GAO Tells FCC to Reform Communication, Decision-Making Processes

“We need to codify the not-so-radical notion that the FCC should let the public see proposed rules before it adopts them, and should provide everyone with a realistic amount of time to comment,” said Barton. His bill, HR-2183, would require the FCC to provide 30 days each for comments and replies on the specific language of proposed rules: “Secrecy breeds both inefficiency and distrust, and the FCC has enough of both.”

“The rapid evolution of the telecommunications marketplace requires an agile agency, and reforms initiated by Chairman Genachowski have begun moving the FCC in a positive direction, particularly in the areas of transparency, public participation, and human capital management,” said Rep. Ed Markey, D-Mass., who requested the report in 2008, when Kevin Martin was FCC chairman. “I look forward to continued oversight of the FCC as it responds to the important findings in this report.” House Communications Subcommittee Chairman Rick Boucher, D-Va., also praised Genachowski’s agency review. “I look forward to further reforms at the FCC and urge the Chairman to continue to take steps to ensure that the FCC serves the public interest by being open, transparent and accountable.”

Reforming the FCC “will be a marathon, not a sprint,” said FCC Managing Director Steven VanRoekel in a Dec. 8 response to a draft of the report. “The Commission has jumped off the starting line with strong strides and we will continue at this pace to establish this agency as the model for excellence in government.”

The GAO report should be viewed as a “blueprint for assisting the current FCC in its ongoing reform initiative rather than a criticism of current management,” said Media Access Project President Andrew Schwartzman. He agreed that the FCC’s current ex-parte rules don’t provide sufficient transparency.

GAO said the FCC’s informal system for delegating issues among bureaus is inefficient. “For example, one FCC official told us that while FCC was conducting a merger review of two major media companies, the review process was delayed because of confusion regarding which bureau was responsible,” it said. In other situations, certain bureaus have been locked out of participating in issues like the Universal Service Fund that affect their respective industry. The lack of written policies also allows inter-bureau collaboration and communication to vary from chairman to chairman, GAO said. FCC officials told the GAO that coordination was more limited under Martin because he required staff to seek approval from management before contacting others, GAO said.

The FCC also lacks rules on commissioner access to bureaus, GAO said. For example, the FCC’s agenda handbook requires bureaus and offices to provide commissioners copies of draft items three weeks before commission votes at a public meeting, but provides no insight on whether commissioners may ask staff questions about the items. “The absence of internal policies or statutory requirements has enabled each chairman to define how and when other commissioners receive bureau and office analyses during the decision-making process,” GAO said. That has raised concerns “among FCC officials and external stakeholders regarding the transparency and informed nature of the decision-making process.”

The FCC looks to its offices to tackle some convergence issues, “but the chairman’s influence over these offices raises independence issues that can affect FCC’s ability to rely on them,” GAO said. Commissioners and trade associations raised concerns about the chairman’s influence over the Office of Engineering and Technology, GAO said. Meanwhile, the role of the Office and Strategic Planning and Policy Analysis seems to vary depending on the chairman, it said.

GAO criticized the substance of FCC notices seeking comment on rule changes. “Specifically, FCC rarely includes the text of a proposed rule when issuing a Notice of Proposed Rulemaking to collect public comment on a rule change, although some studies have noted that providing proposed rule text helps focus public input.” GAO also cited concerns that ex-parte rules allow “vague” meeting summaries and last- minute filings “which can limit stakeholders’ ability to determine what information was provided and to rebut or discuss that information.”

The FCC may soon face a dearth of expertise at the agency, GAO said. “A large percentage of FCC’s economists and engineers are eligible to retire in 2011, and FCC faces difficulty recruiting top candidates.” The agency’s Strategic Human Capital Plan should establish targets, strategies for meeting targets, and measures to track progress, it said.

A special counsel on FCC reform is studying how commissioners and staff communicate, VanRoekel said. And the commission’s new portal Reboot.FCC.gov allows staff and citizens to submit ideas for improving the agency, he said. The broadband proceeding has “involved unprecedented cooperation of almost every Bureau and Office in the Commission, sharing expertise and working closely with the core team dedicated to developing the National Broadband Plan,” he added. Genachowski asked the General Counsel in August “to examine whether he should propose to the Commission that we begin a rulemaking proceeding” to address some of the ex parte and public notice issues identified by GAO, VanRoekel said.

VanRoekel disagreed the FCC “has difficulty recruiting top candidates.” He said the agency’s “unique mission” and influence on the communications industry has allowed it to “attract large numbers of highly qualified candidates.” However, VanRoekel agreed the agency’s Strategic Human Capital plan should identify targets, and said the FCC will “revisit these plans and targets” when it issues a new strategic plan in fiscal year 2010.