Martin Doesn’t Vote on Some FCC Items When Circulated

For example, by not voting on one notice that’s still circulating, Martin has been able to prevent changes he doesn’t want made in that notice, the officials said. Martin also may put off a vote for fear that his draft lacks the votes of at least two other members, said commission officials. “He isn’t sure which way it will go when he sends it out,” an official said. In Martin’s first year as chairman, he voted for nearly every item he circulated, two officials said.

Several staffers who worked under Michael Powell couldn’t recall any time during his chairmanship that he put off voting, they said. “Entering his vote was part of the procedure of actually circulating the item,” said an official who served during Powell’s chairmanship, 2001 to 2005.

Martin runs votes as his predecessors did, an agency spokesman said. “The chairman has said in the past he’s willing to put out to the public each commissioner’s vote including his,” on all items on circulation, the spokesman said. “His fellow commissioners have not been willing to do that.”

Chairmen before Powell routinely voted on orders when giving them to other members -- unless items were circulated specifically for a vote at an open meeting, said commissioners who served with them. Some chairmen believed that voting right away on items was the best way to get majority support, a former commissioner said.

Putting off voting lets Martin seek legal guidance on new rulemakings from the Office of General Counsel and quickly make any changes it seeks, FCC staffers said. In another break with pattern, Martin may circulate items without giving copies to the counsel’s office several days beforehand, they said. Perhaps because time is short between a bureau’s delivery of an item to Martin and his circulation of it, he sometimes sends orders to the general counsel’s office when he sends them to the other commissioners, staffers said. Under some chairmen, the counsel’s office would get a draft a week before it was circulated, a veteran FCC official said.

In the past year Martin has not voted immediately on a half-dozen or more items, commission officials estimated. That’s a fraction of the several hundred orders, notices and waivers on which commissioners vote each year. Two rulemaking notices approved by other commissioners but awaiting Martin’s vote deal with digital TV, FCC officials said. One asks whether the commission can impose a so-called quiet period on carriage disputes between broadcasters and pay-TV providers around the time of the DTV transition. The other asks whether all low-power stations should be required to go digital and if some should be able to go to full power and so get guaranteed cable carriage.

Martin has said publicly that he won’t vote for changes proposed by all other members to the low-power notice (CD Oct 16 p4). By withholding his vote in circulating the document, Martin prevented its adoption when other members voted for it electronically last month, FCC officials said. Other members having voted to approve it with the same changes, Martin’s “yes” vote would have been locked in and the item passed 5-0, though he disputed other members’ vote to split off part of the item into a notice of inquiry, they said.

Martin’s practice appears unusual for the head of a federal regulatory agency, administrative law professors said. Yet agency chiefs have no mandate to approve items when they are seeking action by their colleagues, they said. “The circulation of items for seriatim approval by members is common at most multimember agencies” and consistent with the 1976 Government in Sunshine Act (CD Oct 31 p5), said American University’s Gary Edles, an expert in administrative law. “The mere fact that this chairman does things differently from his predecessors doesn’t seem to me terribly troubling.” Bill Funk of Lewis & Clark Law School agreed that a chairman can withhold his vote at first. “There’s no written rules that require it one way or the other,” said Funk, another administrative law expert.

Others criticized Martin. “The new Martin practice fits with his unusual style of ‘leadership,'” said Professor Richard Pierce of the George Washington University Law School. “Martin makes no effort to lead his colleagues in a collegial decisionmaking process.” Christopher Sterling, a professor at the university’s School of Media and Public Affairs, said that when he was an FCC aide in the 1980s, commissioners voted on three-quarters of items at public meetings. “Today maybe a quarter is dealt with in public meetings,” which isn’t in the spirit of the act, he said. “It’s appalling.”