Update on Advance Posting of Commission rate Meeting Items

In August, I wrote a blog post urging the Commission to publish on its website the actual textual content of the items to be considered at our Open Meetings at the same time they are supplied to Commissioners. I made the particular suggestion because the inability of the community to obtain a complete picture of what exactly is in a pending notice of suggested rulemaking or order routinely results in confusion over what exactly is at stake. Producing matters worse, Commissioners are not allowed to reveal the substantive details to outside parties. We can’t even correct inaccurate impressions that stakeholders may have received, and we are banned from discussing what changes we have been seeking. This barrier to a fulsome exchange can be extremely frustrating for all involved.

Despite positive comments from people at the FCC, outdoors parties, Members of Congress, [1] and the general public, 4 months later, we have yet to publish a single meeting item in advance. Furthermore, the lack of full disclosure and transparency has continued to be a problem as some celebrations have not been fully briefed on recent items, such as the recently adopted 911 Reliability NPRM, while others aren’t briefed at all.

The reason that nothing has happened, We are told, is that there are two simple concerns with the proposal: 1) that it could be harder to comply with the particular Administrative Procedure Act (APA); and 2) that it could be more difficult to withhold documents under the Freedom of Information Act (FOIA). I do not find either argument persuasive or impossible.

APA

The BERKAITAN requires reasoned decision-making based on complete and fair consideration of the record. That is, we need to review all of the feedback and ex partes in a going forward and respond to the substantive issues raised.

The problem is that, if we provide a copy of the draft item, we will get more particular comments and ex partes that staff will have to address when finalizing the item. That is, we might actually get constructive feedback based on facts about what exactly is in a draft that require us to roll up our sleeves and describe why we’ve made certain decisions and discarded alternatives. At bottom, that is not a legal issue but a logistical one: whether we can devote sufficient resources to reviewing the particular record and revising a record during the three weeks prior to a Commission rate meeting. Our capable and hardworking staff and managers are up to the task, yet I’m told that it somehow would be unworkable. Such opposition is based on faulty analysis and an unwillingness to challenge the failed status quo.

What’s impractical is the current process where celebrations may have limited or even incorrect understanding of what is in a draft item, and so raise arguments that may be, through no-fault of their own, untimely, unnecessary, or misdirected. That, in turn, requires staff to invest time sifting through red herrings rather than considering focused input that could strengthen the reasoning and eventually the legal sufficiency of the product.

Moreover, if we are usually inundated with feedback and require additional time to address it, the Commission rate may simply consider the item at a later time. That’s not to suggest that we delay items indefinitely, but rather, that we extend consideration for another week or, on the latest, until the next month’s conference. And since the Commission would stay under Sunshine for the item during that time, this would not lead to great cycle of comments and changes requiring further delays. Staff might consider all of the arguments raised before Sunshine and then circulate the modified draft, reflective of the record, to be voted on by the Commissioners.

FOIA

FOIA generally requires government agencies to release their records towards the public upon request. However , certain types of information may be exempted (i. e., withheld from release) which includes internal documents that are part of the “deliberative process” involved in the agency’s decision-making. Employing this exemption, the FCC currently withholds all drafts of Commission items.

The concern is the fact that releasing a single draft – the particular version circulated to Commissioners – would make it harder to warrant withholding other drafts or even inner emails about various drafts. This is a classic slippery slope argument, in fact it is one that can be overcome. The fact that we might disclose one version in one example may make it harder, but in no way impossible, to justify withholding additional versions in other instances. I am self-confident that our talented lawyers at the company can handle it.

Lastly, I sense that there are some unsaid objections to the proposal. In particular, I gather that there is unease about making the process more transparent because celebrations could be in a better position to determine which edits have been requested by which offices. I can’t speak for anybody else, but I’m not troubled by that prospect, should it occur. Having worked on the Hill exactly where members put their names on amendments, I am comfortable being associated with my requested edits. Indeed, I typically discuss the edits I did and did not get on items within my statements.

Therefore , getting heard no serious objections to my suggestion, I renew my call to post the draft text associated with Commission meeting items on our website at the same time that they are circulated to Commissioners. If the Commission fails to do the right thing and address this issue by itself, perhaps the underlying statute needs to be revisited to provide direction on how the Commission rate can be more transparent and efficient.

[1] For instance, see laws introduced last Congress in both the particular U. S. House of Associates (H. R. 3675) and the Senate (S. 1989) that would require the particular FCC to conduct an query on the concept. The House bill flushed that institution by voice election.


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