January 9, 2018 - 10:30 am
By Michael O'Rielly | Commissioner

While I previously proposed fixes to improve the circulation process by making the documents public and addressing what amounts to stale items and those converted to Open Meeting items, we also need to update and improve the process for voting circulation items.  Unlike items disposed of at the Commission’s monthly Open Meetings, items circulated to Commissioners for consideration outside of the meetings (those on the Circulation List) have no voting deadline until they enter “must vote” status.  While that might sound like a concrete deadline, far too often, quirks in the process can delay the conclusion of items by over a full month, even for smaller or non-controversial items.  Accordingly, the Commission can and should expedite the must vote timing, which can be done without undermining the ability of Commissioners to examine, debate, and vote on any circulation item.

By way of background, determining when must vote is initiated can be a bit tricky even for those who follow the Commission on a regular basis, especially since the process is not explained in any public document.  Under the Commission’s internal procedures, must vote is only triggered when an item sent internally by a Bureau or Office to Commissioners for disposal on circulation has sat for 21 days and has a quorum (i.e., votes by three or more Commissioner to approve, approve in part, or concur). 

In terms of timing, the initial must vote deadline for any Commissioner that hasn’t previously voted occurs at the close of business twelve calendar days after the Friday after the must vote conditions have been met.[1]  For those counting along, that’s the second Wednesday after the relevant Friday.  Easy, right?  In addition, the must vote deadline may be automatically extended for one additional week at the request of a non-voting Commissioner.  Adding it all up, even if a majority of Commissioners vote in favor of an item the day it is circulated, it can take between 34 and 45 days before an item can be concluded under the must vote procedures.[2]  And that excludes, of course, additional discretional extensions that may be granted to accommodate further discussion or edits to an item as it comes to resolution. 

While this process may have made sense when originally instituted, it’s appropriate to update the overall timing given our experience over the years.  In particular, I suggest that the timeline, which is not required by law or the Commission’s rules, can be reduced by eliminating the requirement that an item sit around for 21 days before the voting deadline is triggered.  While the original 21-day timeframe correlates to the number of days Commissioners have to review a meeting item before a vote, the ability to have an additional twelve days and a one-week extension means it can take longer to dispose of circulation items than meeting items, which are typically more complex and controversial.  At a minimum, this 21-day wait period could be trimmed by at least a week, but I would argue that it could be shortened even more.  Speaking from experience, doing so still gives Commissioners plenty of time to consider and vote on an item.  

In essence, combining reform to the must vote timing with publicly releasing the text of circulated items (minus adjudications) would vastly improve the overall review and provide necessary scrutiny from interested parties of circulation items.  Just like making Open Meeting items public – and huge appreciation is due to Chairman Pai for making this new practice permanent – circulation items and the Commission at large would benefit from everyone seeing the exact text under consideration.  And, more targeted review complements the efforts to expedite the must vote process.  Thus, by revealing the circulation items in advance, we can appropriately speed up the clock on must vote.   

[1] But, if quorum is achieved on a Friday after the initial 21-day waiting period requirement is met, the twelve-day clock does not start until the following Friday.

[2] For instance, it could take 34 days to conclude the must-vote process if a circulation item is sent to the floor on a Friday and voted by three Commissioners on the same day.  After the 21-day waiting period, the must vote period would start on that day.  Twelve days later the must vote deadline would occur, unless a Commissioner seeks an automatic 7-day extension.  If an item was circulated on a Monday, the 21-day waiting period would expire on a Monday, but must vote clock would not commence until Friday.  If you add an automatic 7-day extension, the item would be pending for 45 days.  These numbers are representative of the timeframes that are experienced if an item is voted within the first 21 days after circulation.  However, if an item was voted on the 21st day after circulation and that day happened to fall on a Friday, the 12-day must vote period would commence the following Friday, meaning that must vote would conclude 41 days after circulation or 48 days if there is an automatic extension.  The circulation day is included in these figures.