Martin Takes on Backlog, with over 150 Items Circulating

FCC Chmn. Martin aims to gnaw down a stack of rulemakings -- some more than 4 years old -- by circulating over 150 items to commissioners for votes outside normal meetings, a latter-day record according to current and former agency officials. Items awaiting commissioner votes exceeded 170 ahead of a March 14 House Telecom Subcommittee hearing (CD March 15 p1), according to officials. A source put the total at 180 now. That compares to a late Nov. total of about 40 rulemakings on the 8th floor, a former staffer said. Usually no more than a few dozen orders await commissioner review at a time.

The flurry of activity results from a chairman’s office slow to move on routine items, and Hill Democrats’ pressure for FCC action. A recent rash of hearings spurred Martin’s office to dislodge some rulemakings so lawmakers would have less basis to accuse him of sloth -- a criticism familiar to Martin from complaints by communications lawyers and FCC officials (CD Sept 5 p1, Sept 6 p1), some agency and industry lawyers said. “The timing is not purely coincidental,” an FCC official said: “He feels he has to kind of get these things out.”

Martin has more to slalom through than an 8th floor avalanche, said industry lawyers and current and former FCC officials. He confronts an archive of items predating his chairmanship. Many have been before the FCC for years and address routine issues, a Commission spokeswoman said. An FCC official said about 1/3 date to 2003 or earlier -- well before Martin’s March 2005 promotion to chairman.

Old items lagged for lack of powerful constituencies to push for their resolution, whether at the chairman’s office or elsewhere, said industry lawyers. “It sits there because no one takes a strong interest in it,” said a veteran telecom lawyer: “Eventually the stuff piles up, and once Congress inquires about the backlog, stuff kind of gets kicked out.”

Upshot: Many more orders, waivers and the like see action, pleasing media, telecom and lawyers. “Most people will just be pretty happy this is happening,” a former FCC official said: “These backlog reduction efforts happen from time to time.” Michael Powell’s chairmanship (Jan. 2001- March 2005) saw at least one such push to get out items, said the former staffer. Powell’s office once distributed coffee mugs emblazoned with the word “backlog” circled and slashed through in red, said the staffer. Former Comr. James Quello (1974-1997) told us he tried to avoid backlogs while he was interim chairman, and advocated the same goal as one of the longest-serving FCC commissioners. “We had circulation problems, too, when I was chairman, even when I was commissioner,” he said: “I used to urge people for God’s sake to get them out.”

Jam-Packed Agenda Meeting

In another echo of the backlog, Commissioners voted on a dozen items at last Fri.’s meeting -- another recent record - - a 3-1/2 hour marathon, compared with the less than 2 hours and fewer than 6 items logged at most meetings during Martin’s chairmanship. About of Fri. agenda’s items were considered innocuous by the commissioners but still required a vote, said FCC officials. They included review of a slew of noncommercial FM station permits and E-Rate appeals, we're told. Like those, many of the 150 rulemakings in circulation are considered benign. “A lot of these items are routine,” said a former staffer. A vote must occur because the full Commission hasn’t dealt with the issue, lawyers said.

Nothing bars commissioners from acting on such items between meetings, said regulatory lawyers, and that may be the fate of many items. “It might be a good way to process a lot of extraneous items,” Quello said: “They're important enough that they need a vote, but not important enough to need a Commission vote” during a public meeting.

The FCC quickly acts on hot-button issues of priority to the chairman, with less important issues put on the back- burner, said a communications lawyer who once worked at the FCC said: “The focus has been on the few things that are important rather than the little things that keep the trains running.” Before the work to cut the backlog, there was “grumbling from the staff” about why items they prepared were stalled, he said. When leadership changed on the Hill, “there was a mad dash” at the FCC to clear the backlog, since House Commerce Committee Chmn. Dingell (D-Mich.) has a history of pillorying agencies for regulatory backlogs, he said. The backlog effort has led to longer hours, and more carping than usual by bureau lawyers convinced their labors go unappreciated, former staffers said.

When votes lag on circulated items, it may be outside the chairman’s control, said another former FCC official. Items tend to go on circulation when the chairman already has voted, so other offices are causing the delay, the source said. But a chairman might be at fault if “he isn’t exerting adequate pressure or not setting adequate time periods to vote,” the official said. Items on circulation include a Martin-endorsed notice of proposed rulemaking asking whether small programmers should be able to get cable must-carry rights by leasing multicast spectrum from TV stations and one to let AM stations use FM translators, FCC officials said.

Other commissioners sometimes drag their feet on items they don’t agree with, but that’s not the reason for today’s welter of items in circulation, a regulatory lawyer said: “The large number now is because a lot of items were placed in circulation by the chairman’s office at the same time, because of changes in leadership on the Hill,” she said. “The [commissioners'] offices can only handle so many items at the same time” so a backlog quickly developed.

Martin moved fewer items his first full year than predecessor Michael Powell, perhaps a reason for the backlog, a communications lawyer said. The Commission voted on about 188 orders in 2006, Martin’s first full year, about 1/3 fewer than the 299 orders acted on in 2004, Powell’s last full year, the lawyer said. The figures are based on the number of the last order each year; the FCC numbers each year’s orders consecutively, starting with 1, he said.

FCC Management Concerns

The slew of items circulating raises old questions about micromanagement by Martin’s regime, said critics including communications and telecom lawyers and several FCC officials in other offices. These skeptics say rulemaking is slowed because Martin reserves to himself and a few aides the right to greenlight items for Commission review. Martin disputes that analysis, and an FCC spokeswoman said wants action on all items before the agency. Other agency officials and some industry lawyers discount Martin’s professions of desire for administrative efficiency, tracing the FCC review mechanism’s lurch into gear to a jumpstart from Congress.

The stack of items shows Martin’s commitment to progress on rulemakings, FCC and industry officials said. “It’s important to address the issues that are before the Commission and there are a large number of issues that are currently before the Commission,” an FCC spokeswoman said: “There has been some effort to try to identify those issues that might have been pending for a while and either seek to close them out or act on them, one way or another.”

Martin expected a grilling on the backlog in oversight hearings, an attorney said. “Word had come down that when the chairman went up on the Hill he was going to take heat,” this source said: “It’s an example of Congressional oversight working either overtly or covertly… It means that Democratic oversight is in full bloom now and there is greater pressure to get the day-to-day work of the Commission done.”

“It doesn’t take long for things to get backed up,” a former top FCC staffer said: “The commissioners are going to deal with the items as they see fit. They'll roll through them in the appropriate time.”

Martin may be at the point in his tenure when he’s ready to tie up loose ends, a regulatory attorney said: “It may reflect things moving slowly and getting jammed in various pipelines both within bureaus and possibly in the chairman’s office and possibly on the 8th floor… Clearly there’s some renewed effort to terminate proceedings, have petitions withdrawn that are outdated or that they may no longer be interested in. That can clog the docket and it can be a good thing to purge the old and not keep so many outdated items around… It’s my sense that every chairman at around this point in their tenure… starts focusing on the bureaucracy.”

In public remarks this year, Martin discounted the influence on his efforts of intensified Hill oversight. An FCC spokeswoman echoed those comments remarks, saying: “Everyone is aware that there’s going to be oversight and we're pleased to talk to Congress whenever they'd like us to.” She challenged contentions that Martin’s management figures in the number of rulemakings circulating. “There are some issues that have been before the Commission for a long time, even before the current chairman became chairman,” she said: “I think it’s a positive to think that the chairman and his office are very actively involved in managing the agency and the issues that come before it.”