FCC Commissioner Ajit Pai was the lone dissenter...

Office of General Counsel decision to redact and withhold documents containing “communications between Wiltshire & Grannis and the Commission” on OpenBand v. Lansdowne, a case OpenBand lost last year in the 4th U.S. Circuit Court of Appeals (CD April 9/13 p21) the order said. The case concerned an arrangement between a Virginia land developer and OpenBand that made the company the exclusive video provider for a residential subdivision, and though the FCC wasn’t a party in the case, it did file an amicus brief against the arrangement, which means communications between it and Wiltshire Grannis are privileged, intra-agency communication, the order said. That’s “a bridge too far,” said Pai’s dissent. Wiltshire Grannis is not part of the FCC, Pai said. “Its attorneys certainly are not compensated pursuant to the GS scale. And when they come to lobby the Commission, its attorneys must comply with our ex parte rules.” The commission’s intra-agency argument might apply if Wiltshire Grannis had been representing the FCC, but it was representing Landsdowne, Pai pointed out. “In its communications with the Commission, Wiltshire Grannis was pressing its client’s interest, not the government’s.” Though OpenBand had argued that a former FCC general counsel at Wiltshire Grannis had induced the FCC to file the amicus brief, the agency said there’s “no support” for OpenBand’s argument that there was a criminal conflict of interest. “The 2007 Exclusivity Order proceeding that promulgated the bar on exclusive arrangements at issue in the OpenBand litigation was conducted long after the former FCC General Counsel’s departure from the agency in 2001,” said the order. Wiltshire Grannis attorney Christopher Wright, the referenced former FCC general counsel, said it’s important for the agency and private parties on the same side to be able to communicate in legal proceedings.