Pai Test to Make Agenda Drafts Public Draws Plaudits; Some Expect More Pressures

“We begin the process of making the FCC more open and more transparent," Pai said Thursday, announcing his initiative to reporters (see 1702020016). As a test, the agency issued the full text of two draft items on the tentative agenda for the Feb. 23 commissioners' meeting: an NPRM in docket 16-142 seeking comment on allowing TV broadcasters to use ATSC 3.0, the next-generation standard, and an order in docket 13-249 to give AM radio broadcasters more flexibility in siting FM translators (see 1702020060). “We believe that releasing these documents -- rather than keeping them behind closed doors until after our vote -- will increase the public’s understanding of our decision-making process, and result in final rules that better serve the public interest,” he said in a release. If all goes well, Pai told reporters, he hopes to release the full text of all draft agenda items for the March 23 meeting three weeks ahead of time, or March 2.

The FCC also plans to vote on four broadband/telecom items at the Feb. 23 meeting, said the tentative agenda: a Connect America Fund mobility fund order, a CAF Phase II auction order, a small-business exemption from net neutrality enhanced reporting duties and an order to streamline Part 32 accounting rules for price-cap telcos.

Pai said the FCC needs to do a better job of communicating its plans to the public. He said lawmakers make their bills public when they introduce them, but the texts of draft agenda items circulated to commissioners ahead of meetings aren't released until they're adopted and finalized. "This is precisely the opposite of transparency," he said in a prepared statement. "Now, that’s not to say that the contents of FCC proposals and orders remain secret to everyone. Lobbyists with inside-the-Beltway connections are typically able to find out what’s in them. But the best that average Americans will get is selective disclosures authorized by the Chairman’s Office -- disclosures designed often to paint items in the most favorable light. More often, the public is kept completely in the dark.”

“I’m pleased to announce this morning a pilot project that, if successful, will become a Commission practice -- one that will give the public much more insight into the Commission’s activities," Pai said, noting the decision to release the two broadcast items. "One announces a proposal and asks for public input; the other takes stock of that input and announces a decision. I have deliberately chosen one NPRM and one order for purposes of this test run." The commission will assess how the process plays out, but he said he hopes to make the practice the norm, the new chairman said. "My goal is a simple but powerful one: equal access to the administrative process." He said he also chose the broadcast items because of their importance to consumers, and while highly technical, staff did a "superb job" of making them readable. Pai said he hadn't yet considered whether to make items public that are circulated without being targeted for a meeting.

Positive Reaction

O'Rielly spoke after Pai and gave him "kudos" for the move. "This is an idea whose time has come," O'Rielly said in a prepared statement. "If this initial attempt goes well -- and I see no reason why it wouldn’t -- I think we will all find this to be a significant upgrade in terms of quality of feedback, quality of process, and, ultimately, quality of the Commission's work product. Soon, we can make this standard operating procedure for more of the Commission's work." Commissioner Mignon Clyburn didn't attend and declined to comment.

Congressional Republicans lauded Pai's announcement. “This is the type of transparency we’ve been urging the FCC to implement for the last several Congresses," said House Commerce Committee Chairman Greg Walden, R-Ore., and Communications Subcommittee Chairwoman Marsha Blackburn, R-Tenn., in a statement, which noted the House Jan. 29 unanimously passed an FCC process reform bill, HR-290, that included the transparency practice Pai announced Thursday. Senate Commerce Committee Chairman John Thune, R-S.D., Communications Subcommittee Chairman Roger Wicker, R-Miss., and Sen. Dean Heller, R-Nev., also issued a statement applauding the move. "After leading an investigation last year into the FCC’s manipulation of information in advance of open meetings, I believe that a more transparent FCC will be more credible and more accountable," Thune said. "I am pleased that the new leadership is correcting this long-recognized process flaw.”

Various industry parties and others issued laudatory statements, including AT&T (here), Charter Communications, the Internet Innovation Alliance (here), NAB (here) NARUC (here) and USTelecom (here). "There is no reason why reform of FCC processes can’t be subject to trials in cases where there are non-frivolous concerns raised about the change in process," emailed Free State Foundation President Randolph May. "In this instance, the increase in the public’s access to information concerning the actual text of draft orders might lead to sounder decisions by virtue of more open exchanges.”

Ex-officials also praised Pai but said the increased transparency came with a price. "Even though disclosing to the public the full text of draft proposals and agency actions may prove to be an added burden on the FCC's professionals, it's hard for anyone to argue against better transparency in government," emailed former Commissioner Robert McDowell. "Ajit is doing exactly what he said he would do, and that should be refreshing to anyone in favor of good government.”

“You have to give a lot of credit to Chairman Pai because he is now walking the walk that he previously talked," former Chairman Reed Hundt told us. "This is something very important that he pressed on [previous Chairman] Tom Wheeler and he’s applying it to himself.” But Hundt added: "This open process is going to put a lot of pressure on the FCC to take in all of the infinite number of comments, and in a fairly short time then make a decision." Despite the pressure, Hundt said the change "could work very positively.”

Pai and O'Rielly acknowledged the issues but were optimistic the new process would still be better. Pai said stakeholders won't have to waste much of their time in meetings and "back and forth" just trying to find out what's in draft items, and could thus provide better final input. He said he doesn't anticipate providing "iterative" updates in the final three weeks before the meeting. "We’ll see," he said. O'Rielly said, "While it may make our jobs a bit more challenging, it is the right thing to do for the American people, the practitioners before the Commission and the professional staff and press who report on Commission activities.”

Meeting Items

The FCC Feb. 23 agenda summarized the four other items.

The mobility fund order would adopt "rules to provide ongoing support targeted to preserve and advance high-speed mobile broadband and voice service" in unserved high-cost areas. The CAF II order resolves "issues raised in the Phase II Auction Order FNPRM, including the adoption of weights to compare bids among service performance and latency tiers, and considers several petitions for reconsideration.”

The small-business exemption order would grant a five-year waiver to ISPs with 250,000 or fewer broadband connections from the enhanced reporting requirements of the 2015 net neutrality and broadband reclassification order. Pai and O'Rielly voted for that draft (see 1701270058).

The Part 32 order would "streamline and eliminate outdated accounting rules" under the uniform system of accounts (see 1701300036).

“Fittingly, this month’s robust docket features two priorities I’ve touted on a perpetual loop since becoming Chairman: closing the digital divide and removing unnecessary regulations," Pai said in a blog post, noting it was Groundhog Day. He said the mobility fund order would redirect funding being wasted -- on wireless carriers in areas where private capital is building networks -- to "bringing 4G LTE service to rural Americans who don't have it today" with more targeted support and a reverse auction. He said the CAF II order would direct support to deploy fixed broadband in unserved rural areas through a separate reverse auction. He said the third order would reinstate an small ISP exemption from "unnecessary" broadband reporting burdens, "an order directly modeled on bipartisan legislation" in Congress. The final order would "minimize the compliance burdens" of "arcane accounting rules" for one telecom segment, he said.