Category: News

The FCC Gets Serious On Outreach

One of the longstanding problems noted but not generally addressed before in FCC policy has been how to get the word out to folks not already plugged in as insiders to file comments. Traditionally, the FCC (like most federal agencies) has taken a very passive attitude. (Indeed, the FCC has traditionally been ahead of the curve. Many federal agencies have made it downright difficult for members of the public to find out what has been going on, or to file comments.)

In the last few weeks, the FCC has taken a number of steps forward on this. It started modestly with Twitter. Then came the the blog, including a video blog of Chairman Genachowski. As if that werent enough, last week the FCC launched a slew of social networking and crowdsource tools including an RSS feed, a crowdsourcing platform, and a site to track all the social media tools, such as the FCCs Facebook and Youtube pages. And, perhaps more important from the perspective of actually considering the public comments, FCC Spokesperson Mark Wigfield stated that comments on the blogs will become part of the official record.

All of these are tremendous steps forward and worthy of applause. Yes, there is still lots to do on making things like the electronic comment system or the Universal Licensing Service more usable. But folks at the FCC have acknowledged this time and again, and deserve credit for doing the things they could do quickly first. Steps forward deserve encouragement, especially when they keep on coming.

Which brings me to the unexpected surprise in my email box today. I received an outreach email from the FCC, with a request that I pass it on to anyone I think interested.

Think about that, the FCC doing outreach. Not just making it easy for anyone already interested, but trying to get the word out to those who might otherwise never even hear about a relevant FCC proceeding until too late.

It is easy to remain cynical about whether the FCC is really looking for new ideas or just putting on a show before going down the usual time-worn route of caving to the incumbents. Certainly we here at PK have not hesitated to make our opinions known when we see something weighted too far to industry or when the Administration bows to industry pressure. At the same time, we should recognize when the FCC makes extensive efforts to bring the public in and take them at their word that they want new ideas and real evidence from a variety of disciplines.

Mind you, we still have to make our case. But I am operating on the assumption the folks at the FCC are actually listening.

Heres the FCCs outreach letter. Feel free to spread it around.

On August 27, the Federal Communications Commission released two Notices of Inquiry (NOIs) seeking public input on questions related to innovation and competition in the wireless communications industry. We invite you to file comments in one or both of these proceedings. There is no obligation to respond, but the FCC hopes to receive ideas from a broad range of interested parties. Please share this information with your colleagues.

One NOI seeks comment on innovation and investment in the wireless industry and on concrete steps the FCC could take to support and encourage further innovation and investment. The full text of this NOI is available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-09-66A1.pdf. For additional information regarding this NOI, please contact Peter Trachtenberg at (202) 418-7369 or [email protected]

The other NOI seeks comment, data, and input on competition in the mobile wireless industry, including the vertical relationships between providers in different segments of the mobile wireless market, such as service providers and device manufacturers, and the effects of such relationships on competition. The full text of this NOI is available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-09-67A1.pdf. For additional information regarding this NOI, please contact Chelsea Fallon at (202) 418-7991 or [email protected]

The deadlines for filing comments in both of these proceedings have been extended. Comments are due by Wednesday, September 30, 2009, and reply comments by Thursday, October 15, 2009.

Instructions on how to file comments are included at the back of each of these NOIs and in public notices available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-09-73A1.pdf

and http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-09-72A1.pdf.

Additional information on how to file and access comments can be found on our website at http://www.fcc.gov/cgb/ecfs/.

Wireless Telecommunications Bureau

Federal Communications Commission

Stupak Bill Would Promote More Honest Decisionmaking at the FCC

Its been nearly a year since Public Knowledge and the Silicon Flatirons Center held its FCC Reform conference, and the FCC has moved slowly but steadily towards addressing many of the concerns raised at the conference and the paper submitted beforehand.

One concern raised by a number of the conference participants was some of the unintended consequences of the Government in Sunshine Act. The Sunshine Act was intended to ensure that agency business is not done behind closed doors. This is certainly a noble goal, but by prohibiting more than 2 Commissioners (3 is a quorum for the 5 member FCC) to meet unless an open meeting is held and public notice is given, power has trickled down to unappointed and unconfirmed FCC staffers, who are under no such prohibition and who serve as secret brokers for their bosses. After staff finish their horse trading, the actual open meeting is like Kabuki theatre – Commissioners read from prepared statements, there is little or no debate and the outcome is predetermined.

Today, Rep. Bart Stupak (D-MI) introduced legislation to exempt certain Commission collaborations from the Sunshine Act while providing protections to ensure that important Commission decisions are not made behind closed doors. H.R. 4167, entitled the Federal Communications Commission Collaboration Act, would permit 3 or more Commissioners to hold a meeting that is closed to the public to discuss official business under four conditions:

no vote is taken at the meeting;

each person at the meeting is either a Commissioner or Commission employee;

there is at least one Commissioner from each political party; and

an attorney from the FCCs Office of General Counsel is present.

To ensure transparency, the bill requires the FCC to disclose the meeting on its website, including the names of attendees and a summary of the matters discussed at the meeting. If passed, the law would sunset after 5 years.

This bill was the result of recommendations made by Commissioner Michael Copps and former Chairman Michael Powell, but numerous other former Commissioners, most notably Nicholas Johnson and Ervin Duggan have similarly complained about the limits the Sunshine Act places on sound policymaking.

We agree, and believe that the Stupak bill could result in more frank discussions among Commissioners, greater collegiality and collaboration, which in turn will result in more honest policymaking. It is critically important, however, that private meetings between 3 or more Commissioners be documented in detail. To that end, it is critical that the FCC reform its ex parte rules, which require that most meetings between Commission staff and the public be documented and made part of the public record. We have complained in the past that such rules have been honored in the breach and have not been enforced by the Commission. Thankfully, the FCCs Office of General Counsel is undertaking such reform, and has already held a workshop featuring, among others, PKs very own Jef Pearlman.

Public Knowledges statement supporting the bill is here.

FCC Reform Moves Forward At Thursdays Meeting

Assuming the Federal Government opens for business on Thursday (and I am not taking bets), we can expect to see Genachowski taking another substantial step to make good on his pledge to reform how the FCC does business. The agenda for the Commission’s open meeting for Thursday, February 11 lists three items. Two have to do with changing FCC rules to make the agency more open and more streamlined, the third has to do with reforming the E-Rate Program under which schools get money to subsidize broadband.

We can expect that to the extent the press cover this, the focus will go to the E-Rate story. At least people understand about broadband in schools. But for long term difference that matters, the FCC process stories — while phenomenally boring and unsexy — have much broader impact.

The first item is a general “housekeeping” item.

The FCC has already made strong improvements on the E-government front. But to the extent things like blog comments are actually part of the record, the FCC needs to issue a public notice on a case-by-case basis. The proposed new rules should standardize and simplify the ways in which the FCC does business to take into account the new technologies, and institutionalize these changes as opposed to operating them on a continuously ad hoc basis.

The second item relates to the system of “ex partes.” Whenever parties discuss matters with FCC staff or Commissioners relevant to a “permit but disclose” proceeding (which covers most rulemakings and major mergers these days), the party that meets with the FCC personnel need to file a written summary of the conversation called a “notice of oral ex parte presentation” or just “ex parte” for short. This rule tends to accumulate lots of “street law” exceptions (e.g., the “trade show” exemption, which holds that somehow any private conversation held at an industry trade show doesn’t count). More significantly, the part of the rule that requires parties to disclose what they actually talked about tends to get ignored (you can see my vote for “Worst Ever Ex Parte” here).

For about a year now, the FCC have been looking at how to improve the ex parte process to make it more likely that parties will file meaningful summaries and help reduce the problems with compliance. At the meeting, the FCC will release a proposed set of rules. Of course, like all proposed rules, these will need to go through notice and comment and be adopted as final rules. So parties can still recommend further adjustments or explain why proposed changes may not be a good idea after all, and then parties can explain why the first set of comments are either too ridiculous and burdensome or obvious attempts to preserve the status quo that favors entrenched interests — depending on your preference.

Real FCC reform, like most process reform, is incredibly unsexy and detailed oriented. It is easy to pledge more “openness” and make cosmetic changes. It takes commitment and determination to actually go through the process of changing rules to make things work better for everyone over the long haul. So a tip of the hat to Genachowski and everyone else at the Commission for carrying through on the commitment. Now up to us to do our part and actually participate in the rulemaking process.

EVENT: An FCC for the Internet Age: Reform and Standard-Setting

A Conference Hosted by Silicon Flatirons, Public Knowledge and the Information Technology & Innovation Foundation (ITIF).

Washington Court Hotel, 525 New Jersey Avenue, NW, Washington, DC March 5, 2010, 9:00 AM – 12:15 PM (Light breakfast and registration at 8:30 AM)

RSVP HERE

Last year, Silicon Flatirons co-hosted events, respectively, with Public Knowledge on FCC reform, and ITIF on innovation economics and new models of governance. This conference is a follow-up and confluence of those two topics: Where do we stand on efforts at FCC reform? And how do new models of governance and standard-setting fit into that reform effort?

The preamble from the www.fcc-reform.org website summarizes the conclusions from the January 2009 conference: The consensus was clear – the FCC has serious procedural, organizational, and cultural problems that must be addressed by the agencys incoming leaders as soon as practicable. While the current FCC leadership is being asked to perform many tasks, the consensus about reform is foundational to the credibility of any actions the agency might take. Accordingly, it is not too early to assess whether and how the new FCC is addressing those procedural, organizational and cultural issues and if the FCC has made progress on reform. These issues will all be addressed in the first panel.

The second panel will explore the purpose and guiding principles of standard-setting for broadband, as well as the specific topics standard-setting and mediating institutions might be well-suited to address.

Welcome 9:00am – 9:15am

Dale Hatfield
Executive Director, Silicon Flatirons Center
Adjunct Professor, University of Colorado
Former Chief Engineer, Federal Communications Commission
The Present and Future of FCC Reform 9:15am – 10:30am

Mark Cooper
Silicon Flatirons Senior Adjunct Fellow
University of Colorado
Director of Research
Consumer Federation of America

Susan Crawford
Professor of Law
University of Michigan

Matthew Hussey
Telecommunications Legislative Assistant
Senator Olympia Snowe

Nick Johnson
Professor of Law
University of Iowa
Former FCC Commissioner

Mary Beth Richards
Special Counsel
Federal Communications Commission

Austin Schlick
General Counsel
Federal Communications Commission

Moderator: Gigi B. Sohn
Silicon Flatirons Senior Adjunct Fellow
University of Colorado
President and Co-founder
Public Knowledge

Networking Break 10:30am – 11:00am

Regulatory Reforms: Standard-Setting and Mediating Institutions 11:00am – 12:15pm

Kathryn C. Brown
Senior Vice President, Public Policy & Corporate Responsibility
Verizon

Paul de Sa
Chief, Office of Strategic Planning & Anaylsis
Federal Communications Commission

Pierre de Vries
Silicon Flatirons Senior Adjunct Fellow
University of Colorado

Kathleen Wallman
CEO
Wallman Strategic Consulting

Rick Whitt
Washington Telecom and Media Counsel
Google

Moderator: Robert Atkinson
President
Information Technology and Innovation Foundation

Bringing Private Meetings at the FCC into the Light

If you stand outside of the FCC on any given day, you will have the opportunity to witness the great ebb and flow of telecommunications lobbyists (and, admittedly, the occasional public interest representative) streaming inside. These folks are at the FCC to have private meetings to discuss their issues with staffers and Commissioners. Although these meetings are private, there are some rules – called ex parte rules – that require people meeting with Commissioners and Commission staff to write up a summary of what was discussed. These summaries – called ex parte letters – are supposed to let the public know what happened. Unfortunately, for a variety of reasons, those letters are not always very informative.

As we announced in The Greatest Video EVER Made in the History of the World About FCC Ex Parte Reform, the FCC recently began looking at ways to improve its ex parte system and bring some transparency to the process. Yesterday Public Knowledge, along with Consumer Federation of America, filed our suggestions. In our comments, we suggested some big changes as well as some smaller changes to try and fix the system.

In the big change category, we offered three different ways that the Commission could eliminate some of the secrecy surrounding the private meetings. The first option would be to eliminate ex parte meetings entirely. Instead of in person meetings, all information presented to the Commission would have to come in the form of a written comment. This way, the public would know exactly what points are being made on a given topic.

The second option would be to make a video recording of the meeting available to the public. If the private meetings are valuable, the video option would be a way to make them as transparent as possible.

The third option is to have an independent third party, a “neutral scribe,” attend the meeting and prepare a record. This record could either be a verbatim transcript (like a court reporter) or a detailed summary. As with the video recording, this report would be accessible to the public and provide meaningful details about the discussion.

Ideally, the Commission would approve all three of these options, and then let individual Commissioners and Bureaus choose from the menu. That way we could find out which most effectively balanced the importance of bringing the business of the Commission into the sunlight with the value of having the meetings in a resource effective manner.

We also proposed a number of smaller changes. Perhaps the most important was to the scope of what can be discussed during a meeting. The value of private meetings is often justified on the grounds that they give the Commission staff an opportunity to probe arguments offered by various parties. In light of this, we suggest that the scope of private meetings be narrowed to include only existing arguments. If a party has an important new argument to put forward, it should be required to do so in a written document open to the public.

Finally, we pointed out that one of the biggest problems with the current ex parte system is not that today’s rules are deficient, but rather that no one is actively enforcing them. Any reform of the ex parte process must be paired with a commitment to enforcement, or the entire exercise will be a waste of time.

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