Views of Process Reforms Differ After Wheeler Announces Task Force

Former Chairman Reed Hundt worried making drafts of items public would undermine confidential negotiations among commissioners. “If you make a draft public, it makes it hard to change your mind,” Hundt said. “It’s very, very important for FCC commissioners and their staffs to be able to work together in a confidential way,” he said.

Hundt worried as well that making the drafts public would move the agency toward working like “that terrible institution called Congress.” A draft “isn’t supposed to be for public debate and lobbying,” he said. The commission already “has become more and more the subject of public partisanship. To rage in tweet storms is completely inappropriate,” Hundt said, referring to a growing practice in which commission staff have made critical comments against others at the commission on Twitter. Supreme Court justices writing an order engage in “reasoned deliberations in search of a compromise,” he said.

Former Commissioner Michael Copps said making drafts public may not necessarily tell the public what will be voted upon at meetings, saying, “I’m all for transparency, but negotiations over items often go down to the wire.” In some cases, negotiations have continued for several hours after the scheduled start of a meeting. Wheeler’s release of a fact sheet before the commission vote on the net neutrality order “was helpful” in ensuring the public would not be surprised by what was voted on, Copps said.

If draft orders are to be made public, Congress should change the Administrative Procedure Act for all agencies, said Public Knowledge Vice President-Government Affairs Chris Lewis. “Otherwise it looks like you’re picking on one agency for an order they didn’t like,” he said, referring to rumblings by congressional Republicans to make the change after the net neutrality order. A change would also raise the question of “when does the notice and comment period end. How many edits are required before you’re allowed to have a public vote?”

Wheeler on Thursday praised O’Reilly for “raising some really good questions about long-standing processes” and said he will appoint agency special counsel Diane Cornell to review the procedures of all similarly situated independent agencies. The agency had no additional details Friday.

O’Rielly and Commissioner Ajit Pai had pushed for the draft net neutrality order to be made public. O’Rielly also pushed for drafts to be made public, writing in blog posts in August (see 1408080031) and in January (see 1408080031). The agency has objected to making the drafts public, he said in the January post, because it could be harder to comply with the Administrative Procedure Act and withhold documents under the Freedom of Information Act. He disagreed with both rationales.

O’Rielly’s office didn’t comment Friday, but in a statement Thursday praised Wheeler’s effort, saying the commission “could greatly benefit from key reforms enhancing transparency and accountability.” But O’Rielly said the benchmark shouldn’t be “what other agencies happen to be doing,” and the FCC “will surely be able to set a good government model other agencies can emulate.”

Former Republican Commissioner Robert McDowell, now of Wiley Rein, praised O’Rielly for suggesting “a cornucopia of constructive ideas to reform the agency’s process," citing in an email “conducting cost-benefit analyses and bona fide, peer-reviewed market studies before proposing new rules; sunsetting every rule adopted; and establishing a rebuttable presumption in favor of forbearance from every rule emanating from Title II” of the Communications Act.

McDowell said “making the agency more transparent and accountable would also be a worthy goal. Of course, people's views of what is appropriate reform sometimes changes, depending on who's in the minority, but many reform ideas are bipartisan.” One such reform is amending the Sunshine Act to allow more than two commissioners to be together at the same time, an idea Copps also backed Friday.

The change would “expedite business at the agency, and lead to more collegiality” by commissioners by “getting people together and talking as human beings and getting different sets of skills together in an item,” he said. Copps, upon joining the commission, said he was surprised those dissenting in a vote aren't allowed to approve bureaus’ editorial changes. O’Rielly, as recently as Thursday’s Free State Foundation policy forum (see 1503190049), objected to substantive changes made during the process. He said that in Congress, editorial changes are restrained largely to copy editing. Copps said some changes need to be made after votes, and he didn't object to them as long as they were in keeping with what commissioners had voted on.

"Commissioner O'Rielly is on to something in focusing on the practice of granting 'editorial privileges,' which have come to mean the privilege to revise an item in substantive ways that vary the meaning of the circulated draft,” Free State President Randolph May emailed. Another priority for reform, he wrote, ”is clarifying and limiting the extent that the staff can act for the Commission on 'delegated authority.' This process should not be used to bypass the commissioners on items that are important or raise novel questions."