House Bill Would Require FCC List of Foreign Adversary Ownership of Communications Infrastructure

On February 3, Reps. Elise Stefanik, Ro Khanna, and Mike Gallagher announced the reintroduction in the House of Representatives of the Foreign Adversary Communications Transparency (FACT) Act. The bipartisan FACT Act was originally introduced in the 117th Congress on October 25, 2022. The bill – which does not have a number as of this posting – is intended to provide greater transparency regarding foreign governmental influence and access to critical communications infrastructure in the U.S. According to Congresswoman Stefanik's press release:

[T]his bill would provide critical telecommunications transparency by requiring the Federal Communications Commission (FCC) to publish a list of companies who hold FCC authorizations, licenses, or other grants of authority an[d] ownership by foreign adversarial governments, including China, Russia, Iran, North Korea, Venezuela, and Cuba.

The FACT Act appears to be a common-sense measure that deserves full and fair consideration by Congress.  

Should the FCC Join the Federal eRulemaking Program?

On December 19, 2016, John W. Davis II, the founder and CEO of Notice and Comment Inc., published an article in The Hill proposing an interesting idea for the FCC to join the federal eRulemaking Program. Regulations.gov serves as the government’s public-facing portal where federal agencies issue regulatory notices and accept citizen responses, but unlike most federal agencies, the FCC uses its own system for publishing rulemakings and accepting comments.

Mr. Davis says that the wave of 4 million comments made during the Net Neutrality proceeding showed a clear “need for modernization of the Commission’s processes.” Not only did the FCC’s comment system crash in 2014, but “it ended up taking nine months and an estimated $50 million for the FCC to consider the entire comment dataset.” On the other hand, Mr. Davis endorses the federal eRulemaking Program:

With standardization of data comes a whole new level of immediate transparency in governance, permitting a higher degree of public participation -- and at earlier stages of the process, such as the discovery phase of highly common utility-pole- attachment disputes, which fall under FCC purview. This greater degree of public data accessibility should naturally result in more efficient complaints adjudication.

Given the possibility that the FCC’s Open Internet Order could get repealed by the incoming Commission, Mr. Davis says that the FCC should join the eRulemaking Program as soon as possible. He states:

[I]f net neutrality rules are re-opened for consideration, judging from public response to the last round, the FCC stands to be inundated by many millions of comments. Even if the Commission’s network does not crash again, its staff of lawyers are sure to be occupied for several months manually reviewing and analyzing the tidal wave of data. Meanwhile, businesses will remain in a state of uncertainty about the shape of the future telecom regulatory environment.

The benefits in terms of cost savings, government responsiveness, and public data transparency make the move an obvious choice.

If the FCC were to join the eRulemaking Program, there still would remain many areas of necessary process reform (see here, here, and here). However, the proposal is certainly an interesting one that should garner consideration.

Agreement Reached on Definition of Small ISP

On February 25, 2016, the House Energy and Commerce Committee reached a unanimous agreement on the definition of a small Internet service provider (ISP) within the Small Business Broadband Deployment Act. This bill would exempt small businesses from enhanced transparency requirements imposed in the FCC’s Open Internet Order. The Committee defined a small ISP as 250,000 subscribers or fewer, while the FCC’s Open Internet Order originally had a transparency exemption for ISPs with 100,000 or fewer subscribers or 1,500 or fewer employees. The bill also includes a sunset for the exemption after five years.

Although the Small Business Broadband Deployment Act still needs to pass the full House and Senate before the President signs it, bipartisan support is encouraging. Small businesses often are harmed the most by unnecessary regulations. Because this bill would diminish the regulatory burden of the FCC’s transparency requirements, its passage would be a win for competition and consumers.

By the way, this is the first time that Democrats and Republicans have agreed on any measure to pare back the FCC's over-reaching Open Internet Order. Perhaps this is a good portent!

O'Rielly Asks FCC to Stop Censoring Commissioners

On February 24, 2016, FCC Commissioner Michael O’Rielly published a blog entitled “Stop Unfairly Censoring Commissioners.” Commissioner O’Rielly, who has published many blogs on process reform at the FCC, discusses the need for more transparency within the FCC rulemaking process. He argues that draft items should be released publicly, but at the very least, he says Commissioners and their staffs should be able to discuss items with the public, whether through blogs, tweets, fact sheets, or interviews. Commissioner O’Rielly stresses the importance of transparency and public feedback:

It is common sense that, if the Commission wants the strongest and most defensible items, it needs to talk to the outside world, including interested and affected parties.  This simple principle is embodied in the Administrative Procedure Act notice and comment rulemaking process.  Similarly, Commissioners also need the opportunity to discuss ideas, problems, and alternative ways to do things than the prescribed proposal contained in any draft item.  As it stands now, it is immensely frustrating to sit in ex parte meetings and be unable to test out other concepts and options or correct any misunderstandings of those in attendance.  But if we were to have such conversations today, my fellow Commissioners and I would risk potentially violating the Commission’s disclosure rule by revealing nonpublic information about items.  The end result is weaker Commission items.

Commissioner O’Rielly was the keynote speaker at the Free State Foundation’s July 2015 lunch seminar on FCC process reform, which can be viewed here. Free State Foundation President Randolph May has testified three times in front of the House Subcommittee on Communications and Technology regarding the need for process reform at the FCC (May 2015, July 2013, and June 2011). Mr. May also released two blogs in the summer of 2015 on this important topic, “Why Process Matters” and “Why Process Matters – Part II.”

Commissioner O’Rielly has been a strong leader on process reform at the FCC and we hope he continues his fight for more transparency and accountability at the Commission.

Model Transparency Act Should Point the Way for Maryland

The American Legislative Exchange Council (ALEC), a free market-oriented member organization of state legislators, recently adopted new model legislation that sets some baseline government transparency standards. Maryland should consider either adopting ALEC's Transparency and Government Accountability Act or measuring its current open public records practices against ALEC's model and making changes to state law to bring greater governmental transparency.

The focus of ALEC's Transparency and Government Accountability Act is on having state governments make more records available to citizens online in a free and accessible format. Although states have their own Public Records or Freedom of Information Acts (FOIA) – such as Maryland's Public Information Act – those statutes essentially place the burden on citizens to make requests for records and pay appropriate fees in order to obtain access to public information.

And records requests sometimes encounter government officials' stonewalling that includes state-claimed exemptions or privileges from disclosure that ultimately require repeated requests or even litigation to resolve. When states require public disclosure of information as their default practice they provide citizens with easier access records from the outset. This reduces the frequency of citizens having to request records, and also reduces the administrative costs of government in responding to individual requests.

The Sunshine Standard, a website providing tools for improving government transparency, has made the model legislation available at its website. In particular, the ALEC model requires states to maintain an official, searchable website using a consistent domain that makes available a variety of information, including: open public meetings laws, schedules, and agendas; budget information, including spending and revenue information and state payments, elected official and administrative official information; state ethics laws and ethics commission process and enforcement information; state auditing information; government contracting and procurement information; lobbying registration and state agency lobbying contractual information; and state FOIA information.

Maryland transparency laws already make a lot of this information available. For instance, the Maryland Attorney General's office has a page dedicated to the Open Meetings Act, providing access to the laws, information about the Open Meeting Law Compliance Board, and an Open Meetings Act Manual. Likewise, the Maryland Department of Budget and Management provides access to considerable state budget information as well as government contracting and procurement information. And Maryland's Office of Legislative Audits provides information online. For instance, the website of the Maryland's State Ethics Commission is not especially user- or information-friendly, with a confusing advisory opinions section. What's more, whereas the ALEC model calls for information to be posted online about the status of investigations and enforcement actions, Maryland law requires that such investigations and enforcements be strictly confidential until final orders are issued. So no status updates can be found on the State Ethics Commission's site. In any event, Maryland does not currently make the information it already provides available at or linked from a consistent website domain as called for in the ALEC Model.

What's more, providing search indexes could also allow citizens to better analyze disclosed data. Insights can often be drawn from cross-referencing existing records, in particular. For example, a searchable site could provide an easy way to gain information about how much money a government contractor donated to the campaign of an elected official. Consideration of the ALEC model should also prompt states such as Maryland to consider not only making additional information more easily obtainable but also to revising their agency practices to become more transparent and open.

Of course, any comprehensive approach to government transparency should also include local governments. Citizens have often encountered enormous obstacles to obtaining access to government information at the local level. (See, for instance, this Washington Post op-ed from earlier this year, "Maryland's Fake Open Government.") Since counties, cities, and other governmental subdivisions are routinely delegated taxing, condemning, zoning and other regulatory powers, those local governments should adhere to standards of transparency too. States seeking to revamp and expand government transparency in light of ALEC's model should at the very least also consider applying it to local governments where relevant and where possible.

Transparency and open government should be an easy issue for bi-partisan and cross-ideological agreement. ALEC's Transparency and Government Accountability Act provides an excellent framework for states to consider. Maryland citizens could stand to benefit from a re-examination of their state's transparency laws and practices in light of the new ALEC model legislation.