Making (and Breaking) FCC Rules

Thursday, October 4, 2007

The Government Accountability Office yesterday issued a report on the process by which the Federal Communications Commission gathers and releases information about important votes and other agency actions.

The GAO analyzed the FCC's rulemaking process in four cases between 2002 and 2006, dealing with amateur radio service, cable boxes, cellphone interference with public safety communications and competition in the local phone market. It found that some "stakeholders" in those cases had advance access to public information, giving them a competitive advantage.

In response, an FCC spokesman said the agency has always promoted fair public participation in the rulemaking process and is "exploring ways in which we can make our processes even more open and transparent."

Excerpts from the report:

Several stakeholders told us that they learn which items FCC is about to vote on even though that information is not supposed to be released outside of FCC. FCC circulates information internally approximately 3 weeks before a public meeting to inform FCC staff of what is scheduled to be voted on at the public meeting. FCC rules prohibit the disclosure of this information to anyone outside of FCC. Specifically, the information is considered nonpublic information and cannot be released by any FCC employee without authorization from the FCC chairman. . . .

However, nine stakeholders -- both those involved in the case studies we reviewed and other stakeholders with whom we spoke who regularly participate in FCC rulemakings -- told us that they hear this information from both FCC bureau staff and commissioner staff. One stakeholder -- representing a large organization that is involved in numerous rulemakings -- told us that FCC staff call them and tell them what items are scheduled for a vote.

In contrast, a number of other stakeholders told us that they do not learn this information and do not know which items are scheduled for a vote. These stakeholders, who generally represent consumer and public-interest groups, told us they do not know when FCC is about to vote on a rulemaking or when it would be best to meet with FCC staff to make their arguments. In contrast, stakeholders who know which items have been scheduled for a vote know when to schedule a meeting with FCC commissioners and staff because they know when FCC is about to vote on a rulemaking.

FCC officials told us that, for stakeholders to successfully make their case before FCC "timing is everything." Specifically, if a stakeholder knows that a proposed rule has been scheduled for a vote and may be voted on in 3 weeks, that stakeholder can schedule a meeting with FCC officials before the rule is voted on. In contrast, a stakeholder who does not know that the rule is scheduled for a vote, may not learn that the rule will be voted on until the agenda is announced 1 week before the public meeting.

However, once the agenda has been announced, the Sunshine Period begins, and no one can lobby FCC officials about the proposed rule. As a result, the stakeholder who learns that a rule has been scheduled for a vote 3 weeks before the vote can have a distinct advantage over a stakeholder who learns about an upcoming vote through the public agenda. Our case study reviews and discussions with multiple stakeholders showed that some stakeholders know this nonpublic information and, as a result, these stakeholders have an advantage in the rulemaking process.

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