Free Press pushes back but fails to address transparency issues

Mike Riggs Contributor
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Two days after The Daily Caller requested comment from Free Press for a story about the group’s violation of the Lobbying Disclosure Act, the pro-net neutrality nonprofit that has repeatedly criticized the FCC for its opaque dealings with the telecommunications industry finally decided to respond.

“An online publication that will go unnamed and unlinked has accused Free Press of hypocrisy, claiming that as we criticize the Federal Communications Commission for secret meetings, we hide evidence of our own advocacy activity in violation of the Lobbying Disclosure Act,” wrote Free Press Policy Counsel Chris Riley on SaveTheInternet.com.

Riley’s response came after TheDC published two stories detailing Free Press’s efforts at obscuring meetings with officials who could directly affect broadband policy. According to publicly available documents obtained by TheDC, several Free Press employees are engaged in direct lobbying of the FCC, Congress and the NTIA, but have not registered as lobbyists. This has allowed Free Press to drastically under-report the amount it spends on direct lobbying.

Riley’s post fails to refute a single one of the discrepancies brought to light by information obtained from Free Press’s IRS returns, its lobbying reports, e-mails obtained via FOIA or previous press reports which note Free Press’s involvement in the crafting of two separate House bills introduced by two different congressmen.

“The author’s assertion is that Free Press is somehow being secretive and hiding evidence of activity – and uses as proof of that secrecy our publicly filed ex parte notices at the Commission,” Riley writes. “The author collected publicly available documents filed by Free Press to document our FCC activity, and used that information to assert that we are not being public about our FCC activity. The argument is self-contradicting.”

Actually, the point of both stories was to highlight the dissonance between what Free Press says, and what Free Press does. The group lashes corporate interests for meeting in secret with bureaucrats, then meets both privately and in secret with bureaucrats. No contradiction there, at least, not on the part of TheDC.

According to the Lobbying Disclosure Act (LDA), direct lobbying is “any oral or written communication (including an electronic communication) to a covered executive branch official or a covered legislative branch official made on behalf of a client with regard to the formulation, modification, or adoption of a federal rule, regulation, Executive order, or any other program, policy, or position of the United States government.”

That’s the law. Not an interpretation, but the actual text of the law. Is Free Press representing an “evil” corporation? No. Does it still have clients? According to the LDA, “an organization employing its own lobbyists is considered its own client for reporting purposes.” So yes, Free Press still has a client. Not to mention that every cent the organization solicits comes from individuals and groups that have a vested interest in the passage of net neutrality.

While Riley offhandedly argued in his post that he could “make other observations” about the “difference between lobbyists whose job is to advance the parochial commercial goals of a business, and those few advocates employed by nonprofit organizations who try to do their best to put the public’s interest first,” the Lobbying Disclosure Act makes no such distinction between supposedly kind-hearted nonprofit outfits and corporations.

Riley goes on: “Free Press has one registered lobbyist … Why aren’t more Free Press staff registered lobbyists? The rule says that a registered lobbyist is someone who has more than one lobbying contact in any three month period, and spends 20 percent or more of the person’s time engaged in lobbying activities.”

While TheDC can’t extrapolate the amount of time Free Press staffers spend engaged in “lobbying activities,” according to the LDA, such activities include “lobbying contacts and any efforts in support of such contacts, including preparation or planning activities, research and other background work that is intended, at the time of its preparation, for use in contacts and coordination with the lobbying activities of others.”

Unless Free Press staffers are working 100-hour weeks, it’s difficult to take seriously the claim that at least a handful of its employees aren’t dedicating 20 percent of their work-weeks engaged in the LDA’s definition of lobbying activities. Specifically: Free Press staffers Ben Scott, Derek Turner and Coriell Wright, who visited the FCC more than 30 times in eight months. Discounting open meetings of the FCC, that’s more than one incident of contact per staffer in a three-month period.

Why does the number of meetings matter? The LDA defines “one lobbying contact” as “more than one communication to a covered official,” and gives this example:

Example 1: Lobbyist “A” telephones Covered Official “B” in the morning to discuss proposed legislation. In the afternoon she telephones Covered Official “C” to discuss the same legislation. Lobbyist “A” has made more than one lobbying contact.

Any Free Press staffer who met with a covered official (every member of the FCC is a covered official, according to the LDA) more than once in three months should be registered. And yet, Scott, Turner, and Wright are not registered.

What did Free Press blatantly fail to address in its response?

That while none of the three aforementioned staffers is a registered lobbyist, Ben Scott was registered until 2008, when he de-registered to work more closely with the Obama administration.

And that since de-registering, Scott has continued to lobby not only the FCC, but also Congress and the National Telecommunications and Information Administration. As TheDC noted in a previous article, in August 2009 Scott emailed Tom Power, a chief of staff at the NTIA, and asked for a meeting:

“I wanted to reconnect sometime soon. I hear you’re cooking up the next course in the Net Neutrality debate, and I wanted to offer my culinary advice. I’ve been in the Net Neutrality sausage making business for some years now, and I’m hopeful that I can be useful to you. I had a good meeting with Danny Weitzner a week or two ago – but I wanted to talk about the politics with you. Your intervention will carry enormous weight.”

According to public documents, Power and Scott met three times in the month of August alone. Again, that’s more than one incident of contact in a three-month period.

Free Press, in its response, also failed to address the fact that Rep. Eric Massa said in a June 2009 statement that Free Press helped write the Broadband Internet Fairness Act, and that when Massa announced the bill in a conference call with reporters, Scott was on hand to explain the bill’s provisions.

Lastly, Riley claims in his post that Free Press is not required to report ex parte filings under the LDA. Seeing as three Free Press staffers who are actively lobbying without having registered as lobbyists, there is some truth to that. Had Free Press staffers acted ethically, however, and registered as lobbyists, they would have been legally required to disclose their participation in the ex parte process.

Riley’s response notes two flaws in our reporting: “The author lists several visits to the FCC by one Free Press attorney – two in February 2009, one in March, one in May, and one in June – even though the attorney was not employed by Free Press until August of 2009. To take another example, one Free Press staffer is erroneously listed as having ‘visited’ the FCC for filing a comment in an open FCC proceeding – an activity that involves no visit at all.”

TheDC regrets the above errors.