In August, I wrote a blog post urging the Commission to post on its website the actual text of the items to be considered at our Open Meetings at the same time they are provided to Commissioners. I made the suggestion because the inability of the public to obtain a complete picture of what is in a pending notice of proposed rulemaking or order routinely leads to confusion over what exactly is at stake. Making 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 barred from discussing what changes we are seeking. This barrier to a fulsome exchange can be extremely frustrating for all involved.
Despite positive feedback from people at the FCC, outside parties, Members of Congress,  and the general public, four months later, we have yet to post a single meeting item in advance. Moreover, the lack of full disclosure and transparency has continued to be a problem as some parties have not been fully briefed on recent items, such as the recently adopted 911 Reliability NPRM, while others are not briefed at all.
The reason that nothing has happened, I am told, is that there are two basic concerns with the proposal: 1) that it could be harder to comply with the 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 insurmountable.
The APA requires reasoned decision-making based on full and fair consideration of the record. That is, we need to review all of the comments and ex partes in a proceeding and respond to the substantive issues raised.
The concern is that, if we provide a copy of the draft item, we will get more specific 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 is in a draft that require us to roll up our sleeves and explain why we’ve made certain decisions and discarded alternatives. At bottom, that’s not a legal issue but a logistical one: whether we can devote sufficient resources to reviewing the record and revising a document during the three weeks prior to a Commission 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 unworkable is the current process where parties may have limited or even incorrect knowledge of what is in a draft item, and therefore raise arguments that may be, through no fault of their own, untimely, unnecessary, or misdirected. That, in turn, requires staff to spend time sifting through red herrings rather than considering focused input that could strengthen the reasoning and ultimately the legal sufficiency of the item.
Moreover, if we are inundated with feedback and need additional time to address it, the Commission may simply consider the item at a later date. That’s not to suggest that we postpone items indefinitely, but rather, that we extend consideration for another week or, at the latest, until the next month’s meeting. And since the Commission would remain under Sunshine for the item during that time, this would not lead to an endless cycle of comments and revisions requiring further delays. Staff would consider all of the arguments raised before Sunshine and then circulate the revised draft, reflective of the record, to be voted on by the Commissioners.
FOIA generally requires federal agencies to release their records to the public upon request. However, certain types of information may be exempted (i.e., withheld from release) including internal documents that are part of the "deliberative process" involved in the agency’s decision-making. Using this exemption, the FCC currently withholds all drafts of Commission items.
The concern is that releasing a single draft – the version circulated to Commissioners – would make it harder to justify withholding other drafts or even internal emails about various drafts. This is a classic slippery slope argument, and it is one that can be overcome. The fact that we would disclose one version in one instance may make it harder, but by no means impossible, to justify withholding other versions in other instances. I am confident that our talented lawyers at the agency can handle it.
Finally, I sense that there are some unspoken objections to the proposal. In particular, I gather that there is unease about making the process more transparent because parties could be in a better position to figure out which edits have been requested by which offices. I can’t speak for anyone else, but I’m not troubled by that prospect, should it occur. Having worked on the Hill 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 in my statements.
Therefore, having heard no serious objections to my suggestion, I renew my call to post the draft text of 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 on its own, perhaps the underlying statute needs to be revisited to provide direction on how the Commission can be more transparent and efficient.