FCC Connect America Fund Order Stuck Inside FCC, as Commissioners Debate Edits
An April 23 FCC-approved item making much-anticipated changes to the Connect America Fund (CAF) remains stuck inside the commission and has yet to be released. FCC officials tell us that commissioners approved the order six weeks ago, but they're still fighting over edits. The order was approved over a partial dissent by Commissioner Ajit Pai and partial concurrence by Commissioner Mike O'Rielly. The order does away with the much-criticized quantile regression analysis formula and makes other tweaks to the 2011 CAF order, which was aimed at part on refocusing USF on broadband deployment (CD April 24 p2).
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USTelecom Senior Vice President Jonathan Banks said getting the item out is important for both price-cap and rate-of-return carriers. The reforms the item starts “are important to get out in public and then implement,” he said Friday. “The sooner we can start implementing them the better."
Other industry officials said the text of orders seem to be taking longer for the FCC to get out the door in recent months. The delay is far from a record, an FCC official said, noting that the triennial review order on unbundled network elements was adopted Feb. 20, 2003, under former Chairman Michael Powell, but not released until Aug. 21, 2003.
The FCC in general has gotten faster rather than slower in releasing big orders, said Andrew Schwartzman of the Institute for Public Representation at Georgetown University Law Center. “This commission is taking on a lot of big items at a rapid pace, so I am not concerned about the fact that it is taking somewhat longer for the orders to be issued,” he said.
NAB Executive Vice President Rick Kaplan, an aide to former Chairman Julius Genachowski, said Genachowski had always made early release of orders a priority. Genachowski “was rightly sensitive to a major criticism leveled at the prior chairman for long delays between votes and the public having access to what was actually determined,” Kaplan said. “One thing that helped a great deal in this effort was Chairman Genachowski’s willingness to engage with all of the other offices up front, therefore avoiding major last-minute revisions and related delays before the public had a window into the commission’s decisions.”
"The collegiality on the eighth floor is not at its best these days, so even smaller details have the potential to get magnified as problems and that is slowing down some work,” said a former FCC official. Work on the CAF order had in part gotten stuck behind the FCC’s push to get out the net neutrality NPRM at the May 15 open meeting, said a former FCC official. “Why it’s taking so long after the net neutrality order I have no idea,” he said.
TechFreedom President Berin Szoka quoted House minority leader Nancy Pelosi, D-Calif. “We have to pass the bill so that you can find out what is in it.” “At the FCC, it’s more like: ‘We have to pass the order so we can decide what’s in it,'” Szoka said. Too many FCC chairmen have viewed other commissioners “as annoyances whose involvement should be minimized as much as possible rather than co-equal partners in the rulemaking process,” he said. “This tendency becomes most visible when the partisanship at the agency increases.” Federal commissions “rely on collegiality to function effectively,” Szoka said.
The delays may raises questions about the way “editorial privileges” are “sometimes used to change the meaning of an order after the vote at the public meeting,” said Free State Foundation President Randolph May. That raises questions about compliance with the open meeting requirement of the Sunshine Act, he said.
"I think internal disagreements probably say more about the institutional design of the eighth floor than the individuals who work there,” said Information Technology and Innovation Foundation telecom policy analyst Doug Brake. A former FCC official with mostly wireless clients said such delays inevitably make the FCC look bad. “Clients call looking for answers and I have to explain -- multiple times -- that the commission hasn’t released the text,” the lawyer said. “They chalk it up to ‘dysfunctional Washington.'”