O'Rielly Calls Again for Posting Text of Draft Items
The FCC should make public draft texts of proposals to be taken up at commission meetings at the same time they're circulated to commissioners, Commissioner Mike O’Rielly said in a blog post Friday. O’Rielly called for the change in August…
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(see 1408080031). He said now he understands the texts of items aren’t posted in advance of meetings because “it could be harder to comply with the Administrative Procedure Act,” and that “it could be more difficult to withhold documents under the Freedom of Information Act,” the post said. Neither argument is “persuasive or insurmountable,” O’Rielly wrote. His spokeswoman declined to detail who at the agency made those arguments. The agency didn't comment on O’Rielly’s blog. The concern about the APA, O’Rielly wrote, is that it requires the commission to review all comments and ex partes in a proceeding and respond to any substantive issues. “The concern is that, if we provide a copy of the draft item, we will get more specific comments and ex partes that staff will have to address when finalizing the item," said O'Rielly. "That is, we might actually get constructive feedback based on facts about what is in a draft that require us to roll up our sleeves and explain why we’ve made certain decisions and discarded alternatives.” Calling it a “logistical issue” and not a legal one, O’Rielly said the commission’s “capable and hardworking staff and managers” would be “up to the task” of dealing with it. O’Rielly also disputed a concern that releasing a draft of an agenda item “would make it harder to justify withholding other drafts or even internal emails about various drafts. … I am confident that our talented lawyers at the agency can handle it.” O’Rielly also said he has a sense that there are “some unspoken objections to the proposal” -- that “parties could be in a better position to figure out which edits have been requested by which offices.” He’s not troubled by that prospect, O’Rielly said. “Having worked on the Hill where members put their names on amendments, I am comfortable being associated with my requested edits,” the post said. The current process, O’Rielly said, can lead parties to have “limited or even incorrect knowledge of what is in a draft item, and therefore raise arguments that may be, through no fault of their own, untimely, unnecessary, or misdirected. That, in turn, requires staff to spend time sifting through red herrings rather than considering focused input that could strengthen the reasoning and ultimately the legal sufficiency of the item.”