FCC Reform Moves Forward At Thursday’s MeetingFebruary 9, 2010
Assuming the Federal Government opens for business on Thursday (and I am not taking bets), we can expect to see Federal Communications Commission (FCC) Chairman Julius Genachowski taking another substantial step to make good on his pledge to reform how the FCC does business. The agenda for the Commission's open meeting for Thursday, February 11 lists three items. Two have to do with changing FCC rules to make the agency more open and more streamlined, the third has to do with reforming the E-Rate Program under which schools get money to subsidize broadband.
We can expect that to the extent the press cover this, the focus will go to the E-Rate story. At least people understand about broadband in schools. But for long term difference that matters, the FCC process stories — while phenomenally boring and unsexy — have much broader impact.
The first item is a general “housekeeping” item. The FCC has already made strong improvements on the E-government front. But to the extent things like blog comments are actually part of the record, the FCC needs to issue a public notice on a case-by-case basis. The proposed new rules should standardize and simplify the ways in which the FCC does business to take into account the new technologies, and institutionalize these changes as opposed to operating them on a continuously ad hoc basis.
The second item relates to the system of “ex partes.” Whenever parties discuss matters with FCC staff or Commissioners relevant to a “permit but disclose” proceeding (which covers most rulemakings and major mergers these days), the party that meets with the FCC personnel need to file a written summary of the conversation called a “notice of oral ex parte presentation” or just “ex parte” for short. This rule tends to accumulate lots of “street law” exceptions (e.g., the “trade show” exemption, which holds that somehow any private conversation held at an industry trade show doesn't count). More significantly, the part of the rule that requires parties to disclose what they actually talked about tends to get ignored (you can see my vote for “Worst Ever Ex Parte” here).
For about a year now, the FCC have been looking at how to improve the ex parte process to make it more likely that parties will file meaningful summaries and help reduce the problems with compliance. At the meeting, the FCC will release a proposed set of rules. Of course, like all proposed rules, these will need to go through notice and comment and be adopted as final rules. So parties can still recommend further adjustments or explain why proposed changes may not be a good idea after all, and then parties can explain why the first set of comments are either too ridiculous and burdensome or obvious attempts to preserve the status quo that favors entrenched interests — depending on your preference.
Real FCC reform, like most process reform, is incredibly unsexy and detailed oriented. It is easy to pledge more “openness” and make cosmetic changes. It takes commitment and determination to actually go through the process of changing rules to make things work better for everyone over the long haul. So a tip of the hat to Genachowski and everyone else at the Commission for carrying through on the commitment. Now up to us to do our part and actually participate in the rulemaking process.
About Harold Feld
Harold Feld is Public Knowledge’s Senior Vice President and author of “The Case for the Digital Platform Act,” (Public Knowledge & Roosevelt Institute 2019) a guide on what government can do to preserve competition and empower individual users in the huge swath of our economy now referred to as “Big Tech.” Former FCC Chairman Tom Wheeler described this book as, “[...] a tour de force of the issues raised by the digital economy and internet capitalism.” For more than 20 years, Feld has practiced law at the intersection of technology, broadband, and media policy in both the private sector and in the public interest community. Feld has an undergraduate degree from Princeton University, a law degree from Boston University, and clerked for the D.C. Circuit Court of Appeals. Feld also writes “Tales of the Sausage Factory,” a progressive blog on media and telecom policy. In 2007, Illinois Senator Dick Durbin praised him and his blog for “[doing] a lot of great work helping people understand how FCC decisions affect people and communities on the ground.”