FCC-Delayed Federal Register Submissions Hurt Public Participation, Some Say
The FCC this year repeatedly delayed releasing information on proceedings to the public in the federal government's central repository, a Communications Daily review of Federal Register publications found. Net neutrality rules, processes ensuring that consumers can keep their phone numbers when they change service providers, USF provisions, rules on telemarketing calls and other proceedings affecting a wide array of consumers and industries were among those rulemakings subject to publication delays of more than a month and sometimes approaching a year.
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Some experts say in this Part I of the series that our database shows the FCC routinely delayed Federal Register notification, even though the agency does release the items on its own Web page and on its Daily Digest. But sometimes, the FCC implies, the Federal Register itself is at least partly to blame for delays. Part II discusses that process and focuses on complaints from inside and outside the agency that staffers who write items that commissioners publicly vote on then make changes before release.
We found more than 40 instances this year in which items didn't appear in the Federal Register for at least one month after the FCC released notices of actions. On several occasions notice of FCC monthly commissioner meetings, advisory committee meetings and changes to meeting agenda items appeared in the Federal Register after, not before, the correlating meetings occurred.
"If the general public finds out about an FCC action after it's too late to participate in the proceedings, or finds out about it later than those who are more closely connected to the commission's actions, then it makes it less likely that their participation is meaningful," said Free State Foundation President Randolph May. Michael Copps, special adviser for Common Cause's Media and Democracy Initiative and a past FCC Democratic member, said the trend isn't "good for the commission." And "it's not good for the people" waiting for the results or effects of commission orders and rulemakings, he added.
Administrative experts point to several possible reasons behind the delays. Cary Coglianese, University of Pennsylvania Law School professor and director of the Penn Program on Regulation, said every federal regulator faces certain administrative challenges, but "sometimes regulators can be strategic" about when they post or release certain items. May suggested assumptions made by the commission about the timeliness of the Federal Register process could play a factor in the lack of urgency to submit items to the repository. "It may be that the commission is assuming the parties that are most interested in its actions are getting sufficient notice of those actions through the release" of its Daily Digest, May said.
"The volume of matters the FCC sends to the Federal Register and the complexity is much greater than at most other agencies," a commission official speaking on behalf of Chairman Tom Wheeler's office told us. The commission each year releases nearly 950,000 bureau-level items -- many more than commission-level items, the official said, but many of the bureau items don't need to be published in the Federal Register.
Varied Delays
We found various possible reasons for FCC delays, depending on the nature of the late item.
The complexity of the administrative process when incorporating standards from other agencies into certain commission rules and items may affect the time it takes to file with the Federal Register. A final rule updating the FCC's radiofrequency equipment authorization program released by the commission in docket 14-208 Dec. 30 appeared in the June 12 Federal Register -- a span of nearly six months. The FCC, after research conducted by commission staff, said the item was "an 'incorporation by reference' item, which require[s] special handling as we are incorporating standards from other agencies into our document."
In at least one instance, bureau-level oversight contributed to a delay. A rule on local number portability was released by the commission in docket 14-842 June 20, 2014, and appeared in the May 26, 2015, Federal Register -- almost a year after agency release. After research by its staff, the commission acknowledged this was an oversight by the Wireline Bureau, which failed to file the item with the Federal Register. "When the bureau noticed the oversight, it immediately submitted the item," the FCC said.
Another item was published after nearly a year. An exemption granted by the Consumer and Governmental Affairs Bureau, which excused toll-free package delivery notifications from Telephone Consumer Protection Act restrictions on autodialed phone calls, was released by the FCC March 27, 2014, and appeared in the Federal Register the following March 25. The action became effective on the date it appeared in the Federal Register.
A delay in the publication of an action with an effective date tied to its appearance in the Federal Register could be a tactic used by the commission to slow things down, said Public Citizen Regulatory Policy Advocate Amit Narang. But Narang said from the FCC's perspective, it would be counterproductive to do so.
Mixed Opinions
Experts are split on the effects of the commission's late submissions.
Those who said the issue doesn't raise many concerns said the FCC posts on its own website the items it adopts and interested persons seeking notice of commission actions will typically get them from the commission, not the Federal Register. "The FCC seems to have its act together," said Harry Cole, an attorney with Fletcher Heald, which has broadcaster and other clients. Cole, an FCC employee in the 1970s, reviews the Federal Register daily for his law firm, and writes blog posts about them. "Most people who want and need to know [will] find out before it shows up in the Register," Cole said. Copps said process improvements always can be made, but "this commission has generally done a pretty good job" of releasing items in a timely manner.
Narang said the delay in publication could pose issues in terms of transparency and public participation, but said they're "minor" ones compared with some other transparency issues. "In the grand scheme of things," Narang said, "there is an issue here but not one that is as big as other [issues] currently happening."
Some see the matter as limiting public input. If an item is delayed in Federal Register appearance for as long as six months to a year, "that's not indicative of how things should be happening," Copps said. "The general public is also interested in the FCC's actions as well [and] likely does rely on the Federal Register to learn about agency action," May said. He also said the practice of delayed postings limits public participation.