Repairing Flawed and Non-Existent “Editorial Privileges”

Maybe the only real good thing to come from the Commission’s internet neutrality proceeding is that it shined the spotlight on a dark corner of FCC process: the flawed procedure for finalizing and releasing Commission files after they are voted on by the Commission at an Open Meeting. Those who are not familiar with FCC procedures might think that the work ends once the Commission offers voted on an item. In truth, it is just the beginning of the end.

The truth that there is so much confusion, and that Payment staff felt the need to issue the “Nothing to See Here” blog, demonstrates FCC processes are counterintuitive plus unnecessarily opaque. I’ve questioned various other FCC procedures previously (here plus here). Now I am suggesting all of us fix the post-adoption process as well. At the same time, the FCC really will require to take a fresh look at all of its treatments, actually codify the specific ones that will still make sense, and post them so that the official process is more transparent and better understood by many.

Editorial Privileges

The process pertaining to finalizing and releasing an item evidently starts by granting the relevant Bureau or Office “editorial privileges” during the meeting. I received some attention for objecting to the routine give of “editorial privileges” at the final meeting and many may be unfamiliar with the idea. There does not seem to be a clear understanding even within the agency, since the process is not in the FCC’s rules or its current internal guides (which are not publicly available). In other words, I used to be being asked to grant specialist that doesn’t officially exist in any way. When alerted to this fact, I actually realized that I could no longer support this.

One might assume, based on the name, that the scope of “editorial privileges, ” if they did exist, would be limited to non-substantive edits, such as correcting typos and updating cross-references in footnotes. In my former job, we called them technical and conforming edits. At the Payment, however , the Bureaus or Offices often do much more substantial modifying, including adding substantive and substantial rebuttals to Commissioners’ dissents plus providing sometimes lengthy responses in order to ex parte arguments that had not been incorporated into the draft prior to the election.

I do not believe that such substantive changes should be made under the guise of “editorial privileges, ”especially since such a process will be make-believe. It should be the Commissioners which propose substantive changes, not the particular staff. By objecting to content privileges, this is essentially what I had been asking for: that the Commissioners put their own names to further revisions instead of concealing behind staff edits and putting your signature on off on them after the fact during the release process.

Responses to Dissenting Commissioners

I recognize that the particular Commission must respond to all arguments in the record and has argued that this includes those made by dissenting Commissioners. But the fact that significant editing should occur after the fact is simply proof that there is insufficient engagement with all of the Commissioner offices in advance of a vote.

Even so, I try to create my views known well prior to receiving an item, including by issuing blog posts with my principles which i share with the relevant Bureaus or Offices, and again when the item will be before the full Commission prior to a election. It should not be surprising that, if those principles are ignored or violated, that my dissenting statement will highlight them. Accordingly, there ought to be no need to respond to my statements after the fact.

Staff should put their best foot forward, and I always endeavor to do the same. The cycle that I’ve witnessed of revising drafts to respond to statements and revising statements to respond in order to drafts, well after a vote has already taken place, is a sign of a broken system.

In the rare event that dissenting Commissioners increase truly unexpected arguments, however , then the majority Commissioners who vote for an item can direct staff for making appropriate changes. It should not be various other way around. And such changes must be avoided unless truly needed to comply with the Administrative Procedure Act (APA). At times, changes seem intended exclusively to take further pot shots on dissenting Commissioners.

Other Substantive Changes After a Election

Making various other substantive changes after the vote—for example, to further respond to other arguments in the record—is problematic as well. If the item is not fully baked in time for that vote, then the Commission should simply delay the vote by a a short while. There is no justification for asking Commissioners to vote on an unfinished item when FCC leadership sets its own agenda.

Moreover, whenever changes are made after the vote, dissenting Commissioners do not even get to election on them. Let me repeat that: no matter what the changes are and regardless of whether I might agree with them or not, by voting to dissent at a meeting, I actually immediately lose all rights in order to vote on subsequent changes. While I can live with this, is it the simplest way to get the best document? (The process is somewhat better when I possess voted to approve or concur with an items I get a choose say in changes made after adoption).

The Commissioners should be the ones discussing what extra changes are required if any to comply with the APA. I work with skilled colleagues who employ very capable advisors. This is not a heavy lift.

A Solution: More Openness for Commission Processes

The confusion regarding FCC processes highlights the need to make them more transparent. When I started, I was given a “Commissioner’s Guide to the Plan Process”. There is a version for employees as well. But the guides are only updated periodically and do not include key topics such as the 48-hour review practice for certain Bureau-level decisions. Additionally , some treatments were set forth by memoranda of understanding (MOU) or other intra-agency documents long ago and copies are certainly not provided to new Commissioners except if they know to ask. Moreover, many of the processes have never been decreased to writing. That means they can change from item to item and they differ across the agency. This is a United States government agency dealing with some of the most complex dealings and policy decisions imaginable. It shouldn’t be relegated to unspoken treatments, head nods and handshakes.

It doesn’t have to be by doing this. We can learn from others and improve how we operate. For instance, in Congress, the committees adopt rules of procedure with each new Congress. Those procedures are part of the public record and are typically posted on panel websites as well. The FCC must do no less. We should take time now to think about, adopt, and post official guidelines of procedure. They should be codified in the Code of Federal Regulations for that public to see. And we should revise them as necessary and post them again with each brand new Chairmanship.

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