Making the FCC Transparent Again

Submitted on February 2, 2017

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Robbie's Round-Up for the Week of January 30 - February 3, 2017
(Editor's note)

Since the 2016 elections, we have been looking at the people who will have the greatest impact on telecommunications and media policy in Congress and at the Federal Communications Commission. This week, we got a glimpse -- just a glimpse -- at changes we’ll be seeing in how the FCC operates.

On February 2, FCC Chairman Ajit Pai announced a pilot program aimed at improving how the agency communicates with the public. He is hoping, he says, that the move starts to make FCC operations more transparent and as open and accessible as possible. Currently the FCC announces the items it will vote on at its monthly meetings about three weeks in advance of the event. However, the text of the items have not been made public until after commissioners have voted. Historically, some policy analysts say, this was to ensure that the FCC's five members could work better together, allowing them to strike policy compromises without being forced by outsiders to adopt extreme political positions. But although the secrecy may have once helped commissioners broker agreements, the FCC has grown deeply divided in recent years.

“Usually, drafts created negotiating room,” said Blair Levin, who served as the chief of staff under former-FCC Chairman Reed Hundt. “Now, the chairman's negotiating position looks like a final position which undercuts negotiating ability.”

On February 2, Chairman Pai released to the public the items the Commission will be voting on at its next open meeting on February 23.

In this first test case, Chairman Pai released 1) a Notice of Proposed Rulemaking (NPRM) that seeks comment on allowing television broadcasters to use ATSC 3.0, the next-generation broadcast standard, and 2) a Report and Order giving AM radio broadcasters more flexibility in siting their FM translators. Chairman Pai said:

An NPRM and a Report and Order are essentially the beginning and the end of a conversation that an administrative agency has with the American public about regulation. One announces a proposal and asks for public input; the other takes stock of that input and announces a decision. I have deliberately chosen one NPRM and one Order for purposes of this test run. Between now and our monthly meeting on February 23, we will closely assess how the process plays out with respect to these items. Should things go well, my hope is to make it the norm to publicly release, well in advance, the text of all agenda items for monthly Commission meetings. And my goal is a simple but powerful one: equal access to the administrative process.

The public still won't be able to see any changes the agency's members make to the documents between the public release and the ultimate vote. The final text of any item, then, could come as a surprise.

Chairman Pai’s move should come as no surprise. As leader of the “loyal opposition” under former-FCC Chairman Tom Wheeler, Commissioner Pai was a frequent critic of FCC process, saying it lacked transparency -- he has long argued for letting the public know what is being voted on at public meetings -- and the kind of regulatory certainty that a competitive marketplace needs. Chairman Wheeler argued that the text of documents being voted was still work product and that what should be published was the final version, which includes edits that may come after the vote. To his credit, Chairman Wheeler generally got those versions out faster than his predecessors.

In December 2016, when telecommunications pundits were nodding at him as the possible next FCC chair, Pai delivered a speech to the Free Speech Foundation saying:

It is time to bring more openness and transparency to the FCC…. We … need to let the American people have more information about our agency’s operations. From publicly releasing the text of documents we vote on at public meetings to establishing an FCC Dashboard with key performance metrics, we can better enable the public to know what and how we are doing.

As Chairman Pai noted in this week’s statement, this is one of many FCC process reforms Congress is currently considering. Federal Communications Commission Process Reform Act of 2017 (H.R. 290) was introduced in the House of Representatives on January 4 and passed, unanimously on a voice vote, on January 23. It awaits consideration by the Senate. A similar bill was approved – narrowly on a 13-11 party line vote -- by the Senate Commerce Committee in the last Congress, but it was never considered on the Senate floor.

House Commerce Committee Chairman Greg Walden (R-OR), who sponsored the process reform legislation, and Communications and Technology Subcommittee Chairman Marsha Blackburn (R-TN) applauded Pai's move:

This is the type of transparency we’ve been urging the FCC to implement for the last several Congresses. Then-Commissioner Pai and Commissioner O’Rielly had long pushed for greater transparency during Chairman Wheeler’s tenure, and we are pleased to see that just two weeks into Commissioner Pai's chairmanship we are already seeing positive changes at the commission. We applaud Chairman Pai’s decision to release the text of the FCC’s proposed AM revitalization and next generation broadcast items. We’re glad to see these items being advanced and look forward to working with Chairman Pai to create a more open, transparent, and accountable FCC.

Key senators also applauded the decision.

"I applaud Chairman Pai for beginning the practice of making public the content of items intended to be voted on at FCC Open Meetings,” said Commerce Committee Chairman John Thune (R-SD). “Commissioner O'Rielly also deserves credit for long advocating for this change. After leading an investigation last year into the FCC’s manipulation of information in advance of open meetings, I believe that a more transparent FCC will be more credible and more accountable. I am pleased that the new leadership is correcting this long-recognized process flaw.”

"Chairman Pai is taking quick and decisive action to make the agency more transparent," said Communications, Technology, Innovation, and the Internet Subcommittee Roger Wicker (R-MS). "The American people stand to benefit from this important and long-overdue reform."
“Transparency should be a cornerstone of government, and the FCC is no exception to this,” said Sen. Dean Heller (R-NV), sponsor of the Federal Communications Commission Process Reform Act. “While the previous leadership at the FCC did not embrace this idea, I applaud FCC Chairman Pai for setting an early example in his chairmanship by releasing the text of the rules before the Commission votes and appreciate Commissioner O’Rielly’s commitment to this effort. In Nevada, the technology sectors are rapidly advancing and driving jobs and investment, and as the agency playing a significant role in these industries, the FCC must be accountable to the American public. As the leading advocate for FCC process reform in the Senate, I will continue working to codify this important transparency reform at the FCC.”

After Chairman Pai’s announcement, fellow Republican FCC Commissioner Michael O’Rielly said:

This is an idea whose time has finally come. I applaud Chairman Pai for taking the initiative to implement this important change to our procedures and I can’t wait to see all of the other process changes he has planned in the coming months. He has been a great partner in this effort.

Today is a major step forward for the agency in terms of transparency and accountability. While it may make our jobs a bit more challenging, it is the right thing to do for the American people, the practitioners before the Commission and the professional press who report on Commission activities.

If this initial attempt goes well – and I see no reason why it wouldn’t -- I think we will all find this to be a significant upgrade in terms of quality of feedback, quality of process, and ultimately quality of the Commission's work product. Soon, we can make this standard operating procedure for more of the Commission's work.

Commissioner O’Rielly has been a major proponent of FCC process reform. In July 2016 he released a slate of 24 proposals. On the top of his list: “Publicly post Open Meeting items at the same time as circulated to Commissioners.”

Back in 2013, Pai talked to Broadcasting&Cable about some other process reforms he would like to see, saying, “Some of them are pretty simple. Establishing more deadlines for ourselves and giving those deadlines some teeth, whether that it is in the context of a rulemaking, saying the FCC should act by such and such a date, or in the context of an adjudication." He said similarly adding sunset clauses to rules unless they are necessary in the public interest. "I don't see process reforms like these as partisan," he said.

We’ll be tracking the progress of the FCC Process Reform bill and any changes Chairman Pai adopts – and we’ll see you in the Headlines.

Editor's note:

After publication we received a reminder that Blair Levin (quoted above), a nonresident senior fellow at The Brookings Institution and former FCC Chief of Staff, and Larry Downes, a project director at the Georgetown Center for Business and Public Policy, offered their own idea on how to make the FCC more transparent. We regret not highlighting their idea to hold a second monthly meeting, during which FCC staff gives presentations on major items that might be brought before the Commission at least 60 days before any vote.

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