I have made the case previously that the Commission delegates way too many substantive decisions to Bureau staff, usurping the role and obligations of duly appointed and confirmed Commissioners. Consider that in 2016 I only voted on 167 items, but almost nine times as many were decided on delegated authority. While some people found my points compelling, the prior Chairman’s staff objected, arguing that changing the practice would lead to chaos and dilatory tactics. In the spirit of compromise, I moved away from the idea that an individual Commissioner should have the right to effectively “undelegate” any item and call for a full Commission vote. Instead, I proffered a modified structure during closed-door discussions with representatives of the then-Chairman and other Commissioners’ offices. While this was ultimately rejected at the time, it seems appropriate to see if it may be agreeable in this new Commission.
The heart of my revised delegated authority proposal is an attempt to achieve balance between the need to allow Commissioners to have greater say in the workings of the Commission and preventing process abuses and unnecessary delays. Here are its main components:
- Advanced Warning – Consistent with my previous recommendation, except for the most routine matters, Commissioners should be provided no less than 48 hours to review an item that is to be decided by Bureau staff under delegated authority. Certain Bureau-level items, such as universal service decisions, are already provided to Commissioners 48 hours prior to release for informational purposes, but, under the past administration, this practice was not uniformly applied across the agency or even within the same Bureau. This reasonable practice allows a sufficient timeframe for Commissioners to determine whether the proposed decision should be decided by the full Commission. Further, it doesn't delay an item so long as to jeopardize the ability of the Commission to take swift action when necessary.
- Request by Two or More Commissioners – On any given matter, it is possible that any one Commissioner could be troubled by the substance or process of an item. Additionally, the culmination of numerous matters could influence a Commissioner to demand full Commission votes on everything under the sun, which, it was argued, could cause delay and endless votes by Commissioners. While I wouldn't necessarily have a personal problem voting more often, I can see why some may find a one-Commissioner trigger problematic. Accordingly, the threshold to bring an item up to the floor for a vote should be set at two Commissioners. Quite frankly, if a Commissioner can't convince at least one other to join their cause, we should move forward posthaste.
- Time Constraint – A concern was raised that having two Commissioners as the proper threshold may not necessarily provide a sufficient barrier to excessive or needless delays. As a remedy, I propose that any item that is removed from delegated authority under these procedures must be voted by the full Commission within seven calendar days or five business days (although I might be willing to live with a shorter deadline). This should ensure that items previously set for delegated authority, but then subsequently elevated, will be addressed quickly.
- Automatic Approval if Delayed – Under my proposal, in those instances (if ever) when a requesting office does not vote by the deadline, the item would be – at the Chairman’s prerogative – either released as approved by the full Commission (assuming the other offices voted to approve) or sent back to the Bureau for immediate issuance on delegated authority. In other words, a requesting Commissioner that does not vote by the deadline risks the possibility that their failure to act would be deemed an approval and the item would be disposed of by the full Commission. An added benefit is that this would effectively shorten the procedural path to obtain a final Commission decision by eliminating the need for stakeholders to “appeal” the Bureau-level item to the Commission by filing an application for review.
Fixing the overuse of delegated authority should be high on our list of priorities as the new Commission examines internal process reform. Hopefully, my proposal finds support from those seeking to improve the efficiency of the Commission’s procedures and those worried about improper constraints on the ability of the Commission to function.