FCC Should Publish Texts of Orders Before Commissioners Vote, O'Rielly Says
FCC Commissioner Mike O'Rielly Thursday said the FCC should publish the text of proposed orders before they get a vote by commissioners. Writing on the commission’s blog, O'Rielly said more transparency would lead to a fairer, more efficient rulemaking process. Currently, the FCC releases the texts of orders only after they're approved, in some cases months later. Industry officials said the proposal is likely to prove controversial.
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"As with any written document, the more reviews a regulatory item receives before going out the door, the better,” O'Rielly wrote (http://fcc.us/1sBxQJk). “Empowering the public with the actual text could push the agency to ask better questions (including on the costs and benefits of proposed rules), fine tune its wording to prevent unintended consequences, and obtain useful suggestions before the final rules are locked in."
Former FCC Commissioner Michael Copps said in an interview Thursday he has always supported procedural reforms at the agency but O'Rielly’s proposal would not top his list of needed changes. Publishing the text could complicate negotiations among the commissioners, he said. “There are many times technical changes need to be made” to orders “to incorporate what commissioners have agreed upon,” Copps said. “These can be sometimes very painstaking.” Copps works as a special adviser to Common Cause’s Media and Democracy Reform Initiative.
Under the FCC’s current rules, commissioners and staff can only “hint” about what is in an item, said Andrew Schwartzman, senior counselor at Georgetown Law’s Institute for Public Representation. “Outsiders have to guess what they are hinting about.” Schwartzman said this gives big trade associations and companies a real advantage. “I expect that there will be a lot of resistance from within the commission, because of a fear that it will intensify the lobbying,” he said. “Opponents will probably overlook the fact that communications with outside parties will be much more narrowly focused if proposed orders are published, and that this will eliminate the need for many meetings and communications."
O'Rielly’s proposal is in keeping with reform proposals offered by House Republicans in the House Commerce Committee’s two process reform bills, said Randolph May, president of the Free State Foundation. “At the very least, the draft items should be posted at the time the Sunshine Act notice goes out,” the week before the meeting, he said. Publishing the order before the meeting would give the public “a better idea as to whether changes made post-meeting under ‘editorial privileges’ are really merely ‘editorial,” he said.
"It’s hard to oppose government transparency and efforts to make sure that the public has more notice of agency decisions,” said Free Press Policy Director Matt Wood. Public Knowledge Senior Staff Attorney John Bergmayer said the proposal makes sense, but would probably have to be part of a basket of other FCC process reforms.
The proposed reform makes sense since it’s hard for members of the public to weigh in on the rule being voted on when they can’t see the text, said a former FCC spectrum official. “All that being said, it is highly unlikely to happen because commissioners are often sensitive about having the public know what their specific edits were to the text, and if it’s published upon circulation, the public can see the changes made by the commissioners,” the lawyer said.