Packed FCC Meeting Agenda Adds to Pai's Record Pace, Drawing Praise, Concerning Some

That agenda "is impressive," said ex-Chairman Richard Wiley of Wiley Rein: "It shows a very active chairman and commission." Ex-Chairman Reed Hundt said that Pai is "very efficient and effective with his agenda." The increase in agenda items is due to "increased productivity under Mr. Pai’s leadership," emailed Tech Knowledge Director Fred Campbell. He cited Pai's "management capabilities and superlative staff," decade of FCC experience and other factors.

Chairmen force votes with agenda items, which tend to be higher profile than most items adopted on circulation. Consultant Harold Furchtgott-Roth, an ex-commissioner, said Pai could be following the "common practice" of trying to persuade colleagues "to vote some of the items" before the meeting. He said chairmen "should place a great many items on the public meeting agenda" to comply with a statutory mandate "to expedite the prompt and orderly conduct" of much business within three to six months.

Pai is trying to offset "anti-consumer" and "anti-competitive" actions with other items, said Harold Feld, Public Knowledge senior vice president. He said Pai Thursday "plans to roll back wireless aggregation limits and reduce the protections for consumers as part of the tech transition" while circulating "an order that would provide rather limited new protections against slamming and cramming." That "allows Pai to claim this is a pro-consumer agenda when (a) the FCC is once again refusing to extend the slamming and cramming rules to VOIP or mobile providers ... and (b) actually reducing consumer protections for the phaseout of legacy phone service," Feld said.

"I wouldn't read too much hidden meanings into the length or nature of the June agenda," emailed Morgan Lewis attorney Andy Lipman. "You have multiple items from multiple Bureaus that have percolated up at the same time. Many of these matters appear non-partisan or bi-partisan."

Criticism

Some see a darker agenda. "The Pai Packing strategy, while wrapped in the rhetoric of doing business expeditiously, is troubling," emailed Common Cause special adviser Michael Copps, another ex-commissioner. "Last November, for example, his ridiculously jam-packed agenda wiped out multiple public interest media protections built through the years, the idea being, I suppose, to have just one public outcry instead of several. June looks wild and wooly, too, and the Wireline Infrastructure item is not only unwise, but looks like it was crafted in a big rush."

Chairmen have many reasons for busy agendas, including to "flood the zone" and make opposition harder, said Feld: Pai "could make much more use of the circulation process to bring meetings down to a more manageable level if he was interested in real" commissioner input and public feedback.

It's a combination of things, said Mozilla fellow Gigi Sohn. Items are "ready to go," Pai has concerns about circulation items not being voted on, and he's trying to overload critics, said the ex-aide to prior Chairman Tom Wheeler. “Early on, we wanted to do the same thing. We called it our Normandy strategy: go bombs away and flood the zone with as many high-profile things as possible, and make our adversaries make a choice about which ones to shoot at."

Pai "wants to accomplish a lot," emailed Angie Kronenberg, Incompas general counsel. "I wouldn’t chalk it up to flooding the zone. Hopefully he’s worked out most issues with the other Commissioners before he puts them on the floor. He has given some of the offices managing responsibilities for some of the dockets -- which is very generous and builds good will."

The pace is a "byproduct of coming in as a sitting commissioner who knew where the bodies were buried," said Sohn. Ex-Commissioner Kathleen Abernathy, now at Wilkinson Barker, agreed: “When you’ve been a commissioner before becoming chairman, you know how things work and how to move proceedings forward. You can be incredibly efficient." Pai "is wise to move quickly," said Blair Levin, Brookings Institution fellow who was Hundt's chief of staff. "A new administration has its biggest political capital in the first two years."

High Statistics

Pai is averaging 7.1 regular agenda items per month, according to our review of an FCC database, dating to 1999.

William Kennard averaged 4.5 for 1999-2001 (he became chairman in 1997), Kevin Martin 3.8 (2005-2009), Michael Powell 3.7 (2001-2005), Wheeler 3.3 (2013-2017) and Julius Genachowski 2.6 (2009-2013); and five-month acting Chairs Mignon Clyburn 3.2 (2013) and Copps 1.6 (2009). Martin and Powell were commissioners and Kennard was general counsel before becoming chairmen, and Genachowski was a Hundt aide a decade earlier. Wheeler also scheduled 136 "consent agenda" items, generally lower-profile matters such as broadcast licensing, Freedom of Information Act requests, and certain enforcement decisions not presented individually; Pai has done 17, Powell two.

"I’m not really into box scores," Wheeler emailed us. "As someone once said, “It’s not just about being busy -- the ants are busy -- it’s what you’re busy about.'” Other ex-chairmen didn't comment.

Thursday's 12 agenda items are the most since Martin's 17 in September 2008, though many of the latter look similar to later consent-agenda items. The vast majority of items over the years were adopted at meetings, with some withdrawn and either adopted on circulation or not. (We counted combo items such as an order/NPRM as one, and didn't count non-voted staff presentations.)

"Much needs to be done to modernize the Commission’s rules and that the FCC’s monthly meetings are an important vehicle for getting this work done," emailed a spokesman, noting Pai also is "proud to highlight" monthly "the terrific work" of "talented staff." Pai "has received positive feedback from his colleagues about the increase in meeting items under his tenure and anticipates that the Commission will continue having busy meeting agendas."

Fans, Too

The jam-packed approach has fans.

"We don’t have any concern with the pace," emailed an aide to Commissioner Mike O'Rielly: "We do not feel limited in any way to review and act on the items." The offices of Commissioners Brendan Carr and Jessica Rosenworcel didn't comment. Departing Commissioner Clyburn isn't voting on meeting items.

It’s hard to criticize "for being too productive, especially when several of the items relate specifically to advancing broadband deployment,” said Randolph May, Free State Foundation president. He noted the agency has been criticized previously "for not being productive enough and letting items languish.”

“Kudos" to Pai and the FCC "for trying to accelerate the agency to something even approaching the speed of disruptive technological change in the industries it regulates,” said Larry Downes, senior fellow at the Georgetown Center for Business and Public Policy. TechFreedom President Berin Szoka said Pai's FCC is doing more items at the commission level previously delegated to staff. "From his perspective, I would say he has significantly more than eight years of mess to clean up," Szoka said.

“Obviously, you’d like to have more time to look at things," said Sohn, but "I give [Pai] credit, he actually wants to show the government is working, and while I might not like what he’s doing, his job is to get decisions made in due time." She cautioned that “rushing" things through "without proper notice and comment" or commissioner review would be of concern and grounds for legal challenge.

“There is always some tension between avoiding rushing so fast that mistakes are made ... versus moving so slowly that the FCC is always behind the current state of technology,” said Peter Tannenwald, Fletcher Heald media lawyer. By assigning other commissioners to oversee some issues, Pai may “help ensure that changes are thought through in sufficient depth before they are adopted,” Tannenwald said. Smaller players could have trouble being heard “if they don’t have the resources to make presentations on an overwhelming number of items, while large corporate interests have the resources to deploy full-time lobbying staffs," he noted. "Policymakers [could be] unduly influenced by one set of voices."

“They are moving the ball and keeping the trains moving,” said Phoenix Center President Lawrence Spiwak. All the items may not make it to the meeting, he said. “The commission is really getting out a lot of nuts and bolts work.”