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By Lydia Beyoud
April 21 — While some of the proposals to bring greater transparency to the FCC put forward by Republican lawmakers are laudable, others seem ill-conceived or even likely to introduce more red tape into the commission's rulemaking processes, two telecom industry watchers told Bloomberg BNA.
Three members of the House Energy and Commerce Communications and Technology Subcommittee circulated draft legislation April 21 that would modify several of the Federal Communications Commission's rulemaking procedures.
Subcommittee Vice Chairman Rep. Bob Latta's (R-Ohio) measure would require the agency to publish a list of items placed on delegated authority, which allows agency bureaus to make decisions on lower-level items. The bill proposes that any order, decision, report or action be described and posted on the commission website no less than 48 hours before action is taken on the item.
The proposal wouldn't apply to authority delegated to an administrative law judge or actions taken to address immediate threats to health or safety and that require an emergency FCC response.
Rep. Renee Ellmers's (R-N.C.) measure would require the FCC to post the text of approved rules online within 24 hours after a commission vote.
Rep. Adam Kinzinger's (R-Ill.) measure would require the FCC's draft orders, reports, action and other items to be made publicly available at the time they are circulated to the commissioners before a vote. The items would be posted no later than 24 hours after they are circulated or no less than 21 days before they are scheduled for a vote.
The bill wouldn't prevent the commission from making “good faith” changes to the item after circulation, and wouldn't apply to certain types of issues related to national security, foreign policy, enforcement proceedings, and other issues described under Section 552b(c) of U.S. Code Title 5.
Ellmers said her proposed bill would hold a commission of “unelected bureaucrats accountable for the policies they advance” by allowing the public to know what policies the FCC is enacting. “Today’s legislation puts an end to the agency’s standard excuses and delays when it comes to openly publishing their policies and instead strengthens accountability at the FCC,” Ellmers said in a news release.
“There are transparency issues at the FCC,” but the set of draft provisions are mixing up valid complaints with invalid ones, said Andrew J. Schwartzman, a public interest lawyer who teaches at Georgetown University's Law Center.
Kinzinger's proposal in particular to post items prior to a commission vote poses concerns for the commissioners' deliberative process and federal Sunshine Rules, which require lobbying on a particular issue to cease a week before a vote, Schwartzman said. Such a law would set off new rounds of comments right before a vote, he said.
There are good proposals to be made to streamline the workings of the commission, “but this would just tie it up in red tape,” Schwartzman said.
“I appreciate the desire for increased transparency but at some point the commission has to have a deliberative process,” said Lawrence J. Spiwak, president of the Phoenix Center, a public policy and economics think tank. Publishing an item two days before a vote would eliminate the idea of a sunshine period and allowing commissioners and their staffs to work through an item.
“You're always writing an order up until the last minute,” said Spiwak, a former senior attorney in the FCC's Office of General Counsel. Kinzinger's provision would prevent staff from being able to eliminate typos, statements that could result in unintended consequences and cut into negotiations between the commissioners' offices, he said.
However, the idea of posting a provision within a day of FCC action would benefit the public, Spiwak said. “That forces you not to have editorial privileges,” which allow staff to make changes to items after they've been voted on.
Certain items have notoriously been held up in the post-vote editing process before being publicly released, sometimes for a period of months, both men said.
Schwartzman also said prompter public disclosure of items would have merit, but said the 24-hour timeline was too hurried.
Last minute changes and negotiations worked out between commissioners ahead of the vote can take a day or two to be reflected in an item, he said. “Requiring the commission to publish in 24 hours is going to result in mistakes that will lead to needless court cases because the commission was too hasty.” Modifying the time frame to 72 hours or up to a week would be a more reasonable deadline, he said.
Commission decisions made on delegated authority have become a contentious issue in recent months. The full House Commerce Committee announced Feb. 19 that it opened an investigation into the FCC's rulemaking procedures with a focus on the commission's Open Internet order. FCC Chairman Tom Wheeler has been pressed by senior Republicans on the committee over the agency's use of delegated authority in several key policy areas since 2014.
Delegated authority is not unique to the Wheeler administration, and has been seen as a perennial issue of concern in prior administrations, a telecom industry source, speaking on background, previously said. Though Wheeler has been aggressive in using delegated authority, almost every other chairman has also been accused of misusing it at one time or another, the source said.
Spiwak and Schwartzman said the idea of publishing a list of items on delegated authority isn't a bad idea, but is already being done, to an extent, through the FCC's daily digest of regulatory actions.
Furthermore, the use of delegated authority is often intended to allow the agency to move on with non-controversial items. “I'm not sure posting all that isn't just going to add one more step in the bureaucracy of trying to get stuff out,” Spiwak said.
If passed, the proposed bill should clarify that enforcement proceedings are explicitly exempt from being posted, as enforcement actions are often delegated to the Enforcement Bureau chief, Schwartzman said.
While the lawmakers' provisions present a mixed bag of useful ideas and others perhaps in need of refinement, there are other aspects of the FCC's procedures that could do for an update, both men said.
The foremost of these, they said, is the need to change—or more strictly enforce—the commission's ex parte rules. To maintain its reputation as an independent agency, the FCC should clearly require other federal agencies and administrative bodies, including the White House, to file full ex parte disclosures after meeting with commission officials, Spiwak said.
His comments alluded to the question of whether the White House held undue influence over the FCC's recent Open Internet proceeding, in which the agency exercised what many have called the “nuclear option” of reclassifying broadband services under Title II of the Communications Act of 1934.
However, Spiwak said there have been other instances, such as during the proposed merger between AT&T Inc. and T-Mobile US Inc. in 2011, in which the FCC and the Department of Justice exhibited what he said were clear signs of coordination without sufficiently disclosing their collaboration in the public record.
Schwartzman said the FCC's Office of General Counsel should require parties filing ex partes to more fully and accurately represent what was discussed during meetings with officials. “Frankly, the existing rule is really good enough if they just enforced it, correctly,” Schwartzman said.
Schwartzman added that bureau-level decisions should be published according to Freedom of Information Act rules, but this currently isn't always done, unless someone presses the issue.
Spiwak questioned the need for modifying the agency's sunshine rules as proposed in a pair of bills reintroduced March 18 in the House and Senate. The bipartisan bills (H.R. 1396, S. 760) would allow FCC commissioners to meet privately, so long as a bipartisan majority is present and accompanied by a member of the Office of General Counsel.
“If the goal is to promote greater transparency, I'm not sure how allowing more commissioners to meet in secret helps that process,” Spiwak said.
The subcommittee also announced April 21 that it will hold an April 30 hearing at 2 p.m. on FCC process reform. Wheeler and Republican Commissioner Michael O'Rielly will testify.
O'Rielly has been driving process reforms on the commission, consistently voting over the past several monthly FCC meetings to deny editorial privileges for bureaus to continue working on items after a commission-level vote.
The trio of proposed bills is expected to comprise part of the subcommittee's work to reauthorize the agency for the first time in over 25 years. The draft FCC Reauthorization Act proposes to freeze the agency's current funding level at $339.84 million for fiscal years 2016 to 2020, and also would cap the Universal Service Fund budget at $9 billion through FY 2017.
To contact the reporter on this story: Lydia Beyoud in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Heather Rothman at email@example.com
Text of Ellmers' bill is at http://op.bna.com/der.nsf/r?Open=sbay-9vsp6j.
Text of Kinzinger's bill is at http://op.bna.com/der.nsf/r?Open=sbay-9vsp7m.
Text of Latta's bill is at http://op.bna.com/der.nsf/r?Open=sbay-9vsp9d.
Information on the April 30 hearing is at http://energycommerce.house.gov/hearing/fcc-reauthorization-improving-commission-transparency.
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