Submit Text of Meeting Items beforehand

Early in the tenure, Chairman Wheeler launched the laudable effort to reform a number of Commission procedures. Because I was new to the Commission when ideas had been solicited, I generally deferred in order to agency veterans on the proposals which were put forward. But now that I am 9 months into my term, I possess become convinced that there is one substantial change in our overall process that might be incredibly helpful: we should post within the FCC’s website the actual text of the items to be considered at our Open Meetings at the same time they are provided in order to Commissioners.

Section 19. 735-203 of the FCC’s rules prohibits disclosure of the content of items which will be voted on by the full Commission at a meeting or “by circulation” (not at a meeting). Therefore , as soon as bureau staff sends the particular “8th Floor” a draft intended for consideration, the Commissioners are not permitted to reveal the substantive decisions with outside parties. In other words, at the quite moment that I learn the particulars of the important rulemaking upon which I will spend the next few weeks in ex parte conferences listening to stakeholder concerns, I am not really permitted to disclose any details of the particular draft text in order to extract more thoughtful responses.

Under this process, I sometimes find that stakeholders do not know whether their concerns are addressed, put off for a future going forward, are unnecessary given the scope of the item, or if the product has taken a turn against their interests. Debates over more recent items such as E-Rate, E911 Wireless Location Accuracy, and especially Net Neutrality, could have been far more constructive if Commissioners could have had discussions with the open public about the actual text before voting.

Moreover, the inability of the public to obtain a complete picture of what is in a pending proposal or even order leads to routine confusion over what exactly is at stake. In particular, information parties glean from blog posts, comments towards the press, and meetings or briefings with the relevant bureau staff can lead to more questions than answers. Fascinated parties often worry about whether you will find any unintentional omissions or inclusions of new language that they won’t learn about until it’s too late. This barrier to a fulsome exchange can be extremely frustrating for all involved.

To become fair, there is a caveat to our non-disclosure rules, but it has its own complications and is used in limited circumstances. Specifically, the FCC Chairman has the discernment to authorize disclosure of such non-public information. While this exception can kick-start discussions, it is not available to everyone and conversations may only include a portion of an item, which causes info imbalances. In the past, it has also prompted concerns about preferential access.

While I understand the need to secure internal deliberations, there has to be a better way. Some other federal agencies have addressed this challenge and provide options to consider. The Federal Trade Commission, for example , problems Advance Notice of Proposed Rulemakings (ANPRMs) to put out for comment the particular actual text of rules before going forward to a final decision. The potential for delay with this approach may make it a link too far for some in the short term. In the meantime, our proposal would achieve the same goal without any risk of slowing consideration of items. Our Open Meetings would still occur as scheduled, yet interested parties would have the chance to break down the actual text and provide valuable analyze before starting our official Sunshine time period.

As with any written document, the more reviews a regulatory product receives before going out the door, the better. Empowering the public with the actual textual content could push the agency in order to ask better questions (including within the costs and benefits of proposed rules), fine tune its wording to prevent unintentional consequences, and obtain useful suggestions before the final rules are locked within. Greater transparency would also associated with rulemaking process more fair plus efficient and could ultimately reduce the number of petitions for reconsideration and other legal challenges that are filed after the reality and that consume significant staff assets.

For all of these reasons, allowing public access to the draft text of Open Meeting items before a vote is the right thing to do from a good government viewpoint. I hope that the FCC will, as part of its process reform effort, make this common sense update to the non-disclosure rules. And if successful, we could even think about extending it to items considered under our circulation procedures.


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