This Thursday, the Federal Communications Commission (FCC) will hold its February Open Meeting, setting off the usual buzz in Telecom Policy Land and prompting every one else to ask “what is an FCC Open Meeting and why does anyone care?”
The FCC does not work like a standard federal agency, where the head of the agency gets to make the decision. The FCC is an “independent agency,” with 5 members (no more than 3 from the same political party) appointed by the President and confirmed by the Senate. By law, the Commission must meet at least once each calendar month to consider business and vote on items.
How Something Gets To Be An Official Action of the FCC.
For an item to be an actual, real “agency action” entitled to deference when reviewed by a federal court, a majority of Commissioners must vote publicly to approve the item. Critically, the Chairman of the FCC cannot make decisions on what to do on his own. (On one memorable occasion, the FCC Chairman lost a vote by 4-1.) The law requires the Chairman to allow Commissioners who dissent to give a dissenting opinion. Also by law, the meeting must be open to the public.
The Chairman has the power to set the agenda, but he still needs a majority vote to pass an item. But those looking for negotiation around the language will be disappointed. The negotiations all take place before the meeting. By the time we get to the meeting, everyone knows how it comes out. The open meeting vote is primarily the chance for the Chair to showcase the item, and Commissioners to make public statements on why they do or don’t support it or what they would have done differently.
Not everything the FCC does happens at an open meeting. Commissioners often vote on non-controversial items electronically (a process called voting an item “on circulation”). Bureaus and offices can approve routine matters on “delegated authority” (things the FCC says in its rules the relevant office or bureau can decide). These have the force of law unless appealed to the full Commission and reversed.
That means the items on the agenda of the Open Meeting are the ones the Chair feels are important enough to showcase publicly, or that are sufficiently controversial that at least one Commissioner does not want to vote the item on circulation. This makes open meetings something of a big deal in Telecom land. Putting an item on the agenda of the open meeting is one of the way the Chairman signals “Pay attention people! This is something I think is important.”
Finally, not everything that happens at a meeting is a Commission Order or needs a vote. Sometimes the Chairman will have staff provide an update on an important proceeding so the public can know where things stand and Commissioners can make public statements about where they want things to go and what they want to see happen. As with the official orders, putting an update report item on the agenda for an open meeting means the Chairman wants to underscore what’s going on as really important.
So What’s Up For The Meeting Thursday January 30?
The upcoming meeting has two items of long interest to Public Knowledge: an Order on the transition of the phone system to new Internet-based technologies, and an update on the 600 MHz “Incentive Auction.”
The Transition Of The Phone System Item
Leading the agenda, the FCC will issue its first real full Commission action on the transition of the phone system. The FCC will adopt a set of principles to provide a framework for the transition – something we’ve pushed the FCC to do for almost exactly a full year.
Also as part of the item, the FCC will outline the process for AT&T (or any other carrier) to apply to conduct technical trials that will inform the transition. They contentious issue that may split the FCC along party lines is whether participation in a technical trial should be mandatory for all consumers and businesses in the selected geographic area, or whether participation in technical trials will require consumers and businesses to consent to participate. PK has pushed very hard that “consumers are not guinea pigs” and participation should be voluntary. At last report, Republican Commissioners disagree and want to require all businesses and consumers in the test area to participate.
[UPDATE: At the last minute, Republicans decided to vote for the Order and it was approved 5-0. It is good to see the entire Commission get behind the right principles at the start. You can see PK's press release here.]
The item was written before the network neutrality decision. So even though the network neutrality decision will have a big impact on the transition overall, I don’t expect any of the Commissioners to talk about it at this meeting. But they might.
The 600 MHz Incentive Auction
On the wireless side, the FCC will hear an update on the insanely complicated first-time-ever-in-the-world effort to construct an “Incentive Auction” where broadcasters sell back their broadcast licenses so we can sell the reclaimed wireless capacity (“spectrum”) back to cell phone companies like Verizon.
The FCC won’t make any decisions, but it will hopefully enlighten everyone about the staff recommendations on critical issues. For us at PK, that means:
- Do we have enough space left for a robust, unlicensed TV white spaces.
- Will the FCC adopt a “No Piggies Rule” that ensures that all carriers, not just Verizon and AT&T, get enough spectrum to meet their future need?
The update will signal the invitation to all interested parties to lobby the FCC intensely over the next few months on the critical points. So while not an official Commission decision, it will attract a lot of attention.
[UPDATE: Unfortunately, the update turned out to be all about the timeline for making decisions and no new details on substantive issues were provided.]