Anger and confusion remains high over these private "back door" meetings that the Federal Communications Commission has been holding with various "stakeholders" regarding its proposed open Internet rules. Reform groups are still up in arms over the Tuesday gatherings, which appear to have focused on a legislative solution to the problem. Congress, it should be noted, is exploring rewriting the Communications Act in response to the current FCC logjam on the issue.

The Washington Post reports that these conferences haven't made much progress; nonetheless, the reform group Free Press has published an ad in that newspaper protesting the sessions.

"FCC Chairman Julius Genachowski's top deputies are meeting behind closed doors with industry lobbyists to cut a deal that would effectively hand over control of the Internet to Verizon, Comcast and AT&T," the statement warns.

"President Obama, you promised to take a 'back seat to no one' in protecting Net Neutrality and free speech online. Don't let our Internet go the way of Wall Street and the Gulf of Mexico."

We discussed details

We wish folks would keep the catastrophe in the Gulf out of this. In any event, FCC Chief of Staff Edward Lazarus, who we are told summoned various key players to these conferences, has published a list of the attendants.

They included Verizon Vice President Thomas J. Tauke, AT&T Vice President James W. Cicconi, President of the National Cable & Telecommunications Association Kyle E. McSlarrow, Google's Alan Davidson, and Skype's Christopher Libertelli. All are key corporate lobbyists. These gents met with Lazarus and two other FCC policy people: Paul de Sa and Zachary Katz.

The disclosure of these participants comes via a "Notice of Stakeholder Meetings" letter sent to the agency by Markham Erickson, head of the pro-net neutrality Open Internet Coalition (we're presuming he also attended). "We discussed details relating to prospective legislation relating to open Internet principles," Erickson's letter concludes.

In a blog post published later on Tuesday, Lazarus noted the gathering.

"Some stakeholders have shared their ideas with staff at the Commission, including ideas for legislative options," he wrote. "To the extent stakeholders discuss proposals with Commission staff regarding other approaches outside of the open proceedings at the Commission, the agency's ex parte disclosure requirements are not applicable."

"But to promote transparency and keep the public informed," Lazarus added, "we will post notices of these meetings here at blog.broadband.gov."

One party

So, you ask, what are the FCC's "ex parte disclosure" requirements? And what the heck does ex parte mean, anyway?

Here you go:

Ex parte is Latin for "by" or "from" "one party" or "one side." It usually refers to a single party in a legal case appearing before a judge or administrator. Such meetings ought to be publicly disclosed, most fair minded legal and government folk agree, so that the other interested entities know that they took place.

The Administrative Procedures Act applies the principle to the federal government, defining an ex parte as "an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given."

The FCC's own rules expand on this, defining the concept as such:

[a]ny presentation which: (1) If written, is not served on the parties to the proceeding; or (2) If oral, is made without advance notice to the parties and without opportunity for them to be present, with 'presentation' defined as '[a] communication directed to the merits or outcome of a proceeding, including any attachments to a written communication or documents shown in connection with an oral presentation directed to the merits or outcome of a proceeding.'

The FCC says that written ex parte expressions usually include "data, memoranda making legal arguments, materials shown to or given to Commission staff during ex parte meetings, and e-mail communications to Commission staff directed to the merits or outcome of a proceeding."

Their oral equivalents include "meetings or telephone or relay calls with Commission staff where parties present information or arguments directed to the outcome of a proceeding."

The essence of transparency

And so the Commission may be technically correct when it says that the gathering mentioned, focusing on legislative solutions to the net neutrality question, was not an ex parte presentation, since it was not "directed to the merits or outcome of a proceeding."

But this is very narrow interpretation. We think that unless Lazarus can assure the public that under no circumstances did or will these meetings discuss issues related to the two proceedings that the FCC is now running on its proposed open Internet rules, the substance of these conferences ought to be summarized and publicly filed in those dockets.

The disclosure of these talks should not be interpreted or presented simply as a unneeded courtesy to the public.

Ironically, the Commission is currently running a rulemaking cycle on how to make its ex parte system more transparent. The agency is proposing that every oral ex parte presentation must be summarized. The government's current rules say this only has to happen the first time an interested party offers the FCC information or arguments.

"It is essential that industry and public stakeholders know the facts and arguments presented to us in order to express informed views," FCC Chair Julius Genachowski proclaimed when these new rules were proposed back in February.

"When all written ex parte materials and summaries of all oral ex parte communications are substantive, complete, filed quickly in the record, and immediately available online, special interests are revealed and no party has unfair access to inside information. This is the essence of transparency, and I look forward to implementing the rule changes that will help bring it about."

Goodness—what fine words. We can't wait for these reforms to be enacted.