McDowell, Genachowski Exchange Letters on FCC Reform

Genachowski is still reviewing many issues that awaited FCC action when he got to the commission and is still putting together his teams in most of the offices and bureaus, agency officials said Tuesday. Many key positions have yet to be filled. While Genachowski appointed Ruth Milkman as Wireless Bureau chief last week, she has yet to assume those duties. Jamie Barnett, the retired rear admiral named to head the Public Safety Bureau, has only been at the commission since Monday. Genachowski may not be prepared to signal his stance on various key orders for another month and not until after the various bureau chiefs have a chance to meet with interested parties, agency officials said.

Genachowski has been asking meeting seekers to fill in the form since the first day he became chairman. The questionnaire speaks to Genachowski’s desire to develop policy based on the advice of the various bureaus and offices, agency and industry officials said Tuesday. It asks for two to three paragraphs explaining “the precise issue” to be raised in a meeting with the chairman’s office, noting answers should be submitted by e-mail. The questionnaire also asks for electronic copies of ex parte letters or handouts recently used in other, related commission meetings. It also requests meeting seekers to identify pending proceedings related to the meeting, asking them to “please confirm” they've notified participants in restricted proceedings if the matters will be discussed. The document also asks whether any participants will be registered lobbyists if Recovery Act “funding or policy issues” will be raised.

Parties should submit a “brief statement” on whether they've met with a bureau on the issue at hand, the form said. “It is the general expectation that parties will meet with the relevant Bureau and/or Office staff in advance of meeting with the Chairman’s office.” That will prevent end- runs around bureaus, which “happens on occasion,” said Media Access Project President Andrew Schwartzman.

The questionnaire marks the first time in recent memory any FCC member has requested such disclosures before meetings, said communications lawyers. Veteran broadcast attorney Vincent Curtis said he'd never been asked to complete such a document, noting a partner at his firm was asked to fill one out before discussing an issue by phone with a Genachowski aide. None of the five commissioners during Chairman Kevin Martin’s tenure used such a document, said Schwartzman. But previous commissioners have, he said. “I recall filling out similar types of questionnaires” but “it hasn’t been in recent years.”

“I think it’s a good idea” as long as all seeking meetings must complete the form, and it will help Genachowski aides prepare for the gatherings, Curtis said. “It gets them to get the right people in place: If you ask a broadcast question, you want a broadcast person there. If you ask a wireless question, then they will have a wireless person there.” He hopes responses to questionnaires will be made available publicly and online, perhaps on Genachowski’s FCC Web page. Schwartzman noted that responses to the questionnaires could be obtained by anyone who files a Freedom of Information Act request for them. An FCC spokeswoman declined to comment on the questionnaires.

It appears the FCC will require parties seeking to set up meetings “to submit a significant amount of information in advance,” said Thomas Jones, an attorney for competitive local exchange carriers. Jones hasn’t had a meeting under the new process, but said required information includes “the subject to the meeting, the relevant dockets, copies of prior filings in the relevant docket by the party seeking the meeting and a list of FCC officials with whom the party has met regarding the issue in the past.”

McDowell Asks for Reform

The latest McDowell letter, meanwhile, raises many of the same issues he discussed at an Federal Communications Bar Association luncheon in February and in a January letter to then-acting Chairman Michael Copps. McDowell sent the Genachowski the latest letter on Monday, after discussing the issue with him last week. Staffers for McDowell and Genachowski have also been in discussion over possible reform efforts, agency officials said Tuesday.

“As you and I have already discussed, these thoughts are intended as a starting point for a more public discussion that should examine a larger constellation of ideas for moving forward together to improve the public’s ability to participate on our work, as well as our overall decision-making abilities,” the letter said. “Many of these ideas have been discussed by many people for a long period of time, and if we don’t care who gets the credit we can accomplish a great deal.”

McDowell suggests a “thorough operational, financial and ethics audit” of the commission and related entities, including the Universal Service Administration Co. and the National Exchange Carrier Association. “I would envision this audit as an examination akin to a due diligence review of a company as part of a proposed merger or acquisition, or after a change in top management,” McDowell wrote. “This undertaking would be a meaningful first step on the road to improving the agency.” McDowell said the FCC should also examine its own contracting process as well as processes for the collection of administrative and regulatory fees.

“In the same vein, it is time to examine the Commission’s assessment of fees,” he wrote. “As Mike [Copps] has also noted, our methodology for collecting these fees may be imperfect. At first blush, it appears we may have over-collected for each of the last two years.” He said the FCC should also work with Congress to examine Section 8 of the Communications Act and the FCC’s duty to collect fees. “I am hopeful that we will examine why we continue to levy a tax of sorts of allegedly $25 million or so per year on industry, after the Commission has fully funded its operations through regulatory fees. … Our regulatees pass along those costs to consumers and they are the ones who ultimately pay higher prices for telecommunications services.”

McDowell specifically called for an audit of the Universal Service Fund. “You may know that the Commission’s Inspector General reported last year that the estimated erroneous payment rate for the High Cost program between July 2006 and June 2007 was 23.3 percent. … While I am pleased that the OIG identified this error, it is time we get to the bottom of this matter and remedy it.” Any ethics probe must also make sure that all protocols and rules have been followed. “Faith in the ethics of government officials has, in some cases, eroded over the years and we should make sure that we are doing all that we can to maintain the public’s trust.”

Genachowski’s reply letter thanked McDowell for raising the concerns. “I believe that FCC reform is a matter of great urgency,” he wrote. “One of my first acts as Chairman was to announce the appointment of Mary Beth Richards as Special Counsel for FCC Reform, to ensure high-level attention to this vitally important issue. I have also tasked the agency’s General Counsel and Managing Director … to work with Ms. Richards to perform a thorough review of the FCC’s existing processes and to make recommendations for improvement and reform.”

Genachowski also said the commission is opening an internal Web site, which will later become publicly accessible, to solicit reform ideas from every FCC employee. “The ongoing review processes described … will provide a framework for institutionalizing the values of openness, participation, fairness, efficiency and accountability that I know you, Commissioner Copps, and I all share,” he wrote.