In April, the Federal Communications Commission (FCC) announced that the agency would approve the merger of Time Warner Cable and Charter, paving the way for the creation of the second largest cable and internet provider in the country. The company’s products are now marketed under the brand Spectrum. Today the FCC denied Gizmodo’s request for documents about the merger and gave us the FOIA equivalent of a middle finger.
On April 25, 2016, I filed a Freedom of Information Act request with the FCC for internal talking points about the merger of Time Warner and Charter. The goal was to gain some insight into the thinking that has allowed the consolidation of internet service providers in the United States. Charter Spectrum is now second to only Comcast in size, serving roughly 20 million people—myself included.
Specifically, I requested all internal “talking points” and “Q&A” documents related to the merger which were sent to or received by the FCC’s Office of Media Relations Press Secretary Kim Hart. As FCC Chairman Tom Wheeler’s Press Secretary, her deliberations and instructions would be vital to understanding how a merger like this could come to take place.
Perhaps most interesting of all, Ms. Hart’s internally distributed talking points would be vital to understanding how this merger would ultimately be sold to the American public with minimal blowback. That public, after all, isn’t too happy with their rather limited options when it comes to high-speed internet providers. Government approval of mega-mergers, even for companies that have very little overlap geographically, don’t look good to an American populace that already thinks the system’s rigged.
The FCC found nine documents that were responsive to my request. In a letter I received early this morning they spelled out what each document contained in the broadest strokes:
Five of the documents are emails between Commission staff discussing a draft planning memo (identified as confidential and attached to two of the documents) and a draft questions and answers memo (attached to the same two documents) regarding the merger. The sixth document contains emails between Commission staff discussing an attached question and answer “press prep” memo. The seventh document is an email between Commission staff discussing the merger. The eighth document is an email from Commission staff to Chairman Tom Wheeler discussing two attached letters from members of Congress to the Chairman. One of those letters is publicly available and we include it here for your convenience. The ninth document contains emails between Commission staff discussing an attached “core points” memo and seven associated supplemental memos.
The FCC explained that they were withholding all of the documents in their entirety:
We are withholding the nine documents because we have determined that they are exempt under FOIA Exemption 5, which applies to “inter-agency and intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency[.]” Exemption 5 encompasses the deliberative process privilege, which is intended to “prevent injury to the quality of agency decisions.” To fall within the scope of the deliberative process privilege encompassed by Exemption 5, records must be both pre-decisional and deliberative, “[reflecting] the give-and-take of the consultative process.” Disclosure of this material would chill the deliberative process and inhibit the frank and open discussions between government employees that are necessary for agency decision-making.
The letter also explained that they wouldn’t be releasing anything even with redactions, which is more typical when it comes to things that the government would rather not release:
The FOIA requires that “any reasonably segregable portion of a record” must be released after appropriate application of the Act’s exemptions. The statutory standard requires the release of any portion of a record that is nonexempt and that is “reasonably segregable” from the exempt portion. However, when nonexempt information is “inextricably intertwined” with exempt information, reasonable segregation is not possible. However, when nonexempt information is “inextricably intertwined” with exempt information, reasonable segregation is not possible. We have reviewed the records withheld to determine if any segregable parts may be released, and determined there is none.
I’m no lawyer, but I believe that the release of these documents would have been in the public interest. We’re not talking about Tom Wheeler’s personal Amazon purchase history here. These are the documents that allowed some of the largest private companies in the United States—companies that have a de facto government-sanctioned monopoly on providing internet access to huge segments of the population—to merge and become even more powerful than they once were.
I reached out to Kim Hart over email this morning to see if she had any comment on the FOIA denial or the Time Warner-Charter merger more generally. She did not. Gizmodo will be appealing the FCC’s denial of our request for these records. You can see the FCC’s denial letter to me below.