May 1, 2015 - 3:06 pm
By Michael O'Rielly | Commissioner

Through this blog, I’ve raised quite a few issues with the current operations of the FCC, especially the workings of the so-called 8th Floor, and the critical need to improve transparency and accountability. Let me add another area in need of review and reform: the Commission’s advisory committees (and councils). Specifically, I believe changes are necessary in such areas as the appointment process, internal operations, work assignments, reporting requirements, staff involvement, and implementation of recommendations. In other words, a top-to-bottom examination and overhaul is in order.

Let me be clear: advisory committees can be a good thing – if established and used properly. Seeking outside expertise and input should be encouraged, and it’s why I have advocated that all interested parties should weigh-in on our proceedings. It makes all the sense in the world to seek advice and technical knowledge from those integrally involved with developing, deploying or using a particular technology or set of technologies, or those who are active users of said technology.

A fundamental problem with the current workings of the non-statutorily set advisory committees, however, is that the Chairman’s office has absolute and complete power over every aspect of their existence. Sure, individual Commissioners are invited to say a few words to open a meeting or congratulate their good works, which I often do, but not much else. The membership, selection of the committee chairs, timing of any reports and/or recommendations, and all other aspects of their operations are determined solely by the Chairman. If all of the decision-making is in the hands of the Chairman, how can a committee’s outcomes ever be considered bipartisan, or better-yet, nonpartisan and independent?

Given our recent practices, I also worry whether participation by some outside parties is actually truly voluntary. Of course, members must go through the application process, but failure to be involved means that the committee may proceed down a path that is against a party’s interest. The only way to know what is going on or potentially mitigate any harm from an advisory committee is to be on the inside. Participation, however, risks perpetuating the belief that any “consensus” outcome from a committee is actually fully supported by every advisory committee member, which is not always the case. Plus, it is not lost on the Commission if particular companies or advocacy groups decide not to seek membership. In some regards, it’s kind of a damned if you do, damned if you don’t situation. That means there are members who are forced to take defensive postures in our advisory committees, rather than providing the best or most appropriate recommendations.

The independence of the advisory committees must also be examined. I have watched a number of committee meetings on our closed-circuit network only to see what appears to be a heavy hand from Commission staff. Since each advisory committee already has a Commission staff designee, why would bureau chiefs or other Commission staff need to be involved at all? It seems inappropriate and potentially caustic to the proper functioning of the committee, and the ultimate realization of solid recommendations, if non-designated staff question the committee’s decisions, influence the agenda, pose questions of members, judge the possible recommendations, or potentially declare specific outcomes. In sum, shouldn’t the advisory committee be allowed to conduct its work without such oversight?

There is also a problem with preordaining the outcome of the advisory committees’ work. In some instances, the tasks come with a guarantee of future Commission action. In other words, the committee is being asked to tell the Commission how best to regulate in an area (i.e., how best to hang itself). But shouldn’t the instructions to an advisory committee make clear that committee members have the option of recommending that no action is necessary or allowing industry to voluntarily resolve an issue or institute best practices? Sometimes the best regulatory action is no action. Moreover, advisory committees should not be used as a means to stamp an industry blessing on a predetermined agenda (especially if it includes areas outside the Commission’s authority). We need to approach the assignments to advisory committees in a more neutral way.

Along those lines, advisory committees’ recommendations should not be twisted to justify new rules and requirements. This was highlighted in a debate in one of the advisory committees last year over the use of the word “voluntary,” within the context of new Internet security requirements. It became clear that the Commission staff did not mean voluntary in its traditionally defined sense – i.e., the individual company had a choice whether or not to adopt the specific burdens. Instead, it meant only that the entity would get some say as to how exactly the burdens would be imposed. Even under the most generous understanding that is about as far from voluntary as can be. Additionally, if in the end an advisory committee recommends voluntary industry action or guidelines, the Commission should not turn around and codify them as requirements. Voluntary should mean voluntary.

Moreover, there seems to be confusion regarding the role of the advisory committees and the scope of their authority. For instance, the previously constituted Consumer Advisory Committee (CAC) adopted a resolution to require the Commission to develop a plan on Lifeline accessibility and report back to the CAC on implementation of such a plan. But the job of an advisory committee is not to assign the Commission research projects or work assignments. Somewhere along the line, the basic mission of an advisory committee got misconstrued. To clarify, the Commission, which is answerable to Congress, should ask such committees to look into certain areas or issues and report back with recommendations, if any. Under no circumstances should it be the other way around.

In the end, the opinions and operations of the Commission’s advisory committees are only valid if the Commission allows them to offer independent, unbiased recommendations on the issues they consider. Failure to fix the problems identified above affects the integrity of these committees and raises unnecessary questions regarding their input.