March 9, 2015 - 4:00 pm
By Michael O'Rielly | Commissioner

Maybe the only good thing to come from the Commission’s net neutrality proceeding is that it shined a spotlight on a dark corner of FCC process: the flawed procedure for finalizing and releasing Commission documents after they are voted on by the Commission at an Open Meeting.  Those who are not familiar with FCC procedures might think that the work ends once the Commission has voted on an item.  In truth, it is just the beginning of the end. 

The fact that there is so much confusion, and that Commission staff felt the need to issue a “Nothing to See Here” blog, shows that FCC processes are counterintuitive and unnecessarily opaque.  I’ve questioned other FCC procedures previously (here and here).  Now I am suggesting we fix the post-adoption process as well.  At the same time, the FCC really ought to take a fresh look at all of its procedures, actually codify the specific ones that still make sense, and post them so that the official process is more transparent and better understood by all. 

Editorial Privileges

The process for finalizing and releasing an item ostensibly starts by granting the relevant Bureau or Office “editorial privileges” during the meeting.  I received some attention for objecting to the routine grant of “editorial privileges” at the last meeting and many may be unfamiliar with the concept.  There does not seem to be a clear understanding even within the agency, since the procedure is not in the FCC’s rules or its current internal guides (which are not publicly available).  In other words, I was being asked to grant authority that doesn’t officially exist at all.  When alerted to this fact, I realized that I could no longer support it.       

One might assume, based on the name, that the scope of “editorial privileges,” if they did exist, would be limited to non-substantive edits, such as correcting typos and updating cross-references in footnotes.  In my former job, we called them technical and conforming edits.  At the Commission, however, the Bureaus or Offices often do much more substantial editing, including adding substantive and significant rebuttals to Commissioners’ dissents and providing sometimes lengthy responses to ex parte arguments that had not been incorporated into the draft prior to the vote.    

I do not believe that such substantive changes should be made under the guise of “editorial privileges,”especially since such a process is make-believe.  It should be the Commissioners who propose substantive changes, not the staff.  By objecting to editorial privileges, this is essentially what I was asking for:  that the Commissioners put their names to further revisions instead of hiding behind staff edits and signing off on them after the fact during the release process.    

Responses to Dissenting Commissioners

I recognize that the Commission must respond to all arguments in the record and has argued that this includes those made by dissenting Commissioners.  But the fact that significant editing must occur after the fact is simply proof that there is insufficient engagement with all of the Commissioner offices in advance of a vote. 

Even so, I try to make my views known well in advance of receiving an item, including by issuing blog posts with my principles that I share with the relevant Bureaus or Offices, and again when the item is before the full Commission prior to a vote.  It should not be surprising that, if those principles are ignored or violated, that my dissenting statement will highlight them.  Accordingly, there should be no need to respond to my statements after the fact. 

Staff should put their best foot forward, and I always endeavor to do the same.  The cycle that I’ve witnessed of revising drafts to respond to statements and revising statements to respond to drafts, well after a vote has already taken place, is a sign of a broken system. 

In the rare event that dissenting Commissioners raise truly unexpected arguments, however, then the majority Commissioners who vote for an item can direct staff to make appropriate changes.  It should not be other way around.  And such changes should be avoided unless truly needed to comply with the Administrative Procedure Act (APA).  At times, changes seem intended solely to take further pot shots at dissenting Commissioners.

Other Substantive Changes After a Vote

Making other substantive changes after the vote—for example, to further respond to other arguments in the record—is problematic as well.  If the item is not fully baked in time for the vote, then the Commission should simply delay the vote by a month or two.  There is no justification for asking Commissioners to vote on an unfinished product when FCC leadership sets its own agenda. 

Moreover, when changes are made after the vote, dissenting Commissioners do not even get to vote on them.  Let me repeat that:  no matter what the changes are and regardless of whether I would agree with them or not, by voting to dissent at a meeting, I immediately lose all rights to vote on subsequent changes.  While I can live with this, is it the best way to get the best document?  (The process is somewhat better when I have voted to approve or concur with an items I get a select say in changes made after adoption).

The Commissioners should be the ones discussing what additional changes are required if any to comply with the APA.  I work with talented colleagues who employ very capable advisors.  This is not a heavy lift. 

A Solution: More Transparency for Commission Processes

The confusion regarding FCC processes highlights the need to make them more transparent.  When I started, I was given a “Commissioner’s Guide to the Agenda Process”.  There is a version for staff as well.  But the guides are only updated periodically and do not include key topics such as the 48-hour review practice for certain Bureau-level decisions.  Additionally, some procedures were set forth by memoranda of understanding (MOU) or other intra-agency documents long ago and copies are not provided to new Commissioners unless they know to ask.  Moreover, many of the processes have never been reduced to writing.  That means they can change from item to item and they vary across the agency.  This is a United States federal agency dealing with some of the most complex transactions and policy decisions imaginable.  It shouldn't be relegated to unspoken procedures, head nods and handshakes.

It doesn’t have to be this way.  We can learn from others and improve how we operate.  For instance, in Congress, the committees adopt rules of procedure with each new Congress.  Those procedures are part of the public record and are typically posted on committee websites as well.  The FCC should do no less.  We should take time now to consider, adopt, and post official rules of procedure.  They should be codified in the Code of Federal Regulations for the public to see.  And we should update them as necessary and post them again with each new Chairmanship.