FCC Should Be More Open, Barton and Scholars Say

Other federal agencies typically withhold copies of rules until approved, but not to the extent that the FCC does, we found in a survey of other federal commissions. State and local rules on openness vary widely. Under Barton’s draft, the FCC would have to publish a proposed rule and give the public at least 60 days to comment on and reply to comments and commissioners 30 more days to weigh the record before voting on it. The agency would have to publish final rules within 30 days of adoption.

The FCC record is spotty on releasing final rules soon after meetings at which they're adopted. The commission often is quick to turn around an order, but also has been known to spend months doing so. That occurred with a decision and rulemaking notice on rules to promote diversity in broadcast ownership adopted Dec. 18 but held until March 5. The agency still hasn’t published a report on competition in the video industry and a related notice of inquiry (CD June 19 p3), voted on in November.

Other federal commissions vary in their timeliness and their openness. The Federal Trade Commission, for instance, doesn’t vote on rulemakings at meetings. Instead, it meets in closed session on cases, handling rulemakings through the Federal Register and notational voting, the formal term for what the FCC calls voting on circulation, an FTC spokesman said.

The Federal Energy Regulatory Commission typically is very quick to publish the text of rules once they've been adopted at a meeting, a spokeswoman said. Last quarter, FERC published all items within five business days of adoption at open meetings, she said. “A chunk of those are issued within 30 minutes.” But documents up for adoption aren’t available for public inspection before the meetings at which they're acted on. The Securities and Exchange Commission usually does a quick turnaround, a spokesman said. But “sometimes because of problems of one sort or another, it might take weeks” not days, he said.

At the FCC, delays between adoption and release of an item have lengthened during the Bush administration, said a communications lawyer. Most observers we talked to traced the slowdown to a 2003 FCC unbundling order whose release was delayed for months, as commissioners revised the approved order, setting a precedent for future orders. “It was somewhat common practice for a long time to allow editorial privileges,” the lawyer said. “Like many things under the Bush administration, the exception becomes the rule, so that very few or no controversial items are finished at the time they are decided.”

Delays can trouble companies affected by new rules, the lawyer said. “If the order changes things to the worse, but doesn’t take effect until it’s released and published in the Federal Register… Bad news can wait,” the lawyer said. “But if there’s a rule that’s going to be helpful… you do want to know what the rules are so you can plan accordingly. We are hurt when good news or non-punitive stuff comes out” late.

Sometimes releases lag while commissioners draft long statements to appear with the official declaration, an FCC spokeswoman said: “That is a major reason.” Industry officials lamented the frequency with which statement drafting delays orders. “They're over there issuing press releases,” said Ken Robinson, a communications lawyer and former FCC staffer. Commissioner Robert McDowell “seems to be the only one over there aware of the fact that this is a quasi-judicial agency,” Robinson said.

The FCC recently affirmed its policy of writing rules after it votes to adopt them, in an order denying a Freedom of Information Act request by the Associated Press. An AP reporter sought a copy of the rules for the 700 MHz auction that the commission adopted at its July 31, 2007, meeting. The agency released the rules 10 days after adopting them. “When the commission votes to adopt an item at an open meeting, the Commission’s deliberations concerning the item are not at an end,” the FCC said in denying the request in June 2008.

“It doesn’t surprise me that it’s legal, but it doesn’t mean that it’s a good way to make public policy,” said Darrell West, vice president and director of governance studies at the Brookings Institution. “You need a process that’s open and transparent so that everybody can see what’s going on. Otherwise it just breeds cynicism about what happens behind closed doors.”

“It looks like it might skate between the cracks because there’s nothing explicitly in the Act that they have to make the documents they're working with public,” said William Funk, a professor at Lewis & Clark Law School and author of books on administrative law. “But it’s so contrary to the idea of the Government in the Sunshine Act that I wouldn’t be surprised if a court would find mandatory disclosure of documents voted on in a public meeting implied by the law. It is inconceivable that Congress intended that the public attending a required open meeting could be precluded from knowing what the commission was voting on in the meeting.”

The courts, not Congress, probably will be the branch of government that forces the FCC to work more openly, Robinson said. “If you look at their major matters, these people are reversed all the time, and that’s a function of a lack of credibility,” he said. “You don’t see the federal Reserve Board or the Securities and Exchange Commission getting reversed all the time,” he said. For now, the agency’s lack of openness probably is scaring away investors from telecom and media companies, Robinson said. “Investors like everything to be analyzable,” he said. “I think the net affect is [that investors say] ‘See you around, we don’t like your business to begin with.'”

The procedures don’t violate the Sunshine Act, said Gary Edles, a professor of law at American University and co- author of An Interpretive Guide to the Government In the Sunshine Act. “The Sunshine Act clearly has an openness thrust to it,” he said. “But in the early days, and in the first decade after it went into effect, the courts tried to accommodate the openness provisions of the statute with the need for the government to conduct its business in the usual way.” Most agencies strike a balance between the Sunshine Act, with its openness thrust, and FOIA, which authorizes agencies to withhold information on which decisions are based, he said.

The FCC should be a model for other agencies, said Nolan Bowie, a senior fellow at the Kennedy School of Government’s Joan Shorenstein Center on the Press Politics and Public Policy at Harvard. “The FCC has a responsibility to be the government agency with the clearest and best dissemination of public information,” because it regulates electronic communications, he said. “When they make decisions after the fact and hoping the public goes away and doesn’t have a voice, that de-legitimizes the process.”