Release of Draft FCC Items Mostly Praised But Also Raising Some Concerns

The agency has been angling toward more transparency for more than a decade. At one point, the FCC didn’t even release a tentative agenda three weeks before the meeting, but that changed under then-Chairman Kevin Martin, who both announced the agenda and started doing news briefings. Under then-Chairman Tom Wheeler, the FCC generally offered fairly complete briefings on major orders and Wheeler discussed them in blog posts. The FCC tested release of draft orders for the February meeting, releasing the texts of two media items but not others (see 1702020060). Wireless officials complained then they would have liked to have seen the order on the Mobility Fund, which still hasn't been made public.

Pai said in a blog post Thursday the early release of draft items is still being tested. “After March 23, I expect that we’ll be in a position to fully evaluate this pilot project and establish permanent procedures for the release of meeting items,” he said. The FCC declined to comment beyond the post.

“It's interesting to see that, after decades of folks calling for more transparency in government, some are questioning it now that we have a chairman who is shining a more public light around the Portals,” said former Commissioner Robert McDowell, now at Cooley. “The adjustment to prepare items to post publicly upon circulation will take some getting used to initially by FCC staff, but this new procedure essentially moves up the timeline for getting work done that would have to be accomplished eventually anyway. Observers should be prepared to see the less artful side of the sausage mill, however. Democracy can be awkward and messy, and that's part of its beauty.”

“The lawyers who lobby a proceeding usually have a good idea of what the order is going to say months in advance, and as the vote approaches, often have the precise details,” said Mitchell Lazarus, longtime wireless lawyer at Fletcher Heald. “For those of us who do this for a living, the early release won’t change much.” That’s not necessarily the case for those not as plugged in on the process, Lazarus said. “That could trigger a more-intense-than-usual last-minute round of last-minute lobbying at the FCC -- herds of middle-aged white guys in suits roaming through the hallways -- which puts a lot of strain on staff resources,” he said. “We see this kind of high-pressure blanket lobbying now for a few major policy proceedings each year. We may see more of it as companies and interest groups react to early releases and try to change them at the last minute.”

Concerns

Danger extends beyond overworked staff, said Free Press Policy Director Matt Wood. “If lobbyists can see the final text on circulation, that informs their advocacy,” Wood said. “There are likely inequities and imbalances built into that: the biggest companies have more lawyers to throw at the agency, and more ability to monitor and review everything.” With reform of the Administrative Procedure Act, the process could be endless, Wood said. “If the FCC gets comment on a so-called final item, as it inevitably will, it must take account of that comment or risk having the action be judged as arbitrary and capricious,” he said. “Where is the circuit breaker for this infinite treadmill? The FCC puts out the item, and it gets further comment and revises the draft in response. Does ‘that’ revised final item have to be published in advance too? Triggering yet another round of lobbying and comments?”

Lawyers who regularly lobby the FCC told us making the details of draft items available earlier in the process favors the opponents of an item, because they have more of an opportunity to attack it. Georgetown Law Institute for Public Representation Senior Counselor Andrew Schwartzman said he’s “open to the experiment,” but thinks it “may make it harder to get things done.” With the text of an item known before it comes out, opponents can shape their arguments more precisely to attack it, said a pay-TV attorney.

The process leading up to the FCC’s stalled set-top box proposal could be seen as a preview of what a long lead time means for a controversial item, some attorneys said. During that proceeding, the long committee process that preceded the item going on circulation provided many clues to the direction the FCC was heading, leading to a long, organized and vociferous opposition campaign. The item was eventually pulled from a meeting agenda and is considered unlikely to resurface (see 1609290076). Since the items so far revealed in the pilot program have been relatively noncontroversial, it’s not yet clear how a lightning rod draft item would fare under the system, several attorneys said.

Free State Foundation President Randolph May, former FCC associate general counsel, said he supports more openness, while acknowledging potential downsides. “There is a need to balance transparency and the value of receiving more informed public input as a result of the public release of the draft texts with potential disruption to the commission’s deliberative process as decision-day nears,” May said. “Earlier this year, I recommended experimenting with this reform for a year or so, and then evaluating the results. I commend Chairman Pai for conducting a trial, and I would suggest he might want to let it run for several months before definitively assessing its impact. This trialing process might be employed with other process reforms as well.”

Most praised actions by Pai to promote transparency. “Amazing process reform at FCC -- full text of 6 proposed decisions plus Summary fact sheets released,” tweeted broadcasting consultant Preston Padden. “Biggest reforms I have seen in 40 yrs.”

Plaudits

Pai deserves whatever accolades he gets, said Fred Campbell, director of Tech Knowledge. “This level of transparency puts additional pressure on the chairman’s office,” he said. Wheeler “liked to talk about his proposals in broad, euphemistic language that papered over their implications. There’s little room for pithy sloganeering when the full text is published in advance. Pai’s commitment to transparency signals his seriousness about FCC reform and shows confidence in his approach to policy.” That items may change after initial release is a “potential result of greater transparency,” Campbell said. “Giving the public an opportunity to examine an order's details before a vote could improve its quality. For example, unclear language that would otherwise be subject to reconsideration could be addressed in advance. This might increase the staff’s workload for a brief period during the run-up to a meeting, but could save effort in the long-run.”

Conceding the new process opens draft items to more attacks, Pillsbury Winthrop communications attorney John Hane said he believes it’s worth it for increased transparency. “More transparency is better,” Hane said. “If there’s cost to it, so be it.” Adonis Hoffman, a former aide to Commissioner Mignon Clyburn who now works as an industry consultant, agreed: “Unless the matter involves sensitive, confidential information, what is wrong with giving the public a peek into the process? Like sausage-making, it may not be pretty, but we can all appreciate the end product.”

Disclosure levels the playing field, said American Cable Association Senior Vice President-Government Affairs Ross Lieberman in a tweet on the pilot program. “Former FCC employees and others w/ close ties to FCC staff no better positioned than Joe Public.” Schwartzman said he’s skeptical the leveling effect is very significant. Large companies with more lobbying resources still enjoy a significant advantage despite everyone knowing the text of items, he said. Hane also said lobbying under the previous system wasn’t that different. Entities that would be strongly affected by a draft item usually knew the direction the FCC was going under the old rules, he said.

Gus Hurwitz, assistant professor of law at the University of Nebraska, said he doesn’t have much concern about overtaxing staff. “The FCC is busy and works on big issues,” he said. “But so do other agencies, and they manage to release drafts prior to votes. There's nothing about the FCC that suggests it shouldn't follow to the same procedures as its peer agencies. If orders require substantial revision in the weeks leading up to the vote, that suggests that they are being brought up for vote prematurely.”

Release of the draft items is a “deliberate and very public effort” by Pai to show he's different from Wheeler, said Francisco Montero, managing partner at Fletcher Heald, which has broadcast and other clients. “I honestly believe that it got very personal between Wheeler and Pai, especially in the final months of 2016,” Montero emailed. “I also believe that when he was a commissioner, Ajit Pai felt repeatedly slighted and disrespected by then-Chairman Wheeler and the two seemed to reciprocate in this tit-for-tat battle.” Before the 2015 vote on net neutrality rules, Pai criticized Wheeler for not releasing his proposal, Montero said. “We saw that theme repeated on several occasions,” he said. “Controlling the agenda and the circulation of item drafts is a significant aspect of the FCC Chairman’s power at the agency. Pai knows what it is like to be on the business-end of that power when it is used against you. I think he wants to send a statement that he will be playing by a different set of rules.”