FCC Commissioners take agency to task for opacity around rulemaking

Today, Federal Communications Commission​ Commissioner Ajit Pai​ released a statement & fact sheet on the non-public FCC’s proposal for Open Internet Rules, which would be applied to regulating broadband Internet service providers. He tweeted out a picture of himself holding the document (above) several days ago. In his statement today, Pai said that the American people are being misled about what’s in the rules and broke out an outline of the 300-page document. Reporting and analysis of Pai’s objections to the proposal may be found at the New York Times and National Journal. Subsequent to Pai’s statement and press conference, FCC Special Counsel for External Affairs Gigi Sohn tweeted out a series of rebuttals, including a clarification regarding the size of the document.

Here, I’ll focus on something else: the commissioner took FCC Chairman Tom Wheeler​ to task for not releasing them ahead of the scheduled vote on February 26th, in DC, although Pai did note that doing so would be “unprecedented.” In fact, FCC commissioner Mike O’Rielly tweeted much the same thing, stating that “all FCC meeting items should be made public when circulated to Commissioners. ”

O’Rielly published a blog post on advanced posting of Commission items back in January, following a previous post in August 2014.

In August, I wrote a blog post urging the Commission to post on its website the actual text of the items to be considered at our Open Meetings at the same time they are provided to Commissioners. I made the suggestion because the inability of the public to obtain a complete picture of what is in a pending notice of proposed rulemaking or order routinely leads to confusion over what exactly is at stake. Making matters worse, Commissioners are not allowed to reveal the substantive details to outside parties. We can’t even correct inaccurate impressions that stakeholders may have received, and we are barred from discussing what changes we are seeking. This barrier to a fulsome exchange can be extremely frustrating for all involved. Despite positive feedback from people at the FCC, outside parties, Members of Congress, [1] and the general public, four months later, we have yet to post a single meeting item in advance. Moreover, the lack of full disclosure and transparency has continued to be a problem as some parties have not been fully briefed on recent items, such as the recently adopted 911 Reliability NPRM, while others are not briefed at all. The reason that nothing has happened, I am told, is that there are two basic concerns with the proposal: 1) that it could be harder to comply with the Administrative Procedure Act (APA); and 2) that it could be more difficult to withhold documents under the Freedom of Information Act (FOIA). I do not find either argument persuasive or insurmountable

Wheeler took a question on this issue in a press conference last month: “The precedent here, through Democratic chairmen and Republican chairmen, has always been that just like, you know, in the court system, and elsewhere that when you’re handling cases like this, you have an internal discussion and then you release what the result of that vote is. And you don’t change that decades of precedent overnight without following the procedures to review questions like that.”

Asked for comment, FCC press secretary Kim Hart Jonson​ said that “Chairman Wheeler circulated his proposal to his fellow Commissioners three weeks before the planned vote in accordance with long-standing FCC process. We are confident the other Commissioners will give the proposal an exhaustive review. The Chairman looks forward to receiving their input and releasing it to the public after the February 26 vote.”

What this boils down to is that publishing proposed rules before a vote is technically legal but has never been done before. As Pai himself noted, “FCC rules prohibit disclosure of nonpublic information except as authorized by the Chairman.” Then-FCC chairman Julius Genachowski didn’t pull the full version of the 2010 Open Internet rules up until right before Christmas, well after the vote. The standard FCC procedure for rulemaking is to circulate the draft rules at least 3 weeks prior to a vote, incorporate edits received from FCC commissioners, then finalize everything. In practice, however, some commissioners have complained that edits may be made right up until a vote. Once rules have been voted upon, they’re published in the federal register.

As long-time readers know, I was critical of that decision at the time, and remain so. To reiterate what I said them, Genachowski made a commitment to a more open, transparent and data-driven F.C.C. under President Obama’s Open Government Directive. In many respects, in its first year of open government, the agency made commendable progress, with strides towards taking public comment through e-rulemaking at OpenInternet.gov, Broadband.gov and Reboot.FCC.gov. The sites were deployed by an able new media team that has used online communications in unprecedented ways. The chairman and his managing director, Steven Van Roeckel, both deserved credit for their plans to reboot FCC.gov as a platform for government including the use of APIs and open source technologies like Drupal.

When it comes to the question of whether the public could see the proposed Open Internet rules before the commissioners vote upon it, the agency fell short of its transparency pledge. I have not found a legal precedent that explicitly gives the agency authority to keep the text of a proposed rule secret until it is voted upon by the Commission. While it is true that the FCC does not appear to be under no legal obligation to do so, given that the members of the commission presumably had to negotiate on the details of the final rules for vote, the decision not to share a version publicly may have made such discussion more flexible.

The choice not to post the proposed rules online before the most reced vote is an example of the same level of government transparency in the creation of important regulation as before, not more. It’s possible that the legal context for how the FCC operates might change in the future, if a bill by Senator Dean Heller (R-NV) were to be passed. Per his office, the FCC Reform Act would:

“provide more opportunities for the public to see pending FCC action by publishing the exact rule or amendment to a rule for at least 21 days and by allowing any Commissioner to ask for a vote on any order issued by a bureau. *Enhance consistency and transparency in the Commission’s operations by requiring the FCC to establish procedures for handling extensive new data submitted towards the end of a comment period, adequate review and deliberation regarding pending orders, providing the status of open rulemaking proceedings, minimum public review periods for statistical reports and ex parte communications. *Empower the Commission to operate more efficiently through reform of the “sunshine” rules, allowing a bipartisan majority of Commissioners to meet for collaborative discussions subject to transparency safeguards.

A provision that the FCC must “identify a market failure, consumer harm, or regulatory barrier to investment before adopting economically significant rules,” however, may well mean that Democrats in the Senate won’t support its advance. As always with these net neutrality stories, to be continued.

UPDATE: Commissioner Pai tweeted another picture of a revised plan February 21, including his intention to vote against it and again noting that the public cannot see it before the vote. In the tweet, he says the plan is now 317 pages, which means it has been trimmed by 15 pages.

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