Pai Proposes Streamlined Review Processes, Sunshine Act Reforms

When facing a deadline for applications for review of bureau action, the commission could institute something akin to the U.S. Supreme Court’s certioriari process -- an idea Pai said was given to him by communications lawyer Andy Schwartzman. “Under this proposal, if none of the Commissioners requests full consideration of an application for review within a certain period of time -- say, 90 days -- then the Bureau’s decision would be automatically affirmed and the Commission would adopt the Bureau’s reasoning as its own,” Pai said. “This process would let the FCC dispose of pleadings that lack merit more efficiently. It also would allow an aggrieved party to seek redress in court rather than being held in purgatory for years on the eighth floor."

Pai called for expanding the categories of small transactions that qualify for streamlined treatment, such as mergers of geographically adjacent rural telcos. He also proposed circulating draft orders addressing forbearance petitions at least four weeks before the one-year statutory deadline, and then require a vote of the full commission to extend that deadline. The FCC should codify the 180-day shot clock the commission uses for transactional review in its rules; institute a nine-month deadline to act on petitions for reconsideration and applications for review; and establish a six-month deadline for acting on waiver requests, he said. “We need to start taking deadlines more seriously.” The Wireline Bureau extends the one-year forbearance petition deadline “about as often as Taylor Swift switches boyfriends,” Pai said.

An “FCC Dashboard” on the commission’s website that tracks its performance on key metrics like waiver requests, license renewal applications and consumer complaints could let everyone see “if we are headed in the right direction,” Pai said. “If we make it easier for others to hold us accountable for our performance, I'm confident that we would act with more dispatch.” He said he'd check such a dashboard regularly. The FCC Collaboration Act (http://xrl.us/boe9ef) introduced earlier this month would modify rules forbidding more than two FCC members from talking to each other outside of an official public meeting (CD Feb 7 p12). Some are skeptical of the need for such reform, including First Amendment lawyer Kevin Goldberg of Fletcher Heald, who wrote an entry on the broadcast law firm’s blog last week blasting such efforts (http://bit.ly/YFdwGQ).

Congress needs to modify the Sunshine Act to allow more collaborative and efficient commission decision-making, Pai said. “If the purpose of the Sunshine Act was to bring our deliberations out into the open, it hasn’t worked,” he said. “This is obvious to anyone who has ever watched an FCC open meeting.” Pai quoted a recent tweet directed at him that likened the commission’s open meetings to “free Ambien without the weird sleepwalking."

Updating the Sunshine Act would enable commissioners to “more directly and thoroughly understand where each commissioner was coming from,” Pai told us. “Having that face-to-face discussion often can be very helpful in reaching a consensus, when the alternative is having ... staff exchanging proposals over email and then reporting back. I think having the direct clash of views can often be more fruitful.”