February 2, 2015 - 3:47 pm
By Michael O'Rielly | Commissioner

I am fortunate to work at an agency with incredibly dedicated and talented staff.  The vast majority of personnel at the FCC are hardworking public servants, intent on conscientiously carrying out our work overseeing the communications industry.  The Daily Digest shows how much they accomplish every single day on a wide range of issues.  Generally, I support their efforts.

Notwithstanding my support for the staff’s work, there are certain aspects of the FCC’s duties that should be reserved and addressed by the full Commission.  Chief among those are matters that are new or novel.  The FCC’s rules reserve new or novel issues for a Commission vote—and there are good reasons for doing so.  That way the full Commission has the opportunity to set precedent on matters of first impression that can have significant and long-lasting legal and policy consequences.  It is also helpful for the Commissioners, with their broader perspectives, to act on issues that may have implications for other segments of the communications industry.  Moreover, it ensures that parties that want to challenge final FCC decisions are able to do so in a timely manner.  It does little good to have a decision be decided at the bureau level when everyone knows the result will be appealed to the full Commission (unless the goal is to intentionally fail to act on an application for review).   

At times, the Commission has, by order, given additional authority to the Bureaus and Offices, beyond what is already provided for in the rules.  Such ad hoc delegation can sometimes be permissible.  However, looking back over the last 30 years, that seems to be the exception, not the norm.  And past delegations shouldn’t become a justification for future delegations.  Why am I hamstrung by a decision to delegate an issue to staff made by a Commission years ago? 

Additionally, given that some of our recent disagreements have fallen along party lines, it is extremely problematic for the Commission to have a 3-to-2 vote that includes broad delegation to the staff to address a subject area further.  As a minority commissioner, it is bad enough to have your ideas and concepts rejected as a whole and have little to no input on an item (unless you completely ignore your principles).  It is worse to see the extension of those decisions expanded upon for years to come by a bureau under delegated authority.  While I wholeheartedly admit that I was not elected and therefore not directly answerable to the American people, my colleagues and I are subject to confirmation by the Senate, resulting in a closer level of accountability to the democratic process than that maintained by a bureau or office chief.    

Over the past few years, it seems more and more work has been delegated and it now appears that there is a renewed effort to push even more of the Commission’s work to its staff.  That may be due, in part, to a desire to speed up the agency’s decision-making process.  While that’s a worthy goal, I stand ready to act quickly on any matters presented to the full Commission.  And using delay as an excuse doesn’t hold up to a review of the facts.  If you examine the speed at which this Commission is deciding items, it should stack up against any other Commission in recent time.  For example, the public circulation list contains few items and those that are pending have not been subject to lengthy delays caused by Commissioners.

Accordingly, changes to our delegation practices are in order.  First and foremost, a Commissioner should have the right to request any item be bumped up to the full Commission for resolution.  In fact, some people already thought this was in the Commission’s rules or customary FCC practice but recent items have proven otherwise.  Perhaps there can be some time limit attached in these limited, specific circumstances (e.g., 30 days), but to foreclose the option completely is misguided.  What is so harmful about allowing Commissioners to actually vote on an item? 

Second, there should be a codification of the 48-hour rule with appropriate modifications.  There is a practice shared by some bureaus that the Commissioners are notified 48 hours in advance of an item’s release; other bureaus provide 24-hour notice and others provide zero.  The 48-hour time frame should become standardized across the Commission to allow Commissioners time to decide whether they would like to request an item be decided by the full Commission.  This also would address the problem that, once issues are delegated, it is difficult to follow the decisional path of a bureau, making it harder to assess the overall impact of FCC regulation on industry and consumers. 

Lastly, the scope of any delegation should be limited under any circumstances.  Beyond the current new and novel standard, there should be limits on exactly what is permissibly delegable.  In the past, some controversial issues that were decided on the quick consisted of rough frameworks or outlines (e.g., term sheets).  It cannot be acceptable to punt an item’s entire fate to a bureau.  That is no way to operate an agency that has so much impact on the American economy.  Thankfully, our Chairman and the current Commission has never chosen this path.  But to prevent its reoccurrence at some point, there should be clear guidelines on what can be delegated and what cannot.     

Fixing the delegation process should be a priority for the Commission.  If the Commission is unwilling or unable to do so, I trust the Congress will review the issue in further detail.