding to FoIA requests, it would clearly violate Chairman Ajit Pai’s pledge to increase transparency at the FCC.” Sen Wyden also said that the FCC's response to the FoIA request raised "legitimate questions about whether the agency is being truthful when it claims a DDoS attack knocked its commenting system offline.”

FCC Chairman Pai’s response: “The FCC has provided a written response to Congress detailing the attack, and we have never said that we have no written materials about it. Rather, the documents that were not produced in response to the FOIA request cannot be provided, among other reasons, because of security and privacy concerns.”

Sean Spicer Resigns as White House Press Secretary, Denouncing Chaos in West Wing

Sean Spicer, the White House press secretary, resigned after denouncing chaos in the West Wing and telling President Donald Trump he vehemently disagreed with the appointment of the New York financier Anthony Scaramucci as communications director.

After offering Scaramucci the communications job, President Trump asked Spicer to stay on as press secretary. But Spicer told President Trump that he believed the appointment of Scaramucci was a major mistake and said he was resigning, according to a person with direct knowledge of the exchange. In one of his first official acts, Mr. Scaracmucci, who founded the global investment firm SkyBridge Capital and is a Fox News contributor, joined Sarah Huckabee Sanders, Spicer’s chief deputy, in the White House briefing room and announced that she would succeed Spicer as press secretary. The resignation is a serious blow to the embattled White House chief of staff, Reince Priebus, the former Republican Party chairman who brought Spicer into the West Wing despite skepticism from President Trump, who initially questioned his loyalty. Scaramucci described his relationship with Priebus as brotherly where they “rough each other up.” He called Priebus a “good friend.” Senior officials, including Sarah Huckabee Sanders, Spicer’s top deputy, were said to be stunned by the sudden shuffle.

Excerpts From The Times’s Interview With Trump

President Donald Trump spoke on July 19 with three New York Times reporters — Peter Baker, Michael S. Schmidt and Maggie Haberman — in an exclusive interview in the Oval Office.

BAKER: I do want to come out, on the email, now that you have seen that email that said Russia’s government — I mean, how did you — did you interpret it that way?
PRESIDENT TRUMP: Well, I thought originally it might have had to do something with the payment by Russia of the DNC. Somewhere I heard that. Like, it was an illegal act done by the DNC, or the Democrats. That’s what I had heard. Now, I don’t know where I heard it, but I had heard that it had to do something with illegal acts with respect to the DNC. Now, you know, when you look at the kind of stuff that came out, that was, that was some pretty horrific things came out of that. But that’s what I had heard. But I don’t know what it means. All I know is this: When somebody calls up and they say, “We have infor—” Look what they did to me with Russia, and it was totally phony stuff.

[Later On.]
BAKER: This is why I want to come back to that email, because, like — does it concern you? Let’s say that the election didn’t change because of anything Russia did, which has been your point, right? You point —
TRUMP: By the way, it’s everybody.
BAKER: Right, your point is that Democrats are trying to use this as an excuse, fine. But did that email concern you, that the Russian government was trying something to compromise——
TRUMP: You know, Peter, I didn’t look into it very closely, to be honest with you.
BAKER: O.K.
TRUMP: I just heard there was an email requesting a meeting or something — yeah, requesting a meeting. That they have information on Hillary Clinton, and I said — I mean, this was standard political stuff.

President Trump Forms Infrastructure Advisory Council

President Donald Trump has signaled that broadband will definitely be part of his planned infrastructure investments. The president issued an executive order July 19 creating the Presidential Advisory Council on Infrastructure that will include a representative from the communications and technology sector. The council will report back to the president with its findings. The members will be appointed by the president and will represent the following sectors: real estate, finance, construction, communications and technology, transportation and logistics, labor, environmental policy, regional and local economic development, and "other sectors determined by the President to be of value to the Council."

The mission of the council, whose membership will be capped at 15, is to "study the scope and effectiveness of, and make findings and recommendations to the President regarding, Federal Government funding, support, and delivery of infrastructure projects in several sectors, including surface transportation, aviation, ports and waterways, water resources, renewable energy generation, electricity transmission, broadband, pipelines, and other such sectors as determined by the Council." That will include prioritizing infrastructure buildouts, speeding approval processes, coming up with ongoing financing mechanisms, identifying public-private partnerships, coming up with best practices for procurement and delivery and promoting innovation. The Department of Commerce will provide the administrative staff, facilities and support services for the council. The council positions will be unpaid, though private citizens will get travel expenses.

FCC has no documentation of DDoS attack that hit net neutrality comments

The US Federal Communications Commission says it has no written analysis of DDoS attacks that hit the commission's net neutrality comment system in May. In its response to a Freedom of Information Act (FoIA) request filed by Gizmodo, the FCC said its analysis of DDoS attacks "stemmed from real time observation and feedback by Commission IT staff and did not result in written documentation." Gizmodo had asked for a copy of any records related to the FCC analysis that concluded DDoS attacks had taken place.

Because there was no "written documentation," the FCC provided no documents in response to this portion of the Gizmodo FoIA request. The FCC also declined to release 209 pages of records, citing several exemptions to the FoIA law. For example, publication of documents related to "staffing decisions made by Commission supervisors, draft talking points, staff summaries of congressional letters, and policy suggestions from staff" could "harm the Commission’s deliberative processes," the FCC said. "Release of this information would chill deliberations within the Commission and impede the candid exchange of ideas."

At Our Own Peril: DoD Risk Assessment in a Post-Primacy World

The US Department of Defense (DoD) faces persistent fundamental change in its strategic and operating environments. This report suggests this reality is the product of the United States entering or being in the midst of a new, more competitive, post-US primacy environment. Post-primacy conditions promise far-reaching impacts on US national security and defense strategy. Consequently, there is an urgent requirement for DoD to examine and adapt how it develops strategy and describes, identifies, assesses, and communicates corporate-level risk. From a defense strategy and planning perspective, post-primacy has five basic defining characteristics including: Hyperconnectivity and the weaponization of information, disinformation, and disaffection.

Bill Reining In Chevron Deference Introduced

In what is being billed as a bicameral effort, a group of Republican Sens and Reps—including Senate Judiciary Committee Chairman Chuck Grassley (R-IA), have introduced a bill, the Separation of Powers Restoration Act, that takes aim at the Chevron deference accorded federal agency expertise. “For too long, unelected bureaucrats have relied on Chevron to expand their own authority beyond what Congress ever intended. This has weakened our system of checks and balances and created a recipe for regulatory overreach," said Chairman Grassley of the bill. "The Constitution’s separation of powers makes clear that it is the responsibility of Congress, as the People’s representative, to make the law. And it’s the job of the courts—not the bureaucracy—to interpret the law. This bill helps to reassert those clear lines between the branches. By doing so, it makes the government more accountable to the People and takes a strong step toward reining in the regulators.”

The bill would only tweak the language in the US code on judicial review of agency actions, but it makes a big difference. The issue of Chevron has often come up regarding how the Federal Communications Commission exercises its regulatory authority. Chevron is the deference that has been accorded agencies—per Supreme Court precedent—to interpret vague statutes.

A reporter broke White House rules by streaming live audio of an off-camera briefing

At every White House news briefing since June 29 — and many before, too — President Donald Trump's spokesmen have ordered a room full of smartphone-toting journalists not to film the session or even broadcast live audio. On July 19, one reporter defied the White House by streaming live sound of the briefing online. Ksenija Pavlovic, a former political science teaching fellow at Yale who founded a news site called Pavlovic Today, used the Periscope app to stream audio of July 19's briefing. She tweeted a link to the feed. The sound quality was poor, but deputy White House press secretary Sarah Huckabee Sanders could be heard introducing Director of Legislative Affairs Marc Short, who addressed reporters before Sanders took questions. Pavlovic's feed cut out after about 17 minutes, while Short was still talking, but she quickly resumed streaming and tweeted a new link that carried another 31 minutes.

Independence, Net Neutrality, and E-rate are Thorny Issues at FCC Confirmation Hearing

On July 19, 2017, the Senate Commerce Committee held a hearing to examine the nominations of Ajit Pai, Jessica Rosenworcel, and Brendan Carr for seats on the Federal Communications Commission.

On March 7, President Donald Trump nominated Pai, the FCC’s current chairman, for a second five-year term ending June 30, 2021. Rosenworcel is nominated for a term that would end June 30, 2020. Carr, the current general counsel at the FCC, has actually been nominated for two terms, one expiring June 30, 2018 and the second ending June 30, 2023. Carr served as legal adviser to then-FCC Commissioner Pai for three years before Pai was named chairman and appointed Carr as general counsel.

Committee Chairman John Thune (R-SD) characterized the hearing as both an examination of the nominees and a FCC oversight hearing, “fulfilling a commitment I’ve made to hold regular, biannual oversight hearings of the Commission.” His opinions of the nominees: “In my view, the FCC will be in very good hands when all three of these nominees are confirmed.” He noted Chairman Pai’s efforts around transparency and FCC processes, network neutrality, and robocall prevention.

Sen Bill Nelson (D-FL), the committee’s ranking member, raised issues around all three nominations. Concerning Rosenworcel, he noted that she should not have been forced to step down from the FCC at the end of 2016 when the Senate failed to reconfirm her.

Sen. Nelson identified two concerns about Brendon Carr: 1) “two consecutive terms to which the Senate is being asked to confirm you would provide you with the longest single, initial period of service of any nominee to the FCC” and 2) “it is hard to recall a similar situation where someone was nominated to serve at the commission alongside, rather than to follow, their current boss.” He stressed that it is important to have commissioners who have independent voices and “ones who will fight for consumers and the public interest.” He later asked Carr to cite an issue that he and Chairman Pai disagree on – Carr failed to answer on more than one occasion. “Going forward, I’ll make my own decisions; I’ll call it the way I see it,” Carr said. “I think my record shows that I’m not a shrinking violet.” Sen. Nelson called that response “not confidence-building.”

Finally, Sen. Nelson congratulated Chairman Pai on some recent pro-consumer actions, but said, “[M]any view these most recent consumer protection actions as mere icing on what is otherwise an unpalatable cake. A cake constructed out of actions that eliminate competitive protections, that threaten dangerous industry consolidation, that make the Internet less free and less open, and that weaken critical consumer protections for those most vulnerable.”

Net Neutrality

Network neutrality and the FCC’s 2015 decision to classify broadband internet access service providers as telecommunications providers under Title II of the Communications Act were key issues for the hearing. In his opening remarks, Chairman Thune said,

“I am pleased that Chairman Pai has sought to hit the reset button on the 2015 Title II Order, because, as I have previously said, the FCC should do what is necessary to rebalance the agency’s regulatory posture under current law. I continue to believe, however, that the best way to provide long-term protections for the Internet is for Congress to pass bipartisan legislation. Two and a half years ago I put forward legislative principles and a draft bill to begin the conversation, and I stand ready and willing today to work toward finding a lasting legislative solution that will resolve the dispute over net neutrality once and for all.”

Two senators questioned the nominees about the impact of the Title II decision on broadband investment in the US. Sen. Mike Lee (R-UT) cited stats, offered by broadband providers, that investment has gone down. He took issue with a New York Times story that said investment had gone up since the 2015 order. He said that increase included foreign investment, some of which he said was spurred by the Title II disincentive to invest in the US, and that there was evidence that US infrastructure investment had declined precipitously.

On the other side was Sen. Ed Markey (D-MA) who said that almost half of the venture capital funds, or about $25 billion, invested since 2015 was in Internet-related businesses, with broadband providers investing $87 billion, the highest rate in a decade. Sen Markey said investment and job creation are high, so there is no problem that rolling back Title II or reviewing net neutrality rules would fix.

Both senators asked Chairman Pai for his take on their respective views, but the chairman's answer was cautious given that he has an open proceeding before him and comments on his proposal to roll back Title II and review the rules are still coming in. He said that evidence of decreased investment was one of his concerns, but that the FCC was testing that theory, as well as the opposite, as part of its due diligence.

E-Rate

While Rosenworcel, Carr and Chairman Pai all generally agreed on the importance of the FCC's E-rate program -- which makes broadband services more affordable for schools and libraries -- they initially refrained from an outright promise not to cut its funding. Sen. Ed Markey (D-Mass.) had to ask Rosenworcel a second time before she explicitly said she would not reduce the funding for E-rate. Neither Pai nor Carr would make that commitment.

Broadband Deployment

The three nominees were largely unanimous on measures to expedite rural broadband like “dig once” policies, which require installation of conduits for fiber-optic cable when preparing infrastructure such as roads. The policies aim to reduce cost and limit wait times for installing fiber in different municipalities.

“I think it would be helpful for ‘dig once’ policies and similar policies to be the law of the land,” Chairman Pai told Sen. Amy Klobuchar (D-MN).

“The agency, working with local jurisdictions, should try to come up with a model code — one that includes policies like ‘dig once,’” Rosenworcel said. She added that there should be incentives built in for local communities to adopt the model.

Senators also pressed the three on the need for accurate coverage maps so that subsidies issued to companies to build out their infrastructure are actually targeted to the right places.

“I would hope to get your commitment that the commission will work to ensure that mapping data used at the FCC accurately accounts for on-the-ground mobile coverage,” said Sen. Cory Gardner (R-CO). The nominees affirmed they are committed to working toward ensuring accurate data coverage moving forward.

First Amendment

Sen. Tom Udall (D-NM) pressed all of the nominees on their commitment to the First Amendment in light of the many statements President Trump has made disparaging outlets covering his Administration. Sen. Udall pointed to a story that the White House could use AT&T’s proposed acquisition of Time Warner as a way to punish CNN for its stories and suggested the Administration might want to reward Sinclair by approving Sinclair’s purchase of Tribune television stations. Each of the nominees pledged to speak out against violence or intimidation against journalists. Chairman Pai reiterated that the White House had not contacted him about retaliating against negative news stories and said he would not do so if asked. And he promised that the FCC would not be used to punish media companies or reward others and would be troubled by any attempt to pressure it to do so.

"I have not directly had any conversations with anyone in the administration with respect to media regulatory proceedings," Chairman Pai said. "To the best of my knowledge, no one on my staff or in the FCC has indirectly had any such conversations as well."

“I have consistently stated that I believe … that First Amendment freedoms, including the freedom of the press, are critical,” Pai added. “If I were ever asked by anyone in the administration to take retaliatory action, for instance, in a media regulatory proceeding, I would not do so.”

Conclusion

If all of the hearing’s nominees are confirmed by the full Senate, the FCC would have a 3-2 Republican majority. Senators on the committee have until July 21 to submit additional questions for the nominees who will be given time to reply in writing.