FCC’s Pre-Adoption Process Also Needs Work

I am pleased that the Chairman has now initiated a new Process Review Task Force, and there is much to do. Working with the colleagues and staff, we need to embark on a holistic review and make essential and meaningful changes to promote fair, open, and efficient procedures that will complement Congress’s process reform initiatives. I have already offered several concrete ideas, including improvements to delegated authority, editorial privileges, and advance publication of meeting items, that needs to be considered by the task force and, if appropriate, by Congress.

Now, I want to draw focus on yet another aspect of FCC procedure that will warrants significant review: the FCC’s pre-adoption process for Commission conference items. For those who may not be familiar, Commissioners receive meeting items from employees, on behalf of the Chairman, not less than three weeks in advance of a Commission Plan Meeting (this is the sole, extra document I believe can and should be produced public at the time of its circulation within the Commission). During the first two weeks, outdoors parties may meet with Commissioners and staff to advocate their sights and seek changes, if necessary. The last week of the three-week period could be the Sunshine period. During that time, parties may not proactively lobby the Fee, but Commissioners and staff are permitted to ask them questions. The Sunshine period allows Commissioners time to contemplate the complex issues, discuss matters with other offices, and respond to any problems raised during the prior two weeks.

One might think that getting three weeks for Commissioners to review an item, including a one week quiet period, would provide plenty of time to carefully consider an item, suggest revisions, engage with other offices, and prepare a statement for the Open Meeting. Unfortunately, the current exercise is mired by incomplete and unfinished documents being allowed to flow, perpetuating a belief that the blood flow deadline is irrelevant. Indeed, several are treating these three weeks as a bonus round to make substantial substantive changes to the document. That shouldn’t be the case. Circulation ought to mean that the item has been transferred through staff to the Commissioners for thing to consider. And during this time, bureau and office staff certainly should not be negotiating last-minute deals with outside parties or studying the document without advance discover to all Commissioners and the consent associated with at least three offices.

It is patently unfair to expect Commissioners to promptly read and provide feedback on an item when staff is definitely working on a substantially different record to be provided later—sometimes not till late the night before a vote. At times, Commissioners have been criticized for not participating soon enough, but it is hard to properly engage when the item you receive might not be the final staff text. Of course , edits must be made during the three-week period to accommodate Commissioner requests, but many changes to recent items have been not related to Commissioner concerns. We are remaining to guess why revisions were made and at whose behest.

In addition , the Commission claims to use a procedure where all proposed edits by the Commissioners are solidified on an “official email chain”, that is intended to provide accountability for along with a record of all substantive changes to an item. In my experience, the chain is just not functioning as intended as it is not really being used to reflect all substantive changes. For the most part, the Commissioner offices memorialize the changes that they are searching for or have already negotiated on the chain. But additional edits are being made to the item by bureau or office staff that are not reflected on the email chain or with the essential Commissioner consent. Further, there is usually no accompanying justification or reasoning for the last minute changes.

The Chairman controls the Commission’s agenda and all items are prepared on his direction. If staff feels that additional changes are really needed for whatever reason, then they should be produced under the Chairman’s name and published on the official email chain. In the event that at least two other offices accept to them, then the item will be revised accordingly. That shouldn’t be a large lift.

Finally, we must codify in our rules that the best text of a meeting item to be voted on at an Agenda Conference must be provided to the Commissioner offices no later than 24 hours before the start of the meeting. If that simple concept—what some wise people previously referred to as the pencils down moment—can’t be met, there is no shame or damage in pushing the item to the next conference. This common sense suggestion will ensure that the offices are fully informed as to the substance of matter to be voted. In addition , this would speed up and improve the post-adoption process. For instance, Commissioners would be able to finalize their statements faster. Staff could make appropriate non-substantive specialized and conforming edits quickly, in contrast to invoking problematic “editorial privileges” after the fact. And documents could be released without undue delay.

I hope that the Process Review Job Force and those considering FCC reauthorization and reform issues in Congress will take a serious look at pre-adoption procedures. In the meantime, I will continue to suggest ways to improve the workings of the FCC, and I welcome feedback and suggestions.

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