O'Rielly Offers Guarded Outlook on Prospects for Process Reform at FCC
FCC Commissioner Mike O’Rielly said he's skeptical about a new task force on FCC process reform, announced by the agency last week, speaking Tuesday at a Free State Foundation lunch. Unlike most staff task forces, this one includes representatives of all five commissioners' offices, according to an FCC blog post.
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“While it is somewhat early to provide a report card, it appears that there are differing interpretations of that mission, combined with selective backtracking by some from the task force’s purposes,” O’Rielly said. “If the five offices cannot agree on what it is to do, I am fairly certain that its ultimate ability to produce any tangible result will be in serious jeopardy.” Without consensus, the group could prove a “mere diversion, or worse, a time suck,” O’Rielly said. The FCC later released a copy of the speech.
O’Rielly also offered a few new proposals for reform, suggesting the FCC be required to focus more on the statutory basis of the items it approves. “The commission provides little to no justification for the use of various statutory provisions in items,” he said. “Instead, it commonly adds sections 1, 2, 4(i) and 303(r) as a laundry list of authority to most items. I suggest that the commission should be obligated to justify why and how each statutory provision is used in an item.”
The FCC also should give some consideration to a rule that's in place at the FTC under which if three commission members vote in the affirmative they can bar staff from working on a particular subject, O’Rielly said. The FCC also should require that rules adopted at a monthly meeting be published the same day.
O’Rielly said his calls for reform are not focused on chipping away the chairman's authority. “When I speak of process reform, I mean exposing the weaknesses and correcting the flaws in the mechanisms for decision-making at the commissioner or eighth-floor level,” he said. “I do not intend to suggest that all wisdom and power comes from the eighth floor, but only that it has more bearing on the benefits of reform.”
“I applaud the fact the chairman started this task force,” said a former FCC chairman, Richard Wiley of Wiley Rein, who spoke on a panel at the luncheon following O'Rielly's speech: “I think we have to give it an opportunity.” There have been lots of suggestions made for reform, he said: “I just think we have to watch what the result is. I’m going to give it a fair chance.”
Wiley said that as chairman he spent a lot of time out of his office and made it a priority that other commissioners were fully informed on issues before the agency. He noted he had to deal with six other commissioners as chairman. “I tried to get to know them as individuals,” he said. “We frequently had lunch together” and there were “rotating dinners at commissioners’ homes,” he said. But Washington was different then and less political, he said: “I don’t think it’s possible for any of us up here [on the panel] to judge what’s going on inside the current FCC.” Wiley said he knows and respects the current commissioners. “Guess what?” he said. “I actually think they would like each other if they got to know each other.”
Boston College law professor Daniel Lyons said most of the reforms put forward under current FCC Chairman Tom Wheeler have been “sub-eighth floor.” The reforms are “good, but they’re not reforms aimed at the fundamental ways in which the FCC is making decisions,” he said. Process reform can mean different things, Lyons said.