FCC Under Pressure to Make More Drafts Available After Circulation

Broadcasters have been particularly critical of the FCC recently for failing to release drafts of controversial orders, while being more transparent with low-impact, less-divisive orders.

A March 20 news release laid out some 5G Fund details. Wireless industry groups have been making the rounds at the agency since, some seeking details.

Former Chairman Ajit Pai was the first to make drafts public three weeks before a commissioners' meeting. Pai released two drafts as a pilot project before the February 2017 meeting (see 1702020051). He made all items available before the March 2017 meeting (see 1703030052).

Pai said at the time, releasing drafts made meeting items transparent for everyone, not just “lobbyists with inside-the-Beltway connections.” Rosenworcel continued the practice. Some defend treating non-meeting items differently. The FCC doesn't release drafts of enforcement items or any that must be approved by commissioners before being made public.

“While it isn't feasible to include all matters under consideration by the Commission on meeting agendas, the items of greatest interest to the public are typically decided at open meetings,” an FCC spokesperson said in an email. Recent orders on cable all-in pricing and early termination fees are examples of high-profile Media Bureau items on meeting agendas, the spokesperson said: Voting items on circulation is usually reserved for more routine and lower-profile actions, but when higher-profile rules are voted on circulation, the agency issues news releases to announce them.

No other federal government agency releases items prior to a vote the way the FCC does, said Public Knowledge Senior Vice President Harold Feld. Meeting items are different from others in that they almost always get a vote in a matter of weeks -- at or just before the open meeting, Feld noted. “Items on circulation might wait months and undergo significant changes based on negotiations among the commissioners and the chair,” he said: “Or they may never get voted at all. So there is sufficient difference between the two … to warrant treating them differently.”

Others say the FCC should release drafts of all major items if possible.

Mike O’Rielly, who focused part of his time on process when he was a commissioner, told us it’s time for the FCC to also start releasing drafts for non-meeting items. “It’s undeniable that making meeting items public made the FCC process better and appropriately informed the public,” he said. “Doing the same for circulation items by making the items public when first circulated, or very soon afterward, is absolutely necessary for public input and to remove gamesmanship,” he said.

Allowing current processes to continue, especially on major items, “is an affront to democratic institutions and undermines trust in the agency,” O’Rielly said.

“It would be in the public interest” to make items on circulation public “with only a few exceptions,” Cooley’s Robert McDowell, also a former FCC member, said in an email. “Transparency is fundamental to the due process mandate underpinning administrative law, and it would serve everyone well.”

Kristian Stout, director-innovation policy at the International Center for Law & Economics, said without text it’s difficult to form “strong opinions” on the 5G Fund. “When there are items like this under consideration there is no good reason not to release them to the public as they are being considered,” Stout said.

Broadcast Items

In recent months, the agency voted two long anticipated broadcast orders -- the equal employment opportunity order in February and the 2018 quadrennial review in December -- on circulation, without public drafts. Meanwhile, many recent broadcaster-focused items that make the meeting agenda and have public drafts are often so noncontroversial that they are quietly unanimously approved before the meeting starts.

In 2023, only two non-enforcement meeting items focused on broadcasting weren’t later the subject of pre-meeting deletion notices: an item on audio description in March and a July order authorizing FM6 broadcasting for 14 low-power TV stations. Recent meeting items that concerned broadcasters, such as March’s event code for missing and endangered people, drew almost no ex parte traffic in the three weeks after being announced (see 2403080049), while an item on broadcasters airing foreign-sponsored content has drawn six NAB filings since it was circulated in February (see 2403210071).

FCC officials raised concerns ahead of both the EEO item (see 2401260075) and the 2018 QR order (see 2312210081) that the agency’s Republican commissioners might delay them under the “must-vote” rules, which allow commissioners to take weeks before voting a circulated item. Those rules don’t apply to meeting agenda items, so if the EEO order or the 2018 QR order was slated for meetings all the commissioners would have had to vote, limiting the opportunity to delay those orders, a broadcast industry official said.

Not having access to draft items makes it harder for regulated entities to provide the FCC with useful feedback, said Wiley partner Kathleen Kirby, who represents broadcasters. The agency has well-informed staff, but that isn’t the same as boots on the ground, she said. “It benefits both sides to have the facts out there,” Kirby said. “Sometimes, you can't arrive at that compromise place that works for both sides, but at least you have the opportunity to try.”

The agency should release drafts for all items on circulation, not just meeting items, NAB said. “Publishing draft regulations was a significant step toward transparency and efficiency,” said an NAB spokesperson. “Adopting this method for all rulemakings would curtail any potential manipulation of the system, ensuring substantive issues receive the attention they deserve.”

When item drafts aren’t available, regulated entities work with piecemeal information that may not be accurate, Kirby said. That process also disadvantages those without FCC contacts or insider information, such as smaller entities or new entrants.

New Street’s Blair Levin noted that what gets released, and when, has always been up to the chair. Whether other details surface depends on the discretion of commissioner staffers “or lack thereof,” he said.