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

Section 19.735-203 of the FCC’s rules prohibits disclosure of the content of items that 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 “8th Floor” a draft for consideration, the Commissioners are not allowed to reveal the substantive decisions with outside parties.  In other words, at the very moment that I learn the particulars of an important rulemaking upon which I will spend the next few weeks in ex parte meetings listening to stakeholder concerns, I am not permitted to disclose any details of the draft text in order to extract more thoughtful responses. 

Under this process, I sometimes find that stakeholders do not know whether their concerns have been addressed, put off for a future proceeding, are unnecessary given the scope of the item, or if the item has taken a turn against their interests.  Debates over more recent items such as E-Rate, E911 Wireless Location Accuracy, and especially Net Neutrality, would have been far more constructive if Commissioners could have had discussions with the 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 order leads to routine confusion over what exactly is at stake.  In particular, information parties glean from blog posts, comments to the press, and meetings or briefings with the relevant bureau staff can lead to more questions than answers.  Interested parties often worry about whether there are 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 be fair, there is a caveat to our non-disclosure rules, but it has its own problems and is used in limited circumstances.  Specifically, the FCC Chairman has the discretion 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 cover a portion of an item, which causes information imbalances.  In the past, it has also prompted concerns about preferential access.

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

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

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 perspective.  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.