Divine intervention may not have been discussed at Thursday's Federal Communications Commission meeting, but in approving a one-page order 4-1 the agency made it clear that it is tired of leaks and wants those responsible to fear the consequences.
The FCC's general counsel, Christopher Wright, has been working on a way to stop the leaks ever since some sensitive information on the now-terminated WorldCom-Sprint merger was, as he put it, "unintentionally leaked" to several industry lobbyists. The problem has ballooned during the AOL-Time Warner review. At one point this summer there were almost daily leaks of sensitive internal documents on that merger and other issues, such as the agency's inquiry into open cable access.
"We've been stung by an unfortunate circumstance of leaks," FCC Chairman William Kennard said at Thursday's meeting. "The inspector general has been kept very busy lately investigating."
The order demands that any attorney practicing before the FCC who comes into possession of "nonpublic" agency documents must return them to the inspector general and not distribute them--or face sanctions such as being forbidden from appearing before the agency.
However, Wright and most of the commissioners acknowledged that outside parties aren't the problem.
The order "is going to be extremely ineffective," said commissioner Harold Furchtgott-Roth. "What needs to change is the culture here at the commission." He was the only commissioner to vote against the order.
Commissioner Michael Powell agreed that "the biggest part of the problem is inside the agency." Saying that in all his years of government service he had never seen so many leaks, Powell agreed to head a task force seeking solutions. "I've done a slow burn over (my) last three years" at the FCC because of the leaks, he said.
Several commissioners made it clear that the reporters who wrote about the confidential information were simply doing their jobs and suggested they weren't seeking to violate anyone's First Amendment rights. Powell said, however, that journalists reporting leaked information are "putting their moles at great risk."
Commissioner Gloria Tristani said many companies seeking action at the commission are reluctant to surrender confidential information. "They say, 'We don't want to give them to you, they might get out.' I understand that thinking now."
Walt Disney recently was chastised by the FCC for mishandling sensitive information related to the AOL-Time Warner merger. An outside attorney for the company at the law firm Verner Liipfert Bernhard McPherson & Hand sent to some Disney staff sensitive merger materials from AOL without receiving agency permission. On Tuesday, the FCC said Disney would not be permitted to receive any more nonpublic documents until it had better explained itself.
Disney didn't report the transgression by its law firm for five days. The new order would require individuals and companies to report the transfer of any nonpublic document immediately.
FCC staff said that while the Disney incident is an example of what the commission is targeting, the order itself had been in the works long before this occurrence. The internal investigations at the FCC have been going on for several weeks, and some employees have said that it's led to a darkened mood in the agency's large glass building just up from the Potomac River.
Lately what has been leaking are FCC staff draft reports on actions such as the AOL-Time Warner merger. Kennard noted that often the reports don't reflect the thinking of the commission and even could be "malicious" leaks to advocate a minority point of view.
"It only takes one bad apple to wreak havoc on our agency's proceedings," Kennard said.
Commissioner Susan Ness noted that leaking "market-sensitive nonpublic information" could not only interfere with the FCC's internal processes but could inappropriately affect markets as well.
Kennard said internal leaks "will not be tolerated," and Powell vowed to see that any employee caught leaking information would be terminated.
There is general anger and frustration among FCC staff at the individual or individuals who are leaking information, but there's also an unease brought on by the feeling that everyone's actions are being watched. "We're being treated as guilty until proven innocent," one staff member said.