State Regulator Cawley Blasts FCC Rulemaking Procedures, Lack of State Collaboration
NARUC will tackle spectrum sharing, emergency communications coordination and the FCC’s “repeated abuses of informal rulemaking,” according to draft resolutions released this week (http://xrl.us/bob6pm). State regulators will consider the resolutions at their winter meeting in Washington in February. The proposed resolutions delve into past controversial territory, such as addressing FCC referral to the Federal-State Joint Boards on Separations and Universal Service. USTelecom objected to joint board referral provisions at the past two NARUC meetings, in Baltimore in November (CD Nov 14 p5) and Portland, Ore., last July (CD July 25 p8), although both of the resolutions passed.
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"I've taught federal administrative law for many years,” Commissioner Jim Cawley of the Pennsylvania Utility Commission told us. “I know how it was supposed to work.”
That Joint Board provision comes in a draft resolution from Cawley, which stretches 10 pages, including footnotes. It asks Congress to “cure” the FCC and industry abuses, strongly advocates for a stronger state role, and slams FCC action. The FCC “usurped the States’ intrastate access charge ratemaking role” with the Connect America Fund, one clause said. Other clauses criticized the FCC’s ex parte contacts process and “backdoor” rulemaking and its “lack of accountability.” Congress should amend the 1934 Communications Act to “restrict oral communications from outside the agency of significant information or argument respecting the merits of proposed rules, made to agency personnel participating in the decision or proposed rule,” his proposal said. It calls instead for written responses to notices of inquiry and notices of proposed rulemaking, all posted online, and preventing responses filed late “except for good cause shown.” Cawley criticized the FCC for not meeting directly with state regulators, calling it “not a good situation.”
FCC procedures are “pretty flabbergasting” from a legal perspective, said Oregon Public Utilities Commission Chair Susan Ackerman, saying officials in the states could never get away with them. The proposal also would prevent federal regulatory officials from working for entities subject to that regulation for a year after leaving the commission and prevent FCC commissioners from “appearing before or advocating to” the FCC for three years after leaving. Cawley worries that “the whole process is perverted” and privileges the strongest economic players, he said: “We are getting away from the basis for any regulation at all ... Concentrated capital tends to abuse economic power. Even if you have competition, you still need a referee.” USTelecom and the FCC declined comment on Cawley’s proposal.
Congress should look to “strengthening” the Joint Boards “in order to enhance dual sovereignty and state input into the FCC decision making process to counteract the adverse effects of unfair ex parte communications in informal rulemaking,” Cawley’s document said. That means requiring “mandatory referrals” for any recommendation that would substantially affect services supported by federal USF dollars and nullifying any rule that the FCC failed to refer to the Joint Boards, according to the draft text. This draft resolution emanated from the state members of the USF Joint Board, he said, citing an earlier long version of a brief the 10th U.S. Circuit Court of Appeals rejected (CD Dec 3 p15) due to its length late last year: “I took what the court wouldn’t accept and I put it in a resolution.”
The other resolutions are far shorter. One resolution put forward by D.C. Public Service Commission Chairman Betty Ann Kane seeks to “promote co-existence in the 902-928 MHz Spectrum Band.” It asks the FCC to not worry about a petition from Progeny for permanent operating authority in the 902-928 MHz band until after the FCC has gone through Part 90 rulemaking in WT docket 06-49, which would potentially establish stricter power limits for M-LMS licensees, the resolution said. The state regulators would, if the resolution passed, be expressing “concern that FCC approval of Progeny’s petition for permanent authority to operate its M-LMS system in the 902-928 MHz band may cause harmful and unacceptable interference with utility ratepayer-funded communications devices for AMI, smart grid systems, and monitoring and control systems and other critical infrastructure.” It wants more field tests with AMI and smart grid stakeholders.
Commissioner Maureen Harris of the New York State Public Service Commission focused on sharing outage information in her proposed resolution, submitted less than three months after Superstorm Sandy devastated her state and other regions along the East Coast. This resolution would resolve to “if necessary mandate” the sharing of outage information as restoration efforts proceed after natural disasters. The draft points to electric utilities’ difficulties in finding outages and the use of smart meters and cable boxes in tracking problem areas. Cellphone outage information would also be critical, the text said. It credited the FCC Public Safety Bureau’s derecho report, released in January, for revealing “considerable flaws in the resiliency planning and implementation of the primary 9-1-1 network providers in the affected region which also contributed to widespread network outages.”