Page 7 Access Broadband over Power Line Court Decision
The Commission nonetheless maintains that it need not publish for notice and comment the five studies in full, including portions which it styles as “its staff’s internal analysis of data in a rulemaking proceeding,” Resp.’s Br. at 44, “regardless of whether the agency accepts or rejects or ignores” this material, id. at 22. It relies on EchoStar Satellite L.L.C. v. FCC, 457 F.3d 31 (D.C. Cir. 2006), but that case is inapposite. In EchoStar, the court held that neither late disclosure of data submitted by a commenter nor non-disclosure of certain staff analysis, in the absence of a timely objection to the completeness of the rulemaking record, violated the notice and comment requirements. Id. at 39-40. The study in that case on which the Commission had relied was made part of the rulemaking record two months before the Commission issued its order upon reconsideration and the non-disclosed staff analysis represented “merely . . . cogitations upon the evidence” that was part of the rulemaking record. Id. at 40. By contrast, the challenged orders indicate that the five staff studies were never fully disclosed for comment even though they were, according to the Commission, a central source of data for its critical determinations. See, e.g., Order, 19 F.C.C.R. at 21,266, 21,322, 21,275-76, 21,282, 21,296; Reconsideration Order, 21 F.C.C.R. at 9319, 9324-25.
The Commission’s other bases for redaction and non-publication do not withstand analysis. The FOIA’s deliberative process privilege, invoked by the Commission in responding to the League’s FOIA request, “does not authorize an agency to throw a protective blanket over all information . . . . Purely factual reports and scientific studies cannot be cloaked in secrecy by an exemption designed to protect only those internal working papers in which opinions are expressed and policies formulated and recommended.” Bristol-Myers Co. v. Fed. Trade Comm’n, 424 F.2d 935, 939 (D.C. Cir. 1970) (footnote and internal quotation marks omitted). By choosing “to adopt or incorporate by reference” the redacted studies, NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 161 (1975), and thereby “us[ing] . . . [them] in its dealings with the public,” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980), the Commission ceased treating them as internal working papers. The Commission’s reliance on Vernal Enterprises, Inc. v. FCC, 355 F.3d 650, 661 (D.C. Cir. 2004), for the proposition that an agency is not bound by the actions of its staff, is misplaced; unlike the refund rulings in that case, the redacted studies were neither unauthorized staff activities nor binding on the Commission.
The narrowness of our holding under section 553 of the APA is manifest. The redacted studies consist of staff-prepared scientific data that the Commission’s partial reliance made “critical factual material.” Owner-Operator Indep. Drivers Ass’n, 494 F.3d at 201 (quoting Air Transp. Ass’n of Am. v.
FAA, 169 F.3d 1, 7 (D.C. Cir. 1999)). The Commission has chosen to rely on the data in those studies and to place the redacted studies in the rulemaking record. Individual pages relied upon by the Commission reveal that the unredacted portions are likely to contain evidence that could call into question the Commission’s decision to promulgate the rule. Under the circumstances, the Commission can point to no authority allowing it to rely on the studies in a rulemaking but hide from the public parts of the studies that may contain contrary evidence, inconvenient qualifications, or relevant explanations of the methodology employed. The Commission has not suggested that any other confidentiality considerations would be implicated were the unredacted studies made public for notice and comment. The Commission also has not suggested that the redacted portions of the studies contain only “supplementary information” merely “clarify[ing], expand[ing], or amend[ing] other data that has been offered for comment.” See Chamber of Commerce II, 443 F.3d at 903. Of course, it is within the Commission’s prerogative to credit only certain parts of the studies. But what it did here was redact parts of those studies that are inextricably bound to the studies as a whole and thus to the data upon which the Commission has stated it relied, parts that explain the otherwise unidentified methodology underlying data cited by the Commission for its conclusions, and parts that signal caution about that data. This is a critical distinction and no precedent sanctions such a “hide and seek” application of the APA’s notice and comment requirements. See Gerber, 294 F.3d at 181 (quoting MCI Telecomms. Corp. v. FCC, 57 F.3d 1136, 1142 (D.C. Cir. 1995)).
As our colleague notes, see Concurring & Dissenting Op. by Judge Kavanaugh at 3, in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519 (1978), the Supreme Court has limited the extent that a court may order additional agency procedures, but the procedures invalidated in Vermont Yankee were not anchored to any statutory provision. See id. at 548; Richard J. Pierce, Jr., Waiting for Vermont Yankee III, IV, and V? A Response to Beermann and Lawson, 75 GEO. WASH. L. REV. 902, 917 (2007). By contrast, the court does not impose any new procedures for the regulatory process, but merely applies settled law to the facts. The Commission made the choice to engage in notice-and-comment rulemaking and to rely on parts of its redacted studies as a basis for the rule. The court, consequently, is not imposing new procedures but enforcing the agency’s procedural choice by ensuring that it conforms to APA requirements. It is one thing for the Commission to give notice and make available for comment the studies on which it relied in formulating the rule while explaining its non-reliance on certain parts. It is quite another thing to provide notice and an opportunity for comment on only those parts of the studies that the Commission likes best. Moreover, the court’s precedent construing section 553 to require agencies to release for comment the “technical studies and data” or “staff reports” on which they rely during a rulemaking, see, e.g., Conn. Light & Power Co., 673 F.2d at 530; NARUC, 737 F.2d at 1121, is not inconsistent with the view that “the Portland Cement doctrine should be limited to studies on which the agency actually relies to support its final rule.” 1 RICHARD J. PIERCE, JR, ADMINISTRATIVE LAW TREATISE 437 (4th ed. 2002) (emphasis added).
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