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O’Rielly Challenges FCC on “Delegated Authority”

Commissioner renews his push to revise a common practice

Here’s a topic that sounds kinda dry yet touches on much of what the Federal Communications Commission does. Commissioner Michael O’Rielly feels strongly about changing it; now with the new political landscape in Washington he’s hoping to make more progress.

The discussion has to do with what’s called “delegated authority.” O’Rielly has argued before that the commissioners as a body tend to hand off “way too many substantive decisions” to bureau staffers. “Consider that in 2016 I only voted on 167 items, but almost nine times as many were decided on delegated authority.” This practice, he says, usurps the role and obligations of the commissioners.

Earlier, he sought to change the rules so that any given commissioner could “undelegate” any item and call for a full vote; but he says the staff of former Chairman Wheeler argued against it on the grounds that it could lead to “chaos and dilatory tactics,” in O’Rielly’s words. So he suggested a revised approach. That didn’t go anywhere but now he’s putting renewed focus on it. “It seems appropriate to see if it may be agreeable in this new commission,” he writes in a blog post. His suggestions:

-Commissioners, O’Rielly thinks, should have a minimum of 48 hours to review all items that are to be decided by bureau staff. Some decisions work that way now, but he said the practice was not uniformly applied.

-If two commissioners are troubled by the substance or process of an item, it would trigger the “undelegated” step. “While I wouldn’t necessarily have a personal problem voting more often, I can see why some may find a one-commissioner trigger problematic.” Accordingly, the threshold to bring an item up to the floor for a vote should be set at two commissioners.

-To avoid excessive or needless delays, he suggests that any item that is removed from delegated authority under these procedures must be voted by the full commission within seven calendar days or five business days “although I might be willing to live with a shorter deadline.”

-And if a requesting office does not vote by the deadline, the item would be — at the chairman’s prerogative — either released as approved by the full commission (assuming other offices voted to approve) or sent back to the bureau for immediate issuance on delegated authority. “In other words, a requesting commissioner that does not vote by the deadline risks the possibility that their failure to act would be deemed an approval and the item would be disposed of by the full commission.” He said this also would shorten the procedural path to obtain a final decision by eliminating the need for stakeholders to “appeal” the bureau-level item to the commission by filing an application for review.

O’Rielly says his approach seeks balance between the need to allow commissioners to have greater say in the workings of the FCC and preventing process abuses and unnecessary delays. “Fixing the overuse of delegated authority should be high on our list of priorities as the new commission examines internal process reform.”