Experts Review Reform and Standards at the FCC

WASHINGTON, March 8, 2010 – Panelists from the Federal Communications Commission, Capitol Hill, public interest groups and the private sector addressed issues of FCC reform and regulatory responsibility at “An FCC for the Internet Age: Reform and Standard-Setting,” a half-day conference sponsored by Public Knowledge, Silicon Flatirons and the Information Technology and Innovation Foundation.

Dale Hatfield from Silicon Flatirons opened up the conference by enforcing the need for an open, transparent process to encourage investment. He said regulatory risk is no good but it is critical to our fundamental belief in government. He added that while it’s important to protect investors, we run the danger of too much or too little regulation with bad effects on both ends.

“We need the right tool to stay closer to the optimum,” he said.

Public Knowledge Director Gigi Sohn moderated the first panel titled “The Present and Future of FCC Reform.”  Sohn said the FCC has been “a little broken” in the past and asked the panelists to focus on agency reform by analyzing what has been done, what needs to be done and whether Congress should step in.

With regards to what reforms have been made, Mary Beth Richards, special counsel on FCC reform, said the agency’s goal is to become a model of excellence in government through openness, transparency, public input and data driven decisions.

She stressed that the FCC has made strides in seven areas beginning with public safety and readiness, data collection analysis and dissemination and system reform (licensing, comment filing and interface commonality).

The agency also has focused on how it communicates within and outside the agency, and Richards said there have been great strides in the areas of social media. Additionally. the FCC has focused on its workforce and organization, rules and procedures and all things financial.

FCC General Counsel Austin Schlick focused on the rules and processes reform and highlighted three changes in that area.

“The over-arching principles are accessibility, transparency and efficiency,” he said. “Sometimes they are complementary and sometimes they are in tension, and it is our job to balance them as best we can.”

Schlick added that the first thing the agency did was to return to the model that the drafters of the Administrative Procedures Act intended, which is to provide the public with draft rules in the FCC’s Notices of Proposed Rulemaking (NPRM) where ever possible.

As a tradeoff, this approach can lead to a loss of efficiency, he said, explaining that the agency will be using more Notice of Inquiries to gather preliminary knowledge to establish the content of draft rules.

The second change is what the agency calls the Procedures NPRM, which seeks to reform the operating procedures and rules of practice.

Schlick said the highlights of the NPRM streamline certain procedures and clear out stale items and backlogs, but perhaps most importantly they press toward a broader use of electronic filing and docketing. A big problem Schlick cited is that a number of large proceedings in the bureaus are undocketed and maintained as adjudications, making it difficult to get the comments filed in those proceedings.

Schlick highlighted a third change – the Ex Parte NPRM. The proceeding revises ex parte rules by proposing to require disclosure of every meeting addressing the merits and a summary of what was discussed in the meeting.  Additionally the NPRM proposes reforms to the Sunshine Act and extends ex parte filing deadlines from one to two days to allow for more substantive filings.

Sohn turned to Matthew Hussey, who is the telecommunications legislative assistant for Sen. Olympia Snowe (R-Maine), to gauge the Hill’s reaction to the changes.

Hussey told other panelists that it seems like Sen. Jay Rockefeller (D-W. Va.), who heads the Committee on Commerce, Science and Transportation, takes FCC reform seriously.

The committee still has concerns about undue influence and the integrity of data collection, he said, later adding that it is important for the FCC to resolve its bottleneck issues because industry cannot wait. Undue delay within industry will erode potential for competition and advanced technological development, he said.

Mark Cooper, the director of research at the Consumer Federation of America, said the essence of democracy is established when the people write the rules that they want to live under.

“Change means changing the rules. Changing rules means having proceedings” and changing proceedings naturally take a long time, he said.

Cooper also took issue with ex parte communications. He believes they “are an affront and insult to democracy and a denial of due process.” Certain parties are naturally much better situated to get those meetings than others. Why does the agency need everything explained to them by an army of lobbyists, he asked rhetorically.  Cooper proposed that the FCC basically abolish ex parte communications.

Nick Johnson, a former FCC commissioner and now a law professor at the University of Iowa’s law school, agreed with Cooper. Johnson said all communications with commissioners should be done in writing and if a meeting is requested, it must occur in front of the full commission and be properly documented.

Susan Crawford, former National Economic Council member and now a law professor at the University of Michigan, said the work of the agency – especially in the area of net neutrality – is particularly exciting.

“When we see something, we make progress,” said Crawford in regards to the Openinternet.gov Web site fully dedicated to that proceeding.

To address Crawford’s concerns about the ex parte procedures, she said having the members of the FCC meet more often as a commission might reduce the dependence on the ex parte system.

Schlick agreed with Crawford that to the extent that ex parte has become a substitute for other fact gathering processes, it is wrong, inefficient and not transparent.

Schlick said he is a fan of the ex parte process because he has a lot of questions that are not normally addressed on the record.

He added that there is a need to lower the barriers of entry for ex parte communications and participation at the commission.

The OpenInternet proceeding took blog postings into the record, which proved controversial. Schlick added that in the ex parte NPRM they asked how they could take a construct that assumes a small professional record and apply it to everyday people on Twitter sending their thoughts to the commission.

Cooper countered: “It is hard to accept the proposition that a two-hour long dinner with the chairman is equal to a blog post.” His proposed compromise involves the use of an independent third party scribe who takes notes on and files the ex parte letter.

Sohn changed course and asked the panelists what they thought about the perceived notion that the agency’s relationship with the White House is a little too cozy. She then asked whether the FCC should be an executive agency rather than an independent agency.

Crawford said there will always be political pressure due to appointments and congressional budget oversight but that overall, the agency does a good job to try to be independent. However, she cautioned that the real pressure on the agency comes from industry, not from politics.

The relationships with the telecom industries is way too centralized, she said, adding that the revolving door at the agency should be fixed.

She said FCC staff should not be able to work for the industry that they are regulating. Crawford ended by referencing an article written by Kevin Murphy of Catholic Law School. Murphy suggests that the FCC’s policy role should be taken away and given back to the administration, leaving it with the sole responsibility of regulating the industry. Crawford suggests that a split between policy and regulation at the FCC is an interesting idea.

Cooper noted that to decrease political influences, commissioners should be appointed to life terms or have set term limits.

The realistic approach would be to limit commissioners to one term limit, he said, adding that the ban on lobbying the commission should be equal to the amount of time served at the agency.

He also said a former FCC employee should not be allowed face-to-face communications with current staff members and commissioners.

Schlick responded by clarifying that all employees are restricted from lobbying the agency on matters they worked on. Senior officials have a one-year ban on lobbying the agency.

Ethics pledge employees such as commissioners and some other senior employees have a two-year ban, he said. If they register as a lobbyist, they cannot work on the same issues they worked on at the commission.

Sohn brought up the Sunshine Act, which has been criticized as an impediment to honest decision-making. She asked whether proposals like the Stupak bill strike balance between transparency and deliberative privilege.

That bill, named after Rep. Bart Stupak (D-Mich.), allows more than two commissioners to meet alone at any time outside of a public meeting. However, the meetings would require a representative from the general counsel’s office as well as a detailed transcription of the meeting.

Johnson said the Stupak bill addresses a serious problem but is troubled by the solution. He wants to see more deliberation between bodies and would like to see the fact-finding process outlined for the public.  He is not persuaded that the language in the Stupak upholds the spirit of the APA.

Cooper wanted to bring the Sunshine discussion to the data discussion. He said that when the FCC commissions a study it should be subject to a formal process of peer review just like stated in the guidelines offered by the Office of Management and Budget. Richards responded by saying that in the data and systems reform area, there are many changes to make data more available to the public.

When asked about the FCC academic studies such as those done by the Berkman Center for Internet and Society at Harvard University, Schlick explained that they receive many of the academic studies as gifts.

When an audience member asked about the loss of engineering talent, Hussey asserted that Sen. Snowe has a strong interest in FCC reform on technology issues.

She has voiced concern about the reduction in engineering staff compared to the increase in complexity of technical issues.  Hussey suggested that at least one commissioner should be an engineer. The senator also has introduced a bill to increase the engineering hires at the commission.

Another audience member asked why the agency does not use video conferencing to stream ex parte meetings.

Richards said it had been considered but the agency is in the process of currently improving its own internal bandwidth.  Crawford saw no difference between a full description of the meetings and streaming the meetings.  Schlick on the other had was firm to defend ex parte “if you stream ex parte then it is not ex parte.”

The final question asked the panelists how the FCC is balancing the effort to increase online comment filing with the notion that so many low-income Americans do not have access to high speed internet.  Schlick responded that the question goes to the heart of the issues and the National Broadband Plan due out this month.