FCC Says It Has 'No Record' of Any Communication to or from its Chairman Mentioning Limbaugh, Hannity, Levin, Beck, Ingraham or Savage

By Fred Lucas | May 18, 2010 | 8:21 PM EDT

FCC seal

(CNSNews.com) – The Federal Communications Commission (FCC) says it has “no records” of any communication either “to or from” its chairman that mentions Rush Limbaugh, Sean Hannity, Mark Levin, Glenn Beck, Laura Ingraham or Michael Savage.

The FCC made the declaration in response to a Freedom of Information Act request by CNSNews.com that sought all its records reflecting communications from FCC Chairman Julius Genachowski mentioning the popular radio hosts. "No records of correspondence responsive to your request were located as a result of a search of records of the Chairman's office," said the FCC in a May 6 letter to CNSNews.com.
Despite this assertion, a letter about “hate speech in the media” specifically citing “radio talk show host Rush Limbaugh” was in fact sent to FCC Chairman Julius Genachowski by a coalition of liberal groups last fall.
This letter came in 2009, a year that saw a series of attacks against Limbaugh by the Obama White House. President Barack Obama, for example, reportedly said in January 2009 during a meeting with congressional Republicans, “You can’t just listen to Rush Limbaugh and get things done.”
Not long thereafter, White House officials began referring to Limbaugh as the leader of the Republican Party. For example, White House Chief of Staff Rahm Emanuel, on CBS’s Face the Nation, said that Limbaugh “is the voice and the intellectual force and energy behind the Republican Party.”
White House Press Secretary Robert Gibbs also referred to Limbaugh as “the head of the Republican Party.”

This photo provided by Rush Limbaugh shows Limbaugh in his Palm Beach, Fla. radio studio, the last week of Sept., 2009. (AP Photo/Photo courtesy of Rush Limbaugh)

Later in 2009, several liberal interest groups lobbied to block Limbaugh from joining with other investors to buy an NFL team. At the time, CNN’s Rick Sanchez ran an item that falsely attributed a inflamatory statement to Limbaugh.
The March 25, 2010 Freedom of Information Act (FOIA) request from CNSNews.com to the FCC specifically asked for “all correspondence, memoranda, documents, reports, records, statements, audits, lists of names, applications, diskettes, letters, calendar or diary logs, facsimile logs, call sheets, tape recordings, video/movie recordings, notes, examinations, opinions, folders, files, books, manuals, pamphlets, forms, drawings, charts, photographs, electronic mail and other documents and communications generated by or for or sent to or from FCC Chairman Julius Genachowski referring to or relating to:  1. Localism, or local ownership rules 2.) Rush Limbaugh 3.) Glenn Beck 4.) Sean Hannity 5.) Mark Levin 6.) Michael Savage 7.) Laura Ingraham.” In order to expedite a response from the FCC, CNSNews.com subsuquently agreed to narrow the request to all "communications directly to or from the Chairman mentioning or discussing Rush Limbaugh, Sean Hannity, Glenn Beck, Laura Ingraham, Mark Levin, Michael Savage, or 'media ownership.'"
Concerning those hosts, Joel Kaufman, associate general counsel and chief of the administrative law division for the FCC, responded to CNSNews.com in a May 6 letter. In addition to stating that the FCC found "no records" of any communications to or from FCC Chairman Genachowski mentioning or discussing the radio hosts, Kaufman said the FCC "did locate briefing materials for the Chairman concerning 'media ownership' that we are withholding in their entirety pursuant to FOIA Exemption 5,5 U.S.C 552(b)(5)." He said this exemption to the FOIA law "permits the withholding of materials in order to encourage open, frank disucssions on matters of policy between subordinates and superiors."
The FCC's statement that it has no records of communications to or from the chairman mentioning the talk radio hosts stands in contrast to an online petition from October 2009 spearheaded by the So We Might See Coalition, a liberal interfaith group opposing what it called hate speech in the media. The petition was set up specifcally to send a letter to Genachowski and Lawrence E. Strickling, the assistant secretary for communication and information at the Department of Commerce.
The interfaith coalition letter is headlined “Re: Petition for Inquiry into Hate Speech in the Media and Request to update report on The Role of Telecommunications in Hate Crimes” and mentions “radio talk show host Rush Limbaugh.”
The So We Might See Coalition petition (and letter) was supporting an earlier petition launched in January 2009 by the National Hispanic Media Coalition. So We Might See Coalition spokeswoman Cheryl Leanza told CNSNews.com on May 18 that the letter and petition were sent to the FCC chairman and assistant Commerce secretary last fall. However, she said the FCC had not responded about conducting an inquiry, and she did not know exactly how many people had signed the petition.
Kaufman, the FCC counsel, said on May 18 that a records search would not always produce every document.
“We check with the chairman’s office,” Kaufman told CNSNews.com when asked about the coalition’s petition. “A couple of possibilities: One is, if they filed some petition, did they send it to the chairman’s office or did they send it to the secretary’s office? The other thing is, in any particular case, it is simply documents that the agency currently has.”
“So, depending what they send and when they send it, it may or may not be something,” said Kaufman. “It was not something that was found when they did the search. If at some point in time, a document like that was in the office of the chairman, I have no idea.”
“It might have gone to the chairman’s office but is no longer in the possession of the agency,” Kaufman continued. “There is always the possibility if something wasn’t put in a subject matter file that it just might not have been found despite doing a reasonable search. I’m not at all suggesting that happened. Those are things that could have happened.”
CNSNews.com asked Kaufman if it is possible other documents mentioning the radio hosts were also not found.
“It’s always possible,” said Kaufman. “I mean, the thing is, an agency, when it’s doing FOIA, is bound to do a reasonable search and that was done. But in some cases things depend on how they were filed, whether they can be found. I can never say it’s impossible.”
Kaufman also said that the FCC keeps some records for only three to six months.
“It really depends on the type of the document,” he said. “Some things we only keep as long as they are useful to the ongoing work of the agency. If it’s a consumer letter, it might be sent to the consumer bureau to respond. I don’t know off the top of my head what the different record retention schedules are. Certainly some of them are quite short. Some of them are only in the three-to-six months range. Some are pretty brief.”
It is possible public officials may have sought to avoid a document trail, said Hans von Spakovsky, a former Justice Department attorney and former commissioner of the Federal Election Commission, told CNSNews.com.
“It is possible there was never a mention of those names,” he said. “Anybody in government these days when discussing controversial issues often use the phone or have face-to-face meetings--not e-mails or memos because they are afraid that will come up in Congress or through a FOIA request.”

Federal Communications Commission headquarters in Washington, D.C. (Photo courtesy of FCC)

There are gray areas in determining what the agency is responsible for providing or what the agency has available, former FCC attorney Lawrence Spiwak told CNSNews.com.
“If the actual petition was filed pursuant to the rules of the commission, the commission has to answer them,” said Spiwak, president of the Phoenix Center for Advanced Legal & Economic Public Policy Studies. “They may have to keep the records in that particular case. But it could be a gray area.”
The FCC often avoids getting into content regulation, so it is possible the agency had very limited correspondence to and from the chairman’s office on the popular radio hosts, said Michael Harrison, editor of the industry journal Talkers Magazine.
“Quite often someone will say so-and-so is a hatemonger or such-and-such is not fair and balanced,” Harrison told CNSNews.com. “But that is a lot of stuff that the FCC does not want to deal with. It is a violation of the First Amendment for bureaucrats to regulate political opinion.”
It is dangerous to allege certain talk show hosts are guilty of hate speech, Harrison added.
He continued, “It is a slippery slope to blame commentators legitimately expressing their views on current events and politics and draw connections with random acts of violence. That’s very dangerous to the First Amendment and is without academic credibility or scientific research. Even if it was supported by academic research of a connection between free speech and violence, would we shut down art, shut down boxing and wrestling, shut down the First Amendment?”

FCC Considering new ownership rules

The FCC's refusal to release communications to and from the chairman on the FCC's internal deliberations on "media ownership" rules could help the agency avert sparking renewed conflict with Republicans in Congress, who are concerned about potential new diversity and local ownership rules that could take broadcast licenses away from stations that broadcast conservative hosts and give them to new owners who would feature programming more amenable to liberals. 
“Looking at ownership rules is one way to try to get the Fairness Doctrine they want but do it differently, in a way they might feel is a more legitimate way that they can easily defend,” von Spakovsky said.
Some Republicans have charged that new ownership rules could be used as a back door means to reinstate the Fairness Doctrine, a rule that required radio stations to broadcast both sides of controversial issues but had the effect of discouraging station owners from airing public affairs programming.
The Center for American Progress (CAP), a liberal group, published a report in 2007, “The Structural Imbalance of Political Talk Radio,” argued that licensees who owned multiple radio stations were more likely to feature conservative programming, and that conservative programming could be reduced if the number of stations these owners held were reduced. The CAP report was co-authored by Mark Lloyd, who is now the chief diversity officer of the FCC.
In addition to saying there was a structural imbalance in talk radio in the CAP report, Lloyd wrote a 2006 book “Prologue to a Farce: Communications and Democracy in America” that called for making private broadcasting companies pay licensing fees equal to their total operating costs to allow public broadcasting outlets to spend the same on their operations as the private companies.
The FCC’s Genachowski told Sen. Charles Grassley (R-Iowa) that the FCC has no plans to reinstate the Fairness Doctrine in a letter from August 2009, obtained by CNSNews.com in an earlier FOIA request.
“I do not support the Fairness Doctrine’s reinstatement and oppose any effort to censor or impose speech on the basis of political views or opinions,” said Genachowski. “Further, I do not support policies intended to reinstate the Fairness Doctrine through the backdoor or otherwise.”
Bringing a stealth Fairness Doctrine might not be the goal of advocates of community boards, but it could be the result, said Penny Nance, a former special advisor to the FCC.
“Community boards where all people are represented on the public airwaves may sound good, but what if a Christian radio station with a broadcast license has to have a Muslim representative on the board,” said Nance, now the chief executive officer of Concerned Women for America. “There could be unintended consequences for Christian radio and talk radio. Community boards could run counter to free speech.”