FCC Faces Criticism for Practices Some Say Limit Agency Transparency

Under Title 5 of the U.S. Code, enabled by the 1946 Administrative Procedure Act (APA), federal agencies are required to "separately state and currently publish in the Federal Register for the guidance of the public" certain information, including "substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency" and "each amendment, revision, or repeal." Current code offers no definitive time frame by which agencies must publish items in the Federal Register. Though agencies are subject to APA and other laws for internal processes, they have a lot of leeway in how they proceed, said Cary Coglianese, University of Pennsylvania Law School professor and director of the Penn Program on Regulation. Agencies are able to "fill in the gaps" as they see fit, he said.

At the FCC, once an order is adopted through a vote and the text finalized, "the staff typically goes through a process of slimming it down" to prepare it for publication in the Federal Register -- a process the commission said it attempts to complete "fairly quickly" but is dependent on the complexity of the item. "Only [the information] required for the Federal Register is included," an FCC official speaking on behalf of Chairman Tom Wheeler's office told us. After the item is slimmed down, it's reformatted -- including double-spacing and other formatting changes -- to comply with the Federal Register's document requirements. The commission's review process also requires legal review of the document and the document summary, plus technical edits such as fixing typographical errors.

Delays of a few days accrued during the Federal Register's processing of FCC submissions don't appear to account for the bulk of the time between the commission's release of rule-making items and their appearance in the repository, Communications Daily's research and database found. The Federal Register "attempts to publish [documents] within three days of receipt," first in what is called public document inspection and then a day later in the publication itself, Jim Hemphill, special assistant to the Federal Register director, told us. "Basically, but not always, what is included in public inspection is tomorrow's Register."

The FCC has seen matters take longer than three days before publication from the time of submission to the Federal Register, said an FCC official speaking on behalf of the Wheeler's office. Ex-Commissioner Mike Copps agreed. "My impression is that a lot of items have sat more than three to four days before they were published," said Copps, now at Common Cause. The average time for publication, from when an item is sent by the FCC to the federal repository until it appears in the daily Federal Register, is typically four to five days, the commission official said.

The average delay from FCC release to publication in the Federal Register of most rules and items this year with commission release dates made available is more than five weeks, our research found. Hemphill said the Federal Register "purely deals with the forms as they are received" and has "no power over when documents are submitted." Hemphill also said his office has no oversight over other agencies, and any sort of rules about the timeliness of postings "are determined by the agencies themselves."

Transparency Concerns

Administrative experts and government transparency advocates have raised concerns about another common FCC practice -- withholding the exact text of items voted on before the release of a final order, and utilizing "editorial privileges" to privately make changes to orders after they're adopted and before they're released. This is a practice that is unique to the FCC, said Scott Wallsten, Technology Policy Institute vice president-research, who authored a TPI report on what he called the commission's abuse of editorial privilege.

"Other agencies don't do" this, Wallsten said in an interview. "There is no way to know if what finally appears [upon agency release] is what they originally voted on, and that does differ from other agencies. You do generally know what it is when they vote on [items] at other agencies." According to Wallsten, this commission practice became prevalent in the 1970s, and resulted in long delays between the FCC's adoption of an order and its release of that order. The length of an order isn't correlated with the length of the delay of its release, "suggesting that it is not simple copy editing that is responsible for the delay between vote and [agency] publication," Wallsten said in a February report. "There is no way to know if there is ever any funny business going on," he told us. "It's just not supposed to be that way."

Free State Foundation President Randolph May has witnessed similar delays. "If it takes more than a couple of days after a sunshine meeting to release an order, which it has, that would lead one to conclude that it's more likely the exercise of editorial privilege is being exercised," he said. Named after the 1976 Government in the ​Sunshine Act, sunshine meetings are public meetings at the FCC, such as those each month when commissioners vote on items. "If what transpires through the exercise of editorial privileges is just grammar and [syntax] errors" and doesn't alter the meaning, "most people would probably say that's OK," May said. While some administrative experts say the delay between the adoption of an order and its release has gotten somewhat better, May said he has seen the time increase during the three decades he has been participating in FCC proceedings. "It now takes longer than it used to," he said. "I don't know the reason for that."

O'Rielly Concerns

O'Rielly has long advocated for FCC process reform and has made several suggestions he said could begin to fix certain commission issues. They include that the commission make the text of proposed orders publicly available the same day they are circulated to the offices of the commissioners. "A number of areas" need improvement, he said.

O'Rielly said the editorial privileges exercised by the commission aren't outlined in rules and he has seen its adverse effects firsthand. "Editorial privileges are not contained [in the rules] in any capacity, so that's my fundamental problem," he said. "We're giving authority that doesn't really exist." Even assuming there is the authority, O'Rielly continued, "the problem is that it's not just about making technical and grammatical fixes to an item. It's actually including whole new paragraphs, new content, new decisions, [and] it's also rebutting commissioner decisions."

"During the editorial privileges process, I'm equally offended they add new stuff that was not considered before us, so we vote on something and then the document changes," O'Rielly said, adding that rebuttals, or "cheap shots," by the majority have been also added into documents after a final vote. "I find it not to be a very fruitful process," he said. Instead of changing the documents after votes have been cast, O'Rielly suggests the commission "put [its] best foot forward" and finalize the text of items prior to open meetings. After receiving documents on proposed rules 21 days before a meeting, O'Rielly said he reviews the items and sends his concerns and proposals to the offices of the other commissioners. "They know my concerns early on, so they should be able to address anything in that time period before we get to the meeting," he said. "They seem to be kind of wait and see and 'we'll do it after the fact.' But I'm voting on what's before me, not some document down the road."

Wheeler recently established a FCC Process Review Task Force, on which one member from the staff of each commissioner will get together to discuss various process changes and how they might best be implemented. O'Rielly said the outcome of the task force depends on how committed people are to getting a resolution. He said not all of his colleagues might agree with his approaches to reform, and some may not want any changes. "I would like to see us make a number of changes and make this task force effective," O'Rielly said. "I'm not expecting it to change the balance of power."

As for how the issue of editorial privilege and the commissions' administrative practices, which some say are ethically questionable, should be addressed, May said that it "probably will require an act of Congress." Wallsten agreed. Congress has held hearings in the past on FCC process reform and O'Rielly said they are currently working on legislation to address the issue. "I leave it in their capable hands [as to] when and where it can move," he said. However, Coglianese suggested a different course of action is needed: "It's up to the commissioners to enact change."