FCC general counsel Tom Johnson said there was nothing ethically questionable about the appearance of the FCC's Republican commissioners at the Conservative Political Action Conference (CPAC).
"[T]heir participation was consistent with a long tradition of Commissioners contributing to robust debate on issues of importance to the agency and the nation," Johnson wrote.
"The Commissioners' ability to accept prominent speaking engagements like this one helps promote transparency and accountability and encourages public participation and interest in Commission rulemakings, without contravening applicable ethics obligations," he added.
That came in a letter to legislators who had expressed their concerns about their attendance.
The ranking members of the House Energy & Commerce Committee and Communications Subcommittee had written the FCC's Republican members to register their serious concerns about that appearance.
“Your willingness to attend and help promote a political rally raises serious concerns about your roles as leaders of an independent federal agency, and the potential of taxpayer dollars being spent towards political ends,” the E&C ranking members wrote.
They pointed to Pai's surprise award of the NRA's "Charlton Heston Courage Under Fire Award" (a rifle) for sticking to his, well, guns on rolling back network neutrality regs in the face of personal attacks and threats from net neutrality activists. Pai did not accept the rifle, which Reps. Frank Pallone (D-N.J.) and Mike Doyle (D-Pa.) commended, but they suggested he should not have put himself in the position of getting the surprise award.
They also pointed to a complaint that O'Rielly violated the Hatch Act prohibition on federal employees engaging in partisan activity by calling for the re-election of President Trump.
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"Because participation at CPAC is not political activity, as defined by the Hatch Act," said Johnson, "there was no need for any Commissioner to abide by the limitations that the Act places on the use of appropriated funds, official staff, or agency resources in connection with such activity."
Political activity is defined, narrowly, as "an activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group," Johnson pointed out, and said the commissioners were instead "presenting information on behalf of the Commission, including both facts and opinions on public policy issues within the agency's purview."
"The FCC is an independent agency that answers to Congress-not to the administration," said Rep. Frank Pallone (D-N.J.), ranking member of the House Energy & Commerce Committee and one of those seeking asnwers from the commissioners. "Yet we are seeing a disturbing trend of Commissioners at this independent agency taking increasingly political actions, followed by attempts to evade congressional oversight. We asked the Commissioners legitimate questions and expected them to respond, not to hide behind their lawyer. The general counsel did not provide any legal reason why the Commissioners could not respond, and we still expect the Commissioners to answer our questions."
