O'Rielly Pushes for Shortening Must-Vote Process Timeline
"Quirks" in the must-vote deadline process mean items -- even noncontroversial ones -- can sit in limbo for a month or more, Commissioner Mike O'Rielly blogged Tuesday, pushing for changes in the agency's must-vote procedures. He urged replacing the 21-day time frame with a 14-day one, if not shorter, as a means of speeding up the process. Chairman Ajit Pai's office said it's reviewing the suggestion. The offices of minority Commissioners Mignon Clyburn and Jessica Rosenworcel didn't comment.
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There are "numerous reasons" why a commissioner's decision on an item can drag out and trigger the must-vote process, said former Commissioner Kathleen Abernathy, now with Wilkinson Barker. "Sometimes you just have a lot on your plate," she said, saying the process for voting by dates "is a good forcing event." She also said some difficult issues defy satisfactory answers, resulting in a commissioner not wanting to choose either of what seem to be two bad options. And sometimes it's due to a commissioner deliberately stalling, she said. However, she said, "you can't win that game anyway. You can't really stop anything."
Abernathy said she supports O'Rielly's proposal, since companies are better off knowing what the rules are than facing uncertainty. "You can adjust and deal with what you're told," she said. "I would rather have 'no' than 'maybe it's going to change.'"
While items need to be brought to vote "in a more timely and predictable way," that can be difficult given the pace of items going to the commissioners under the Pai FCC, emailed former Commissioner Michael Copps. He said he worries about "further empowering" the chairman and majority at a time when "they are ram-rodding all these dramatic policy changes through with way too much haste." Some circulating items "are totally in the weeds" and understanding the issues can be more time-consuming than dealing with "the 'big ticket' items that make the news," he said.
A commissioner withholding a vote "merely delays the inevitable," former Commissioner Rob McDowell, now with Cooley, said Tuesday. "If an item has three votes -- or a majority -- to approve, it's going to happen." But McDowell said "it's a nice courtesy" to give the minority commissioners additional time "to accomplish whatever they're trying to do." But that time should end "within a reasonable period" once there's a majority vote, he said: "Delays shouldn't be forever."
A must-vote -- which isn't part of law or FCC rules -- comes when an item sent by a bureau or office to the commissioners for disposal on circulation has a quorum and has sat for 21 days, O'Rielly said. For any commissioner who hasn't already voted, the deadline comes 12 business days after the Friday after the must-vote conditions are met, he said. Since the nonvoting commissioner can ask for a week extension, must-vote procedures can total as many as 45 days before an item can be concluded -- not counting additional discretion extensions that come from further discussions or edits, O'Rielly said.
Even a shortened wait period would afford commissioners "plenty of time" to consider and vote on an item, O'Rielly said. He said the current process can result in circulation items taking longer to dispose of than meeting items that "are typically more complex and controversial."
When the FCC had only three commissioners, the Pai FCC shifted controversial items to meetings to avoid the possibility of votes being blocked by the need for three commissioner votes to trigger “must-vote” on an item (see 1703100056).