FCC Cites Progress on Cutting Some Backlogs, With Media Bureau Leading Way
The FCC has had some success in reducing processing backlogs even as its head count has continued to decline, according to the most recent available agency data. As of year-end 2014, the total number of items pending at the commission for more than six months dropped by more than 37 percent since May 1, 2014, said Chairman Tom Wheeler in a Jan. 21 letter to two key lawmakers. Over that period, the volume of license-related items pending more than six months dropped by 33 percent and the number of applications for review and petitions for reconsideration pending more than six months dropped by more than 12 percent, he said. An FCC spokesman had no comment on the overall performance, but pointed us to some public documents with agency information.
The Media Bureau made the most backlog progress in Q4 2014, according to Wheeler's responses to Reps. Greg Walden, R-Ore., and Tim Murphy, R-Pa., chairmen of the Communications and Oversight Subcommittees, respectively. The responses, which also included an Oct. 17, 2014, letter, showed the Media Bureau reduced the number of applications, petitions, complaints and other requests -- most involving license processing -- across the board. The number of items pending more than five years dropped from 1,028 on Sept. 30, 2014, to 840 on Dec. 31, 2014; the number of items pending two to five years dropped from 1,155 to 905; the number of items pending from six months to two years dropped from 2,909 to 1,924; and the number of items pending less than six months dropped from 3,145 to 1,845. The Public Safety Bureau had similar success in reducing the backlog of items pending under five years, but the number of items pending more than a five years edged up.
The Wireless Bureau, which processes the most license applications and renewals, in Q4 2014 reduced its backlog of items pending two to five years from 2,214 to 1,612, the Wheeler letters indicated. But its backlog for the other periods grew: from 288 to 300 for items pending more than five years; from 1,433 to 2,861 for items pending from six months to two years; and from 10,493 to 11,767 for items pending less than six months.
The biggest complaint about the wireless backlog is on what some regulatory lawyers see as the relatively slow pace in addressing secondary market deals. Sometimes it takes months for an application to be put on public notice as accepted for filing, said a lawyer who represents licensees: “This means that applicants already have experienced delay even before the clock starts to run on the commission’s non-binding processing timetable.”
Former FCC engineer Michael Marcus said the agency invariably falls behind on some spectrum issues. He cited a 2014 petition by Battelle Memorial Institute asking that the commission propose service rules for the 102-109.5 GHz band, which he said has languished even though Battelle was represented by Scott Harris of Harris Wiltshire, a well-known regulatory attorney. “The fundamental problem is that the throughput on spectrum issues is not up to the demand, both because of funding issues and some reorganization issues,” said Marcus, a spectrum consultant. “They can’t possibly act on all the things that are pending.”
Wireless Bureau "stuff doesn’t move when staff hasn’t been given direction on how to move it,” said an industry official. “With license transfers, there was a period of time when they didn’t know what to do with 700 MHz licenses. … What ends up happening, is they get paralyzed because they have a policy issue that hasn’t been settled by the commission. It’s not a staffing issue. It’s the policy direction.”
The Consumer and Governmental Affairs Bureau saw a spike in the number of items -- almost all of which were complaints -- pending less than six months, from 10,183 at CGB to 18,830 in Q4 2014. But Wheeler said that was “due to one-time work flow changes” in the systems being used, and staff expected the transition backlog to clear in early 2015. The Enforcement, International and Wireline bureaus had mixed success (see 1512150021 for more on Wireline).
SODs, FTEs, Lawyers and Politics
The FCC has generally met its speed of disposal goals for processing applications and complaints in a timely fashion. Overall, the commission met its SOD goals between 92 percent and 98 percent of the time in FYs 2009 to 2014, said its FY 2014 Annual Performance Report. The Wireline Bureau and the Office of Engineering and Technology were in the 99th percentile throughout, with Wireline achieving 100 percent success in FY 2009. The CGB was in the mid-to-high 90s throughout FYs 2009-2014, while the Wireless, Media, and Public Safety bureaus were in that range for most of the time period.
International Bureau SOD success ranged as high as 91 percent in FY 2011 and as low as 77 percent in FY 2014, but the report said IB performance was “significantly affected” by consultations with the Executive Branch on foreign ownership. Between FY 2004 and FY 2009, FCC overall SOD performance was also in the high 90s, according to the FY 2009 APR.
Since 2003, when the FCC had 2,015 full-time equivalent employees, the agency’s head count has trended down to 1,708 FTEs in FY 2015. Despite that overall decline, the number of lawyers at the agency has increased from 488 in 2005 to 599 in 2015, said a communications industry official, citing Office of Personnel Management data. Lawyers are replacing many departing employees, the official said: “Every meeting we go to [at the FCC], there are 10 lawyers from the agency sitting at the table, many times from multiple bureaus. The bureaus are almost 100 percent run by the lawyers. You don’t see any economists except in the merger reviews.” The FCC has also outsourced more work to consultants in recent years, the official said. “That’s another kind of black box.”
One former senior FCC staffer said the production flow at the agency slowed because of the increasingly political atmosphere affecting the commission and other agencies over the past 20 years. “You can’t even burp without political scrutiny,” the ex-staffer said. Others disagreed, including another former FCC staffer, who said the commission is “not anywhere near as politicized now” as it was under some previous chairmen. “It’s like night and day.”
International & Media Bureau Details
One satellite industry executive said there generally aren't big IB backlog problems. But the remote sensing licensing backlog is particularly deep, with hundreds of applications seemingly in limbo, creating frustrations for new small satellite firms. An FCC spokesman said the applications in question are likely for small sats or cubesats used for Earth observation and atmospheric measurement and filed with the National Oceanic and Atmospheric Administration, not with the FCC. Once NOAA approves them, they get filed with the FCC, he said.
At the IB, roughly 12 percent of the applications, petitions, complaints and requests before it are two or more years old, Wheeler's Jan. 21 letter indicated. He said as of the end of 2014, IB had 181 items before it that had been pending less than six months and another 193 that had been pending between six months and two years. After that, numbers dropped precipitously, with 40 between two and five years old and 10 dating back more than five years. License applications were a big part of that IB backlog, Wheeler said, accounting for nearly 96 percent of the filings under six months old, about 95 percent of the filings between six months and two years old, and 50 percent of the applications that were two to five years old. Among petitions for reconsideration, IB had eight that were more than five years old -- the same sum it had for petitions for reconsideration less than five years old, Wheeler said.
The Media Bureau’s backlog, meanwhile, skews older. Of the 5,514 applications and complaints before it as of the end of 2014, fully 31 percent -- 1,745 items -- were two years old or more, vs. 11 percent for the IB, said the Wheeler letter. Among the bureaus, Wireline has the oldest backlog, with 54 percent of the items two years or older, the FCC said.
Micah Caldwell, ITTA vice president-regulatory affairs, said that aside from long-delayed FCC review of media ownership rules, “It seems to me that the Media Bureau has been very active in addressing its backlog under the current chairman. Most of the policy issues and rulemakings ITTA has been active in or following, such as the good faith proceeding, the effective competition proceeding, and CVAA [Communications and Video Accessibility Act] implementation, have been moving forward at a reasonable pace. However, that may be attributable to statutory deadlines, in part.”
Both IB and Media have had declining head counts. In FY 2016, the Media Bureau’s FTE count was 173, and it averaged 191 FTEs over the past five years, according to the agency’s annual performance budgets. It had 214 FTEs in fiscal 2011, 238 in fiscal 2006 and 203 in fiscal 2001.
IB staffing has been slowly shrinking. It had 113 FTEs in fiscal 2016, and had averaged roughly 123 FTEs over the past five fiscal years, according to agency annual performance budgets. By comparison, 15 years ago in fiscal 2001, it had 136 FTEs, a number that grew to 143 five years later, and then went back down to 129 by FY 2011.