Wheeler Likely to Make Good on Promises of Process Reform, Industry Observers Say

In November, Cornell asked for e-mailed comments in an FCC blog post. The FCC got back a diverse set of offerings touching on numerous perceived problems (http://fcc.us/1d6xmAd), posted on the agency’s website. The problem is that process reform means different things to different people, industry observers said in interviews. The report is still being worked on, but is a top priority for Wheeler, which he identified on day two of his chairmanship, FCC officials said Wednesday. They said process reform involves the work of a lot of staff, not just Cornell, and takes in hundreds of comments made inside the agency as well as outside.

Cornell is expected to offer the highlights of comments received so far, officials said. The report is likely to single out some steps that can be taken early on, while some proposals are likely to be sent out for further comment. “Remember, we are only at the initial stages of this process,” Cornell said in the blog post (http://fcc.us/MvVhnC). “We plan to remain engaged with the public on ways in which the FCC can be more efficient and effective."

"This is something a lot of chairmen come in and talk about at the beginning and there’s not anything that happens after that based on even an initial good burst,” said Matt Wood, Free Press policy director. Wheeler and his team already have a lot on their plate, Wood added. “With the incentive auction, with the IP transition, with the [net neutrality] court case, with media consolidation issues and all the deals that we've opposed, I wouldn’t be surprised if they are trying to not only think about process but take care of all these incredibly important, substantive issues they have in front of them right now,” he said. “The FCC is in need of process reforms, but our ideas would probably differ from a lot of the filings in the docket."

"The FCC has looked at process reform periodically under chairmen of both parties,” said former FCC Commissioner Robert McDowell, now Hudson Institute visiting fellow. “The balance is often between expediency and efficiency versus thoroughness and flexibility in the administrative process. Shot clocks, for instance, can be a terrific idea but there should be exceptions if there’s a compelling circumstance that requires the extension of a deadline. So no rule should be hard and fast, but at the same time the commission should be required to explain itself if it is missing a deadline."

"It’s kind of a standard thing that any chairman worth his or her salt does,” said a former legal advisor to another chairman. “There'll probably be incremental changes.”

Verizon’s comments said it’s suggested numerous changes in past filings. In this case, the carrier limited itself to two suggestions. The FCC should “put itself on a deadline to issue public notices that impact network changes, discontinuances, and transactions, and to take resulting Commission action,” the company said. It also asked the agency to “more promptly release contribution factors and other data necessary for companies to make required payments into Commission funds."

T-Mobile, a rising competitor to Verizon Wireless, said a key needed change is greater transparency, with parties before the FCC required to state who is paying for their advocacy. “Participatory democracy should rest on a foundation of full, open and honest communication with the public,” T-Mobile said. “As the Commission has recognized, many parties use docketed proceedings to obtain letters and materials of support for their position from groups and individuals they have association with financially and this is not disclosed under the current rules."

Many of the comments called on the FCC to streamline how it does business. “Broadcast licenses are renewed every eight years,” NAB said. “Even with these lengthy renewal periods, broadcast licensees sometimes find themselves applying to renew their licenses while they await action on their applications from the previous renewal cycle.”

"Every time a new Media or Wireless Bureau Chief comes on board at the Commission, I always suggest to them that something needs to be done regarding non-policy matters that languish at the Commission,” said Donald Evans, a lawyer at Fletcher Heald active on wireless issues. “As a long-time practitioner, I find that many matters that for some reason are less than routine take years or even decades to be resolved. I have one case where the application was originally filed in 1990 and 23 years later it still remains in limbo.” Calls for reform touch on many issues, everything from the reissuance of frequent visitor badges by the agency to changes to the commission’s website.

David Honig, president of the Minority Media and Telecommunications Council, told us the single biggest problem is that some matters languish before the FCC for many years and nothing happens. On equal employment opportunity reform, “the pending record has been closed for 12 years, we're still waiting,” he said. A Hurricane Katrina-related petition on multilingual emergency communications has been pending since 2005, he said. The issue of media incubators has been pending in seven dockets since 1992, he said. Minority impact statements have been pending in six dockets since 1990, Honig said. “These are matters that were endorsed by the FCC’s own diversity committee,” he said. “They're not hard.” Getting some FCC action on prison calling took 10 years, “and it’s still going on,” he said. Honig is hopeful Wheeler will make real progress. “It’s very laudable that one of the first things the commission wants to do, the chairman wants to do is process reform,” he said. “People don’t get equal protection when there’s no protection, when there’s no rule. People don’t get due process when there’s no process.”

"After having announced the process reform effort, I'd be surprised if Wheeler did not try to show some meaningful results,” said Free State Foundation President Randolph May. “I've made a number of recommendations over the years, both to FCC and Congress, ranging from the more controversial and consequential, such as transaction process reform and required cost-benefit analysis in rulemakings, to what ought to be less controversial measures, such as shot clock deadlines and prompt release of agency orders. I expect that any changes ultimately announced will be at the less controversial end of the spectrum. But this doesn’t mean they shouldn’t be implemented. And one idea that former Commissioner Deborah Tate has touted has appeal to me to get at the perennial problem of matters that remain stuck in the agency’s deep freezer. Periodically, there should be a commission ‘docket call’ meeting at which any commissioner can bring up for consideration an item that has been pending without any action for, say, two years. The full commission could send it back to the freezer, but at least the pendency of the matter would have to be confronted.”

Blake Reid, with the Samuelson-Glushko Technology Law and Policy Clinic at the University of Colorado Law School, called on the FCC to put in place a “shot clock” for FCC bureaus “to make a threshold determination that a petition is non-frivolous and put out a public notice seeking comment on the petition.” Reid also called for a “centralized, publicly accessible repository of information on the status of petitions, including their filing date, Commission actions taken to date, links to public comments filed on the petitions, and so on."

Most of what commenters asked for is “pretty noncontroversial” and should be adopted, Reid told us Wednesday. “There’s not a lot of substantive changes, the only burden that comes to the commission is changing its processes internally,” he said. “When you look at stuff like allowing e-filing in every docket or reestablishing visitors passes, you'd be hard pressed to fine someone who is going to be upset about something like that.”

Jonathan Marashlian of law firm Marashlian & Donahue commented that the FCC needs to focus on speeding up decisions on appeals of issues arising before the Universal Service Administrative Co. and should provide USAC guidance “within a reasonable amount of time whenever USAC seeks FCC guidance on complex, unclear statutes, FCC rules, regulations and decisions.” Reforming “the USF contribution system has seemingly become the third rail of FCC regulation,” Marashlian told us. “No one at the commission appears to have the intestinal fortitude necessary to engage in the type of reform that is needed to provide greater certainty and stability to the market. ... Markets want one thing: Certainty. The FCC has the opportunity to provide greater certainty on countless USF contribution-related matters that are now pending. We remain hopeful that as part of his effort to reform FCC processes, the new chairman will make reforming the ‘processes’ surrounding the USF program and oversight of USAC a top priority.”

"One of the prime objectives of Republican reformers is to stop the FCC from injecting industry- wide issues into consideration of individual applications,” said a broadcast industry attorney. “By contrast, Chairman Wheeler in his blog wrote that instead of blocking the AT&T/T-Mobile merger, the FCC should have used that transaction to force compliance with industry wide policies not yet adopted in rule form.”

"Wheeler has a good chance of accomplishing many of the internal reforms that he would like to accomplish,” said Nickolaus Leggett, an inventor who filed comments in the docket. “This leaves the question of the influence of these reforms on our communications systems and on society as well. It is likely that the influence of these reforms beyond the FCC will be very limited. This is because the political interests with a stake in the status quo are very strong and they really do not want major changes to occur in the communications industry.” Leggett also told us that the commission is often weak on engineering and technology. “At many points they make errors because their knowledge of technology is weak,” he said. “This could be corrected in part by having a credentialed engineer assigned to each commissioner. This staff member would provide direct advice to his or her commissioner that would provide a technology reality check for that commissioner."

The FCC should take steps to keep transactions from getting held up by bureaucratic processes, said a broadcast attorney. The lack of a clear timeline for deals to get done and a lack of transparency on what issues may be holding up a transaction are frequent problems for broadcasters, he said. Both are issues the FCC could address “organically,” he said.,