April 10, 2015 - 1:26 pm
By Michael O'Rielly | Commissioner

Over the years, Open Meetings at the FCC have taken a variety of formats.  At one time, Open Meetings were working sessions where issues were debated live and staff were questioned about different policy choices.  More recently, they have been summaries of decisions already made that are capped off by an official vote.  Lately, it has even become common to invite select guest speakers to Open Meetings to provide testimony in addition to the Bureau presentations.    

Guest Witnesses

While I fully support improving the functionality of the Open Meetings in terms of structure and process, I am not convinced that adding guest speakers is beneficial or appropriate.  While witnesses may provide valuable insight into issues the Commission is considering, these presentations come far too late in the process to inform the outcome of an item.  Indeed, they fall within a no-mans-land where they are practically too late to be ex partes but technically too early to be congratulatory.  Therefore, it’s not clear what substantive value is gained by inviting stakeholders to speak at an Open Meeting.  If the only purpose is to add a glitzy spectacle, then that’s inappropriate and perhaps not demonstrative of the proper decorum befitting a federal regulatory agency.    

Instead, it seems that the purpose of inviting guest speakers is to further promote the viewpoint championed in the item about to be adopted.  And the more controversial the item, the more likely we are to receive such presentations.  But, the lengthy Bureau presentations and approving statements already accomplish that goal.  There is no need to add to the chorus or to try to further rebut or dilute dissenting opinions.    

If the Commission is interested in hearing from outside parties in person, there are better ways to do it.  Commission staff often holds workshops and roundtables for the very purpose of inviting input from a variety of stakeholders.  These are generally well attended, including at times by the Chairman and Commissioners, and the testimony is also entered into the record of the proceeding where it can have a meaningful impact on Commission deliberations. 

Alternatively, if the Commissioners themselves are interested in convening outside parties, an option – albeit one that would need significant consideration – would be for the Commission to designate certain meetings for taking testimony (akin to hearings) and other meetings for considering items (true agenda meetings).  To be clear, both could happen in the same month.  I’m certainly not suggesting that the Commission reduce its output or delay important items.  But at meetings designated for testimony, the Commissioners could hear from a variety of perspectives, not just a couple of favored representatives.  And Commissioners could question witnesses to hone in on key issues and details.       

Nonetheless, if the Commission persists in inviting witnesses to agenda meetings, it needs to make several changes: 

First, the Chairman’s office should provide advance notice.  Commissioners typically aren’t told about invitees until a day or two (or even an hour or two) before a meeting.  Instead, Commissioners should be informed of any guest speakers no later than two weeks in advance of the meeting.  That shouldn’t be a heavy lift.  In order to arrange for guest speakers, particularly out-of-town invitees, staff must be coordinating with potential guests well in advance.  So they should be able to notify Commissioners that invitations have been extended. 

Second, the viewpoint of those Commissioners in the minority on a particular issue, if any, should be offered the opportunity to help choose the speakers or be allowed to select their own.  At present, Commissioners have no input into the selection process.  If the Commission is going to hear a particular viewpoint repeated multiple times, it would be informative to have someone share a different perspective.  At Congressional hearings, it is common for the minority to select at least one witness, and sometimes more.  Here, we are not provided that basic protocol. 

Finally, speakers should be required to provide their testimony to all Commissioner offices no later than 48 hours in advance of the meeting.  Currently, Commissioners do not receive the text of the remarks at all.  Commissioners should have adequate time to review testimony and potentially prepare questions.  While the intent behind having guest speakers is not to turn the Open Meetings into public hearings, my view is that anyone sitting at the presentation table should be prepared and willing to answer questions.  Even if Commissioners do not plan to ask questions, it would still be helpful to receive the testimony in advance so that we all know what to expect.  Additionally, if the Commission invites others to join staff at the table, then they should expect to be questioned too, even if they are not delivering prepared remarks.

Questioning the Staff Experts

In general, the Commission staff are dedicated public servants committed to producing the best substantive outcomes on the policy issues before us.  They are also the most knowledgeable about the content of an item being considered at an Open Meeting.  To the extent that my colleagues or I have questions regarding the direction taken, specifics of the proposal, the consequences of adopting any item, the process or anything else, we should be free to ask the staff at the table.  But often times my questions develop from hearing the staff presentation of an item.  In those cases, I have been hesitant to ask a pertinent question because I haven’t provided it to staff in advance. 

I suggest that we can improve the discourse and relevance of an Open Meeting by allowing unscripted questions and answers.  Accordingly, I serve notice that I no longer plan to provide questions to staff in advance of an Open Meeting.  I promise that I have no intention of blindsiding or embarrassing staff by asking questions.  There should be no gotcha moments.  In fact, I only seek to advance further understanding of the issue and examine arguments that aren’t readily apparent. 

Thankfully, the idea of an open questioning process is far from revolutionary.  Not only has the Commission utilized this style in the past, but on Capitol Hill during Committee markups, staff sits at the counsel’s table prepared to answer any question from a Congressmen or Senator.  I do not doubt for a minute that Commission staff couldn’t fulfil the same function at our Open Meetings and do an equally good – or better – job answering any question posed.   

I trust that the Process Review Task Force can examine and reform the current witness invites and staff questioning procedures during Open Meetings along with the many other concrete suggestions I’ve already put forward to improve FCC procedures.