April 1, 2015 - 1:00 pm
By Michael O'Rielly | Commissioner

I am pleased that the Chairman has now initiated a new Process Review Task Force, and there is much to do.  Working with my colleagues and staff, we need to undertake a holistic review and make necessary and meaningful changes to promote fair, open, and efficient procedures that complement Congress’s process reform efforts.  I have already offered several concrete ideas, including improvements to delegated authority, editorial privileges, and advance publication of meeting items, that must be considered by the task force and, if appropriate, by Congress. 

Now, I want to draw attention to yet another aspect of FCC procedure that warrants significant review:  the FCC’s pre-adoption process for Commission meeting items.  For those who may not be familiar, Commissioners receive meeting items from staff, on behalf of the Chairman, not less than three weeks in advance of a Commission Agenda Meeting (this is the sole, additional document I believe can and should be made public at the time of its circulation inside the Commission).  During the first two weeks, outside parties may meet with Commissioners and staff to advocate their views and seek changes, if necessary.  The last week of the three-week period is the Sunshine period.  During that time, parties may not proactively lobby the Commission, but Commissioners and staff are permitted to ask them questions.  The Sunshine period allows Commissioners time to contemplate the complex issues, discuss matters with other offices, and respond to any issues raised during the prior two weeks.        

One might think that having three weeks for Commissioners to review an item, including a one week quiet period, would provide plenty of time to carefully consider an item, suggest revisions, engage with other offices, and prepare a statement for the Open Meeting.  Unfortunately, the current practice is mired by incomplete and unfinished documents being allowed to circulate, perpetuating a belief that the circulation deadline is irrelevant.  Indeed, some are treating these three weeks as a bonus round to make significant substantive changes to the document.  That shouldn’t be the case.  Circulation should mean that the item has been transferred from staff to the Commissioners for consideration.  And during this time, bureau and office staff certainly should not be negotiating last-minute deals with outside parties or revising the document without advance notice to all Commissioners and the consent of at least three offices.    

It is patently unfair to expect Commissioners to promptly read and provide feedback on an item when staff is working on a substantially different document to be provided later—sometimes not until late the night before a vote.  At times, Commissioners have been criticized for not participating soon enough, but it is hard to properly engage when the item you receive may not be the final staff text.  Of course, edits must be made during the three-week period to accommodate Commissioner requests, but many changes to recent items have been unrelated to Commissioner concerns.  We are left to guess why revisions were made and at whose behest.

In addition, the Commission claims to use a procedure where all proposed edits by the Commissioners are solidified on an “official email chain”, which is intended to provide accountability for and a record of all substantive changes to an item.  In my experience, the chain is not functioning as intended as it is not being used to reflect all substantive changes.  For the most part, the Commissioner offices memorialize the changes that they are seeking or have already negotiated on the chain.  But additional edits are being made to the item by bureau or office staff that are not reflected on the email chain or with the requisite Commissioner consent.  Further, there is often no accompanying justification or reasoning for the last minute changes.      

The Chairman controls the Commission’s agenda and all items are prepared at his direction.  If staff feels that additional changes are truly needed for whatever reason, then they should be made under the Chairman’s name and posted on the official email chain.  If at least two other offices agree to them, then the item will be revised accordingly.  That shouldn’t be a heavy lift.   

Finally, we must codify in our rules that the ultimate text of a meeting item to be voted on at an Agenda Meeting must be provided to the Commissioner offices no later than 24 hours before the start of the meeting.  If that simple concept—what some wise people previously referred to as the pencils down moment—can’t be met, there is no shame or harm in pushing the item to the next meeting.  This common sense suggestion will ensure that the offices are fully informed as to the substance of matter to be voted.  In addition, this would speed up and improve the post-adoption process.  For instance, Commissioners would be able to finalize their statements sooner.  Staff could make appropriate non-substantive technical and conforming edits quickly, as opposed to invoking problematic “editorial privileges” after the fact.  And documents could be released without undue delay.

I hope that the Process Review Task Force and those considering FCC reauthorization and reform issues in Congress will take a serious look at pre-adoption procedures.  In the meantime, I will continue to suggest ways to improve the workings of the FCC, and I welcome feedback and suggestions.