NARUC Panelists Urge Greater FCC Transparency, Process Reforms

“From the outside looking in, the FCC is sometimes very much a black box,” said Patrick Pearlman, a consumer advocate with the West Virginia Public Service Commission. He suggested creating a consumer advocate position within the FCC to ensure consumer voices are heard. Others called for more public hearings and meetings. It’s good for the public to see commissioners in person, said Thomas Navin, former chief of the Wireline Bureau. FCC officials should travel “out of the beltway” often, agreed former Commissioner Deborah Tate. And the agency should encourage staff to participate at conferences and other meetings around the country, said Brian Fontes, CEO of the National Emergency Number Association.

The FCC should also seek to improve communication within the agency, panelists said. Every commissioner should be as informed as the chairman, said Fontes. To improve interaction between commissioners and bureaus, the FCC should consider moving bureau chiefs to the eighth floor, said Navin. Meanwhile, relying more on advisory committees, administrative law judges and federal-state joint boards would improve FCC speed and efficiency, some said. The FCC has made little use of judges in recent years, Tate said. “I never even actually met an ALJ at the FCC.”

Panelists debated the need for bureau reorganization. FCC structure is “desperately in need of reform,” said Navin. Dividing bureaus by technology makes little sense in a converged marketplace where multiple technologies offer the same services, he said. He recommended a new bureau lineup divided into five areas: broadband, video and content, spectrum-based services, emergency and public safety, and global communications. But others were less keen on a restructuring. The way Congress wrote the Communications Act makes it tough for the FCC to restructure, noted Tate. A reorganization could drain vital FCC resources, cautioned Brian Tramont, former chief of staff to FCC Chairman Michael Powell. The commission should focus on building a solid, forward-looking strategy, he said.

The FCC should rethink the way it conducts rulemakings, panelists said. For one thing, the FCC should actually propose rules when it issues notices of proposed rulemaking, said Pearlman. Navin agreed: “Before the agency moves to rules, there should be some notice of what those rules are going to entail.” Tate defended the FCC, noting that starting with questions can help to establish what solutions exist and whether the regulator has power to act. Wanting more detail is understandable, but the FCC shouldn’t be forced to publish the entire text of rules in advance, said Randolph May of the Free State Foundation. Requiring that level of detail could slow rulemakings, especially because any FCC revision to proposed rules likely would require a fresh public notice, he said.

The FCC should revamp its ex parte process to prevent abuse, several panelists said. One major problem is late- filed evidence influencing FCC decisions, Navin said. He urged the FCC to issue a public notice if it intends to rely on evidence sent late in a proceeding, Navin said. Tate agreed, saying “one of the most difficult situations” she faced as a commissioner was being forced to vote on last- minute changes to draft orders. Tate arrived at many FCC meetings late because she “wanted to read the red-line version” before voting, she said.

The FCC can get bogged down by a never-ending influx of ex parte filings, some panelists said. To fix the issue, May suggested establishing a limit on the number of ex parte filings each party can file. The agency could permit only three ex partes per party, for example, unless the party asked for leave to file important new information, he said.

Panelists also complained about the level of detail provided in some ex partes. “More and more ex partes present less and less information” about meetings with the FCC, said Pearlman. Ex parte quality might be improved if FCC staff wrote up the meeting summaries instead of requiring outside parties to do so, Tramont said. However, that could be a drain on FCC resources, he said. Reform may not be needed, he added, because if the ex parte neglects to mention something said in the meeting, that information won’t be in the public record and can’t be used by the FCC. -- Adam Bender

NARUC Notebook…

An FCC overhaul and wider deployment of broadband led a list of resolutions adopted at the NARUC winter meeting in Washington, D.C. NARUC’s board approved the resolutions as the meeting was ending Wednesday. Prime among them was a call to revamp how the FCC runs. “The status quo under the past several administrations” illustrates the need, the NARUC said, offering to help in a “comprehensive review of the FCC and its procedures.” The NARUC asked the FCC and the NTIA to set up a way to help broadcasters facing trouble with DTV signal strength. The group asked the FCC to create a three- year pilot effort, using the Lifeline and Link-Up programs, to expand access among Americans with low incomes to broadband services and devices. It also urged states to carry out the Broadband Data Collection Act to sharpen understanding of service and service gaps in a technology- neutral way.