Several of my prior blog posts have highlighted process reforms that would improve both the Commission’s consideration of and public input on “meeting items” that are scheduled for a vote at the monthly Open Meetings. Now, I want to draw attention to and suggest process improvements for “circulation items,” which can either be voted electronically outside of a meeting or added to an Open Meeting.
Circulation items are often lower profile, less controversial, or more technical proposals that don’t draw as much public attention as meeting items. They also tend to be less time sensitive. For these reasons, circulation items may linger on circulation for many months without receiving votes.
There are two ways to hasten the resolution of circulation items. First, if an item has three votes in support, it is placed in “must vote” status and the Commissioner(s) who have not yet voted must do so by a set deadline, generally within a couple of weeks. Second, the item may be added to a Commission monthly Open Meeting. That process typically happens three weeks in advance of the meeting (the “white copy date”), but can occur as late as one week before the meeting (the “Sunshine date”).
Appropriate Circulation Life
Given the intense Eighth Floor focus on the monthly meeting agenda, it is not surprising that some circulation items are not voted quickly. However, if an item has been on circulation for six months, no matter the reason, it should automatically be removed from circulation. After six months, the draft is often stale, and likely would require more work to reflect the current state of the record. Moreover, if an item has been sitting on circulation for six months with only one or two votes, it is typically because the item does not have the support of a majority of Commissioners, and is unlikely to garner enough support to even trigger the must vote procedures.
In these instances, the Chairman’s office should pull the item off circulation and work with staff and the Commissioners to find a consensus. If or when one is achieved, the item can be revised and recirculated knowing that it will now be voted in a timely manner. Alternatively, the revised item could be placed on an Open Meeting agenda.
This suggestion is similar to how nominations are handled in the U.S. Senate. All non-confirmed, non-rejected pending nominations are returned to the President at the end of a session of Congress to allow the President to consider withdrawing the nomination or nominate the person again. Moreover, like the differences between circulation and Open Meeting items, Senate leadership always has the option of calling the nomination up for a recorded vote under regular order.
Circulation Items Converted to Meeting Items
Under existing procedures, long-pending circulation items can be added to a meeting. Sometimes this occurs when it is clear that the current text lacks support and little work has been done to modify the draft. In these instances, the version added to a meeting is an outdated placeholder for some yet-to-be drafted, consensus document that will hopefully emerge in the short time before the meeting.
The problem with the placeholder process approach is that Commissioners are supposed to use that time to meet with outside parties regarding the proposal. It is hard enough to have productive meetings when outside parties can’t see the text of the item that’s being voted. But it is even worse when the Commissioners themselves do not have a clear sense of what is actually on the table. While it’s true that any meeting item can change in the time leading up to the vote, those are changes to a recent and concrete proposal, not to a long pending draft that may not even reflect the current views of staff and the Chairman’s office.
Even worse, the current procedures allow for even less notice to the public and less time for consideration by Commissioners. Specifically, an item that is on circulation as of the white copy date could be added to the Commission’s monthly agenda one week prior to the Open Meeting, which is the start of the “Sunshine” period. That is, at the very moment that outside parties discover it is finally time to focus on an item, they are no longer able to contact the Commission to express their views because it is prohibited by law and FCC regulations. Keep in mind, any previous views of interested parties – and any ex partes conducted – may be completely irrelevant depending on the new text of the item so they can’t necessarily be relied upon as sufficient public input.
To fix this process, I suggest that circulation items that are converted to meeting items should be announced three weeks before the meeting (i.e., on the white copy date, which is the regular notification time for all other meeting items). Moreover, converted items that do not reflect the current views of staff and the Chairman’s office should be revised and recirculated as official meeting items no later than the white copy date. I would also argue that a draft that needs significant rewrites during the white copy period should be pulled and considered at a later date. Finally, absent extraordinary circumstances, no item should be added one week before the meeting, as that all but precludes public input on the item. These simple changes would help ensure adequate input and deliberation on all items considered by the Commission at its Open Meetings.