A simple path forward for FCC transparency

Last summer, Senate Commerce Committee Chairman John Thune (R-S.D.) criticized outgoing FCC Chair Tom Wheeler for a lack of transparency about Commission proceedings.

In particular, Thune complained that Wheeler had exempted himself from the agency’s own rule regarding the disclosure of nonpublic information, a tactic he had used both to shape public debate and silence Republican members of the Commission.  The Chairman, Thune said, was once again “utilizing questionable legal authority, while simultaneously trying to dodge public accountability.”

{mosads}Reaction followed a predictable partisan formula.  Republicans largely agreed with the critique; Democrats largely disagreed.

The Republican leadership remains particularly agitated about the 2015 Open Internet proceeding, which evolved substantially after the public comment period closed. What began as a relatively straight-forward response to the D.C. Circuit’s “roadmap” for re-enacting Net Neutrality rules became a complicated final order that “reclassified” broadband. The public didn’t have much sense of what was actually in the 400-page final document until after the controversial vote was taken.

But transparency issues neither begin nor end with Chairman Wheeler. A similar breakdown in communications occurred under Republican tenure, for example, in a 2003 vote to revise the rules under which incumbent telephone companies were required to unbundle and resell access to their facilities.

Partisan sniping aside, leadership of the agency is poised to change hands this month. So now seems the right time to consider how the FCC could conduct its business more effectively.

Congress has already wrestled with this question repeatedly over the last several years.  But while FCC process reform bills have moved forward, sometimes with bi-partisan and even unanimous support, legislation has yet to pass. 

That’s unfortunate. The bills under consideration contain many common-sense improvements, including establishing minimum comment periods and reining in the unhelpful practice of dumping thousands of pages into the record just before a vote.

But on the critical problem of getting relevant information before the public on a timely basis, the legislation punts. The most recent bill passed by the House, for example, simply orders the Commission to “establish procedures for ensuring that all Commissioners have adequate time, prior to being required to decide a petition, complaint, application, rulemaking, or other proceeding” to review the relevant material.

While Congress continues to pursue legislation, we think there’s direct action the next Chairman can take on day one that would immediately improve the quality of public debate on pending agency action. And that is to hold a second monthly meeting, during which FCC staff gives presentations on major items that might be brought before the Commission at least 60 days before any vote.

This second, forward-looking monthly meeting would provide the public–the real party of interest—the information needed to provide meaningful input to the Commission prior to its decision-making. It would also improve the Commissioners’ own ability to respond to policy recommendations on an informed basis.

Today, the only formal public discussion of issues before the Commission is backwards looking, occurring after the real debate. The Commission holds one monthly public meeting, during which Commissioners hear short staff presentations on each item scheduled for a vote, and then give long speeches on why they are or are not voting for it (alas, the days of Commissioner Quello simply saying “good item; let’s vote it” are long gone).  After the meeting, there is a press conference (or competing press conferences).

Such public meetings are important for the public to understand what happened. But they are irrelevant to meaningful public discussion of what should happen.

At the second monthly meeting we envision, the staff would give briefings on items at least 60 days before any vote. The presentation would not include staff recommendations but would instead offer a statement of the problem the Commission is trying to address, the factual environment in which the Commission will deliberate, and various high-level alternatives the Commission could pursue. Commissioners would be free to ask questions of the staff. But they would not be allowed to make speeches.

The 2010 National Broadband Plan project team used this approach to great effect. It made public presentations every month leading up to delivery of the Plan so that everyone would have a clear idea of what the team was thinking. The Commission and the public had plenty of time to correct misunderstanding of the facts, assumptions, and options.

In September 2009, for example, the team forced Commissioners to sit through a four-hour presentation, with 168 slides detailing the state of broadband in America. Everyone was invited to correct any errors. The presentation, which challenged a number of assertions that Commissioners on both sides of the aisle had been making, opened the door for significant public and industry input that improved the Plan considerably.

Holding that kind of meeting on a regular basis would force the Chair to be more transparent both about what proceedings are likely to be brought up in the next few months and about the direction of those proceedings. It would also force the other Commissioners to be transparent to staff and the public about their concerns and objections.

But the most important transparency served by a second monthly meeting would be transparency about facts. Congress itself followed a similar approach in completing the bi-partisan 1996 Telecommunications Act. And while the political environment in Washington today might today make such reasoned lawmaking near impossible, in our experience clarity at the beginning of a process about the problem statement and the facts makes a workable solution much more likely. A forward-looking public meeting would at least kick off the debate on the right foot.

As we read the governing law, the Chairman already has the authority to call such a meeting and compel the staff to attend. The other Commissioners would not be required to participate, of course, but would have every incentive to do so.

More substantive and specific reforms may yet come from Congress.  But this one simple change would greatly reduce the controversy and rancor that has increasingly characterized FCC proceedings, and restore its once-prized and well-earned reputation as a true expert agency.

Blair Levin is a nonresident senior fellow at The Brookings Institution; in 2009, he oversaw development of the National Broadband Plan.  Larry Downes is project director at the Georgetown Center for Business and Public Policy and co-author of “Big Bang Disruption: Strategy in the Age of Devastating Innovation” (Portfolio 2014).

The views expressed by authors are their own and not the views of The Hill.