Pai: FCC Processes Too ‘Opaque’
     

The FCC needs to be more nimble in making decisions, says Commissioner Ajit Pai. He has a few suggestions on how to accomplish that.

“As the pace of technological change accelerates, so too must the pace at the commission. We can’t let regulatory inertia stand in the way of technological progress or deter innovation,” said Pai in a speech before the Federal Communications Bar Association today.

His interest comes not just from hearing complaints from Congress, the communications industry and public interest groups, but also from his own experience in how slowly the wheels grind at the agency, having spent several years in the General Counsel’s office before becoming a commissioner in 2012.

Proceedings dragging on for years are not the fault of the staff, he stressed.

During a Congressional oversight hearing last July, Pai recalled, two lawmakers asked about two separate petitions that had been pending for more than eight years. “Shortly after that hearing, an item addressing one of those petitions was placed on circulation and approved by the commission. But it shouldn’t take an inquiry from Congress to get us moving on a petition that has been pending since the 20th century,” said Pai.

Parties might not like the answer they hear, but they deserve one, he said, noting that someone said to him recently, “Tell me yes, tell me no, but just tell me.”

He does take note where the commission has improved. For example, commissioners are voting on items more quickly after they are placed on circulation and the time between the adoption and the release of an item has been reduced.

But there’s room for improvement, like streamlining the commission’s processes where possible, such as expanding the categories of small transactions that qualify for speedier reviews.

Statutory deadlines need to be taken more seriously rather than just extending the deadline, which happens in many cases now, he believes. Pai also suggests establishing internal deadlines such as: enacting a 180-day shot clock for reviewing transactions, acting on petitions for reconsideration and applications for review within nine months and on waiver requests within six months. Acknowledging that the agency often doesn’t meet deadlines set by the agency itself, as opposed to a deadline set by Congress, Pai suggests adjusting those internal deadlines if they’re not realistic.

Once the agency has all these new deadlines, the commission should make it easier for the public to know how long it takes the FCC to do its work. He cites what Michigan’s Gov. Rick Snyder did when he took office in 2011 — he created a webpage called the “Michigan Dashboard.” It measures the state’s performance on several metrics. The FCC can do something similar, suggests Pai.

Pai also called on lawmakers to reduce the seven annual reports plus a triennial report the agency needs to file with Congress, saying they consume time and, in many cases, are not read. He supports the FCC Consolidated Reporting Act that passed the House last year. The measure would consolidate all of the commission reports into a single document to be filed every two years. Pai hopes the measure will soon become law.

Similarly, the commissioner supports a House measure passed last year that sets a three-year shelf life for the FCC to act on a Notice of Proposed Rulemaking. If the agency hasn’t acted within that time, “the NPRM would turn into a pumpkin, and we would be required to issue a new one before adopting rules on a particular subject,” he says.

The FCC could also use some help in updating the Government in Sunshine Act, according to Pai. We’ve reported the act prevents more than two commissioners at a time from discussing a topic in play. What that leads to, Pai says, is the commissioner’s staffers meeting to discuss a topic or exchanging proposals over email or “commissioners hold a string of one-on-one meetings or phone conversations.” He’s recently wondered what would happen if all the commissioners could actually meet in one room to try to hammer out a deal.

The current process for decision-making is so opaque it’s even difficult for the commissioners themselves to tell what’s going on, according to Pai. He supports a recently-introduced bill to allow a bipartisan majority of the commissioners to meet and discuss issues face-to-face.

 


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