Problems with FCC Advisory Committees

Through this blog, I’ve elevated quite a few issues with the current operations of the FCC, especially the workings of the so-called 8th Floor, and the crucial need to improve transparency and accountability. Let me add another area looking for review and reform: the Commission’s advisory committees (and councils). Particularly, I believe changes are necessary in such areas as the appointment process, internal functions, work assignments, reporting requirements, staff involvement, and implementation of suggestions. In other words, a top-to-bottom examination plus overhaul is in order.

Let me be clear: advisory committees can be a good thing – if founded and used properly. Seeking outside expertise and input should be encouraged, and it’s why I have advocated that all interested parties should weigh-in on our proceedings. It makes all the feeling in the world to seek advice and specialized knowledge from those integrally associated with developing, deploying or using a particular technology or set of technologies, or those who are active users of stated technology.

A fundamental problem with the current workings of the non-statutorily arranged advisory committees, however , is that the Chairman’s office has absolute and complete strength over every aspect of their existence. Certain, individual Commissioners are invited to state a few words to open a meeting or congratulate their good works, which I often do, but not much otherwise. The membership, selection of the committee chairs, timing of any reviews and/or recommendations, and all other aspects of their operations are determined solely by the Chairman. If all of the decision-making is in the hands of the Leader, how can a committee’s outcomes actually be considered bipartisan, or better-yet, nonpartisan and independent?

Given our recent practices, I also worry whether participation by some outside parties is actually truly voluntary. Naturally , members must go through the application process, but failure to be involved means that the committee may proceed down a path that is against the party’s interest. The only way to know what is going on or potentially mitigate any damage from an advisory committee is to be on the inside. Participation, however , risks perpetuating the belief that any “consensus” outcome from the committee is actually fully supported simply by every advisory committee member, which is not always the case. Plus, it is not lost on the Commission if particular businesses or advocacy groups decide not to seek membership. In some regards, it is kind of a damned if you do, darned if you don’t situation. That means there are users who are forced to take defensive postures in our advisory committees, rather than supplying the best or most appropriate recommendations.

The independence of the advisory committees must also be examined. I have watched a number of committee meetings on this closed-circuit network only to see exactly what appears to be a heavy hand from Percentage staff. Since each advisory committee already has a Commission staff designee, why would bureau chiefs or other Commission staff need to be involved at all? It seems inappropriate and possibly caustic to the proper functioning of the committee, and the ultimate realization of solid recommendations, if non-designated staff question the committee’s decisions, influence the agenda, pose questions of members, judge the possible suggestions, or potentially declare specific results. In sum, shouldn’t the advisory committee be allowed to conduct its function without such oversight?

There is also a problem with preordaining the outcome of the advisory committees’ work. In some instances, the duties come with a guarantee of future Percentage action. In other words, the committee has been asked to tell the Commission exactly how best to regulate in an area (i. e., how best to hang itself). But shouldn’t the instructions for an advisory committee make clear that committee members have the option of recommending that will no action is necessary or permitting industry to voluntarily resolve a problem or institute best practices? Sometimes the very best regulatory action is no action. Moreover, advisory committees should not be used as a way to stamp an industry blessing on the predetermined agenda (especially if it consists of areas outside the Commission’s authority). We need to approach the assignments to advisory committees in a more neutral way.

Along those lines, advisory committees’ suggestions should not be twisted to justify brand new rules and requirements. This was highlighted in a debate in one of the advisory committees last year over the use of the word “voluntary, ” within the context of new Web security requirements. It became crystal clear that the Commission staff did not imply voluntary in its traditionally defined feeling – i. e., the individual company had a choice whether or not to adopt the particular burdens. Instead, it meant only that the entity would get some state as to how exactly the burdens will be imposed. Even under the most generous understanding that is about as far from voluntary as can be. Additionally , if ultimately an advisory committee recommends voluntary industry action or guidelines, the Commission should not turn around and codify them as requirements. Voluntary should mean voluntary.

Moreover, there seems to be confusion regarding the role of the advisory committees and the scope of their authority. For instance, the formerly constituted Consumer Advisory Committee (CAC) adopted a resolution to require the Commission to develop a plan on Personal assistant accessibility and report back to the CAC on implementation of such a plan. But the job of an advisory committee is not to assign the Percentage research projects or work assignments. Somewhere along the line, the basic mission of an advisory committee got misconstrued. In order to clarify, the Commission, which is accountable to Congress, should ask this kind of committees to look into certain areas or issues and report back again with recommendations, if any. Do not ever should it be the other way around.

In the end, the opinions and operations of the Commission’s advisory committees are only valid if the Commission allows them to offer impartial, unbiased recommendations on the issues they consider. Failure to fix the problems identified over affects the integrity of these committees and raises unnecessary questions regarding their input.

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