FCC Could Reject Advisory Committee’s LNPA Recommendation, Observers Say
The FCC was set to seek comment late Monday on a federal advisory committee recommendation that Ericsson subsidiary Telcordia, doing business as iconectiv, become the new local number portability administration (LNPA) vendor. The current vendor, Neustar, has waged a monthslong battle against that expected selection, saying the selection process was flawed. Federal agencies typically aren’t bound by advisory committee recommendations, and the FCC has ignored them in the past. Observers on both sides of the aisle say this is the most hotly contested FCC advisory committee recommendation in recent memory.
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Advisory committee recommendations are rarely binding on administrative agencies, said professors in interviews. University of Wisconsin School of Public Affairs professor David Weimer has analyzed advisory committee recommendations to the Food and Drug Administration on drugs and devices. “The fraction of votes for approval influenced the probability and speed of approval,” he said. “The FDA can and sometimes does ignore committee advice.” The only advisory committee Weimer knows of that can make a binding recommendation is the Center for Disease Control’s advisory committee on immunization practices, he said.
The recommendation is hotly contested and important to ensuring the proper role of communications networks, observers said. They're split on whether that importance will make the FCC more or less likely to overrule the NANC recommendation. “The extent of unanimity among the committee members will probably matter to the commission,” but ultimately “the persuasiveness of the recommendation ought to be what matters most,” said Free State Foundation President Randolph May, a member of the Administrative Conference of the U.S. and former chairman of the American Bar Association’s administrative law and regulatory practice section. That the recommendation is controversial will ensure the FCC gives the recommendation very serious consideration, he said.
That the process is strongly contested “makes it more likely the commission will pay less attention to the recommendation,” said Andrew Schwartzman, senior counselor at Georgetown Law’s Institute for Public Representation. The FCC will balance the recommendation against “broader agency priorities and legal requirements,” he said. “It has to worry about litigation, and needs to make the decision that is most likely to hold up in court regardless of what the advisory committee says.”
There hasn’t been a lot of study at the influence of federal advisory committee recommendations outside of the FDA, said Northwestern University professor Megan McHugh. “The agency is not required to take the advice of FACs,” but “hard evidence” on the role of FACs outside the FDA is “non-existent,” she said. McHugh and Weimer expressed surprise that the NANC deliberations were not public, noting the Federal Advisory Committee Act was intended to promote transparency, and exceptions are rare. “It is a little unusual that the process was conducted behind closed doors,” McHugh said.
The North American Numbering Council recommendation is unusual, observers said: FCC advisory committee recommendations are typically much broader, and the agency has broad leeway to act on them, ignore them, or consider them while making their own determinations. The Diversity Committee has issued numerous recommendations that the FCC hasn’t always acted on, Schwartzman said. In this instance, however, NANC is making a specific recommendation about which vendor to select, with an implementation timeline requiring swift action.
"I encourage the FCC to proceed expeditiously with granting final approval,” wrote an aide to NANC Chairwoman Betty Ann Kane, in a confidential email posted to the agency’s electronic comment filing system Friday. We got a copy of the email, which was quickly taken down. Quick approval would “provide ample time” to “negotiate the final terms and conditions in the contract with iconectiv,” the email said. Quick approval would also ensure enough time for “service provider-vendor transition activities” before the current contract expires in June 2015, it said. Iconectiv declined to comment.
A Neustar spokeswoman called Friday’s “mishap” a “significant” one that “underscores the need for care in the LNPA vendor selection process, which Neustar believes has not been fully demonstrated to date.” Neustar expects the FCC to “undertake a thorough process to determine whether the NANC’s recommendation should be accepted and to bring what to date has been a flawed process to a proper, lawful conclusion,” the spokeswoman said. An FCC spokesman told us the agency planned to have released a public notice Monday seeking comment on the NANC recommendation.
"It is all very confusing and there isn’t a lot of guidance from precedent,” said Public Knowledge Senior Vice President Harold Feld. It’s “unclear whether this is a procurement process” covered by the federal acquisition rules, an exercise in FCC policy under Communications Act Section 251(e), “or some sort of hybrid,” Feld said. “If this is being treated as a policy exercise under Section 251(e), then the FCC is not particularly bound by the recommendation of the NANC any more than it is bound by any other advisory committee. If this is being conducted as a federal acquisition, then the FCC is much more bound by its published selection process.” The plain language of Section 251(e) “officially gives the FCC the authority to make this up as they go along,” Feld said.