Monday, January 09, 2017

A Proposal for Trialing FCC Process Reforms

For over a decade, I’ve been advocating various reforms in the way the Federal Communications Commission conducts its business, wholly aside from debating the rightness or wrongness of the substance of particular agency decisions. In other words, I’ve long advocated certain process reforms intended to make the Commission function in a more efficient and effective manner, and, when appropriate, in a more transparent manner.

Without further elaboration here, I’ve been privileged to testify before the House Subcommittee on Communications and Technology in 2011, 2013, and 2015, in hearings on various draft bills proposing a variety of specific FCC process reforms. Congressman Greg Walden, then Chairman of the House Subcommittee and now Chairman of the full Committee on Energy and Commerce, deserves much credit for diligently pursuing the cause of FCC process reform during the last six years. Although several of the bills he sponsored, along with various of his colleagues, passed the House of Representatives, they were not given serious consideration in the Senate.

At the FCC, despite a few very modest gestures, there were no serious efforts by Chairman Tom Wheeler to adopt consequential reforms in the way the Commission conducts business. Indeed, some might argue that there has been a deterioration of process during Chairman Wheeler’s tenure that, if anything, has contributed to a deterioration in the substantive quality of the agency’s decisions.

But that is not the argument I wish to make today.

What I want to suggest is that, as soon as practical after it gets organized, the newly reconstituted Commission should get on with implementing process reforms. And, more specifically, I suggest, for certain changes that may be considered more controversial for one reason or another, that the Commissioners consider implementing them on a trial basis with a review to take place on a date certain. There is no reason why the Commission cannot be open to some experimentation and trialing in the area of process reform, secure in the knowledge that experience may dictate further modifications.

It is well-known that Commissioner Michael O’Rielly has been a vocal, persistent, and eloquent advocate of FCC process reform over the last several years through his blogs, speeches, and opinions. Indeed, in a July 2016 blog, “Snapshot of Process Reform Ideas,” Commissioner O’Rielly posted a list of 24 proposals he has made. In doing so, he explained that:

These efforts have never been an attempt to undermine the authority of the Chairman or the ability of the Commission majority, whoever they may be on a particular issue, to get items completed in a timely manner.  Instead, this entire effort is about improving the efficiency of the Commission and increasing fairness and transparency with regard to a process that is questionable in some instances and downright objectionable in others.

I’ve agreed with many of Commissioner O’Rielly’s suggestions and have questions about others. Some are truly more pure process reforms than others, and some are more consequential than others. But no one can deny the effort that Commissioner O’Rielly has put into this project or the thoughtfulness with which he has approached it. (I would be remiss in not applauding Commissioner Pai’s ongoing process reform efforts as well.)

Consider one of Commissioner O’Rielly’s (and Commissioner Pai’s) most consequential proposals: “Publicly post Open Meeting items at the same time as circulated to Commissioners.” I happen to agree with this proposal. As I explained at some length in my May 2015 House Subcommittee testimony, posting the draft Open Meeting agenda items is consistent with the “best practices” suggested by the Administrative Conference of the United States in a 2014 Recommendation. And in an era when it became common practice for the agency’s Chairman to post a blog describing his own views regarding the contents of a draft item, often along with a “fact sheet” containing the Chairman’s own version of the “facts,” it seems to make little sense to deny the public access to the full text of the item. Posting the text on the Commission’s website will eliminate disparities in access by the public to Commission information and also reduce misunderstandings that arise from selective filtering and partial release of snippets of the draft item.

Nevertheless, because posting draft Open Meeting items represents a substantial departure from the way the Commission has operated for decades, many question how this change will affect the way the Commissioners interact among themselves and the public during the period leading up to the Sunshine cut-off period and whether, in turn, such changes may affect adversely the quality of the Commission’s decisionmaking. These are not frivolous concerns.

The principal point I want to make here is that I see no good reason why the Commissioners could not adopt that particular process reform with the proviso that the new procedure will be evaluated after a year or two. And, then, based on actual operating experience, changes can be made if deemed advisable.

The same can be said for other reform proposals about which there may be legitimate differences of opinion, such as requiring that all “editorial revisions” be completed and orders published within three or four business days after the Open Meeting. Or allowing any Commissioner to elevate a decision about to be made on delegated authority to a full Commission vote.

I start from the premise, which shouldn’t be subject to serious dispute, that there are ways that the Commission can improve its process – the manner in which it conducts its business – so that it operates in a more efficient, more effective, and more transparent fashion. Every institution can. There is no reason there should be any partisan disagreement about this.

Process matters. Better process not only can improve the productivity of the Commission, but, more importantly, it can improve the quality of the agency’s decisions.
I certainly am not suggesting that all process reforms need to be subject to trials. But if the notion of trialing changes in procedure is a means to the end of getting certain consequential process reforms adopted sooner rather than later, the newly constituted Commission should be open to this idea.