FCC Release of Drafts for Meetings Seen as Win for Transparency; Questions Remain

FCC leadership said release of draft items for monthly meetings is a big success, improving transparency and public understanding of planned actions. “The Open Meeting plays a critical role in the work we do and generally serves as the platform for our consideration of the most high-profile proposals,” said Chairman Ajit Pai in a statement to us. "It is simply good government to make public the text of the items we will be considering there.” GOP colleagues Mike O’Rielly and Brendan Carr back the new practice. O'Rielly said it leads to better feedback and outcomes. Pai recently floated the possibility of also releasing text of items on circulation among commissioners; O’Rielly endorsed the idea. Others haven't weighed in.

Government watchdogs, former commissioners and others said releasing draft meeting items increased regulatory openness and is positive overall. “This is good news for good government, with the potential to set a new standard for transparency,” said Alex Howard, Sunlight Foundation deputy director. “It remains to be seen if the agency is willing to also be responsive to the resulting public feedback if it is not aligned with the chairman’s preferred policies.” Some believe the new practice puts more pressure on staff, complicates commissioner negotiations and invites potential procedural objections.

Pai announced on Feb. 2 a pilot project of releasing draft items for meetings (see 1702020051). “You should not have to have a high-priced lobbyist or hire a lawyer in Washington to figure out what it is the FCC is proposing to do,” Pai said at a Sept. 12 Lincoln Network event. Release of drafts makes final discussions "far more productive," emailed a spokesman: "Rather than Commissioners and staff wasting time trying to obliquely explain the item ... Commission staff and interested parties have all seen the item and can engage on the real substance.”

Pai on Oct. 24 declared the trial over and made it official policy to release drafts before meetings (see 1710240062). “The pilot transparency initiative was extremely successful, and it was an easy decision to make it permanent,” Pai said now. “The feedback I’ve heard has been very positive."

Much Praise

O’Rielly has called the new policy a “smashing success," saying it reduces uncertainty, "cloak and dagger" efforts, and the number of ex parte meetings, with meetings producing better stakeholder advocacy and proposed edits. "I am aware of few people who disagree with this practice and have found a large number of converts who now actively support it," he said in Oct. 25 House Communications Subcommittee testimony (see 1710250050).

Carr in a statement called the pilot a "great success." He said it "equalizes the playing field because everyone now knows what the agency is working on, rather than in previous administrations where a select few might have had greater access to information.” Democratic Commissioners Mignon Clyburn and Jessica Rosenworcel didn't comment.

Ex-commissioners applauded. "It's a good practice. Government in sunshine brightens the day,” said Reed Hundt, Democratic former chairman. "The public will have a much better opportunity to give responsive comments if the actual text of the items is available," said Democrat Jonathan Adelstein. "Ajit has quickly proven himself to be the most transparent chairman in FCC history," said Republican Robert McDowell. "He's setting a best practices standard."

"This is a good move," said Sean Moulton, Project on Government Oversight (POGO) open government program manager. "Kudos are due here to the Chairman," emailed NARUC General Counsel Brad Ramsay. "It is often said that sunshine is the greatest disinfectant, and this is especially true when it comes to the inner working of government regulators," said USTelecom President Jonathan Spalter. "Eliminating pre-meeting guessing games about what's in a draft item helps everyone." The releases removed much rumor mongering, said Phillip Berenbroick, Public Knowledge senior policy counsel. Despite some initial skepticism, he said the initiative has been "helpful," putting parties on more equal footing.

Circulation Policy

Pai said he's interested in discussing with colleagues possible release of circulation drafts and working with staff "to determine if that would be the right way forward."

O'Rielly "has been leading the charge," emailed an aide. "If we make the bigger ticket items public, why not the smaller ones (obviously this is with the exception of adjudications, including mergers and enforcement actions that have to remain confidential)?” Carr didn't comment on the idea.

"There could be real problems in releasing all items," said Michael Copps, Democratic former commissioner. "Many technical and legal disputes involve confidential, financial, and personal information that needs to be protected during the deliberation process."

NARUC's Ramsay supports releasing circulation drafts with an expectation votes wouldn't occur for three weeks on nonemergency orders to provide a chance for public input. Without a comment window, there wouldn't be much point in releasing circulation drafts, said PK's Berenbroick. There are concerns releasing circulation drafts for public consumption could overload staff, though there were similar concerns about releasing the meeting drafts (see 1703030052).

Issues Remain

Wireline Bureau Chief Kris Monteith was "a little skeptical" about the pilot project early on due to the potential staff impact. The fear was stakeholders would bombard staff with line edits that "would make our lives incredibly difficult," she said at a Sept. 13 FCBA event. "It has not played out in that way."

Bureau Associate Chief Lisa Hone invited parties to make more recommendations for implementing draft order details, telling the event such tweaks can head off mistakes. "Sometimes, we just got it wrong," Monteith said. O'Rielly said focused input will help improve items and cut down on petitions for reconsideration.

Having seen a draft international reporting order, AT&T convinced the FCC to back off proposed disclosure of route information, which the company said would undermine "least cost routing" that pressures high foreign termination rates (see 1710170024). "We agree," the final order said.

But release of drafts appears to be making it harder for commissioners to negotiate because everything is in the spotlight, said some. "We haven't seen many changes to drafts," said Matt Wood, Free Press policy director. "You're freezing things in place." He said even Republican commissioners are struggling to influence the final product: "This lets the chairman dictate not only the initial part of the game but potentially the entire game."

McDowell disagreed, saying releasing drafts gives opponents of proposals more power because they can see what they don't like and lobby against it. "Before, the public had to rely on rumors or leaks," he said. "It’s bizarre that some would say more secrecy in government is needed.” POGO's Moulton said the ability of parties to make changes depends on their ability to marshal arguments for good policy that can be defended. Transparency could be hard, but "what we're looking for is a better outcome," he said.

Some say the new policy still hasn't been tested. "None of us is opposed to more transparency," Wood said. "Our concern was it could lead to unintended consequences." If the FCC seeks major last-minute changes, parties could demand a new comment round, which if denied, could raise Administrative Procedure Act challenges, said Wood. "The treadmill is still a possibility ... if and when somebody wants to pull that lever," he said. "The issue is still up in the air," agreed Berenbroick, who said somebody could dump "thousands of pages" of economic data into the record that the agency would need to address, potentially with changes. "Parties could use that opportunity as a weapon to delay." O'Rielly dismissed such arguments as "a parade of horribles."

Berenbroick said it might have been easier for Pai to release drafts because he has a friendly Republican Congress, while Democratic predecessor Tom Wheeler had an increasingly hostile GOP Congress, and was frequently called to testify at hearings. Wheeler didn't comment. "I don't know that the congressional dimension matters that much," Hundt said. "This is the way Pai wants to run the railroad and it is not a bad way." McDowell said: "If Congress changes parties after 2018, [Pai] simply can't be legitimately attacked for his revolutionary process reforms."