The Process of Governance: The FCC & the Open Internet Order

The Commission’s recent ownership of new Open Internet rules offers received unprecedented attention and, together with national debate about the outcomes, offers generated significant interest in the process by which the FCC, like other impartial regulatory agencies, creates rules. In particular, people want to know when the new rules will be released for public review. The answer is tied to a wider question of governance: How does the FCC best create an enforceable rule that reflects public insight, permits internal deliberation, and is created to withstand judicial review? As with its substantive decisions, the answer is simple – by following Congress’ blueprints. As with governance generally, the goal is apparent: To engage in effective, informed action that furthers the public interest.

That’s “blueprints” in the dual. The two pillars of Congressional can are expressed in the Communications Work, the touchstone of our substantive power, and the Administrative Procedure Act (APA), the foundation of federal administrative action.

Among the Communications Act’s important provisions are two of particular importance to the Open Web Order: Title II, which governs “telecommunications service, ” and Section 706, by which Congress empowered the FCC to promote broadband deployment and to remove barriers to broadband system investment while promoting competition.

But how should these statutory commands be translated straight into policy? The APA tells us to produce rules through a process of notice-and-comment rulemaking. Why? Because as long recognized, the help of the FCC, like any independent agency, grows greater when it hears “the frequently clashing viewpoints of those whom its regulation will affect, ” in the words of a 1941 document on the Administrative Procedure Act by the Justice Department (Attorney General’s Committee, Final Report of the Attorney General Committee). In the case of the Open Web NPRM, the extended comment time period resulted in nearly 4 million remarks, an unprecedented number. All are available online.

Following the comment time period, FCC staff reviews the plans in light of the public record. The Chairman then presents his proposed purchase to the Commission for a vote – in FCC lingo, he “circulates” it to the four other commissioners. However , the order is not yet public because it is not yet last; this is the stage of internal deliberations among the Commissioners.

Regarding the Open Internet Order, the Chairman scheduled a final vote for that February 26 public meeting, moving the order three weeks beforehand as required by the Commission’s inner procedures. Typically during that three-week time period, Commissioners suggest changes to the Chairman’s draft. As amended, the proposed order is put up for a election. But this draft is still not really public.

It is recognized that independent agencies like the FCC combine attributes of legislators plus judges. Like the Congress, FCC rulemakings are open for extensive (in the Open Internet proceeding, extremely extensive) comment. That is what allows the Commission to be both impartial and expert. Like the Judiciary, the Commissioners have the opportunity to engage with each other in complete confidence, and to ensure that written orders completely reflect the back-and-forth of those deliberations.

The confidentiality from the Commissioners’ internal deliberations is a important part of the process, long recognized by legislation. So , for example , the Freedom of Information Act (FOIA) – an additional congressional command – contains a statutory permission protecting the internal deliberative processes of an agency. As explained by the Section of Justice in its Guide to the Freedom of Information Act:

… the general purpose of [the deliberative process privilege]#@@#@!!… is to “prevent injury to the quality of agency decisions. ” Specifically, three plan purposes consistently have been held in order to constitute the bases for this opportunity: (1) to encourage open, frank discussions on matters of plan between subordinates and superiors; (2) to protect against premature disclosure of proposed policies before they are really adopted; and (3) to protect towards public confusion that might result from disclosure of reasons and rationales which were not in fact ultimately the grounds for an agency’s action.

In other words, allowing the Commission to engage in frank, non-public discussions improves the decision-making process, just as receiving public comments boosts the Commission’s expertise.

Why was the Open Web order not released immediately after the Commission voted on it? Once the election on a Commission order has been taken, some additional steps remain before the decision is final and looking forward to public release. For one, Commissioners frequently prepare individual statements expressing their own opinions on the order, and those statements are generally first shared with the other Commissioners and staff. The statements may generate additional internal discussions, during which both the order and the statements might be clarified. In addition , the order alone must address any significant point made in the statements – or even risk being overturned in court for failing to address the issue. This can be a very important point – the United States Court of Appeals for the D. C. Circuit has made clear on several occasions, as recently as this past year, that, “[u]nder the APA, we must set aside orders that are ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, 5 U. S. C. § 706(2)(A), [and in] specific, ‘it most emphatically remains the work of this court to ensure that an agency employ the arguments raised before it’…. including the arguments of the agency’s dissenting commissioners. ”

Simultaneously, final proofreading and nonsubstantive “clean up” edits may be needed. The particular staff that has been responsible for writing the order is granted “editorial privileges” to prepare and circulate these required changes.

Ultimately, a final version is presented to the Commissioners for signoff by all of the Commissioners who voted in favor of the purchase. Until this is done, the Purchase is not public because it doesn’t completely reflect the full and final views of the Commission. Once the final version has been approved, it is – since the Open Internet Order will be – released to the public on the FCC’s web site.

The objective, of course , is to release the final purchase as soon as possible. But speed is not the only – or even the upmost – objective. The rulemaking process of the FCC was designed by Congress, and is carried out by the Commission, to produce rules that will stand the test of judicial review – and of time.

No Responses to “The Process of Governance: The FCC & the Open Internet Order”

By submitting a comment here you grant a perpetual license to reproduce your words and name/web site in attribution. Inappropriate comments will be removed at admin's discretion.