Industry Advocates are Throwing Shade at the FCC’s Transparency Pilot

In her highly acclaimed song “Ironic,” Alanis Morissette listed off a litany of unfortunate events. Although most of the scenarios she lists are more coincidence than irony, some of the more apt examples range from a 98-year-old man dying the day after winning the lottery on his birthday to a patron receiving a free ride after he had already paid. Something she might also find ironic is when a certain industry group that often advocates for more transparency in agency proceedings[1] (for transparency’s sake, it’s Free Press) takes issue with an agency adopting reforms to that effect. If Ms. Morissette wanted to amend her song’s lyrics, she might find that Free Press’s response to the Federal Communications Commission’s (FCC’s or Commission’s) pilot program would serve as a source of inspiration.

Recently, the Commission initiated a pilot program oriented towards making its internal procedures more open to the public. Critics of the action contortedly claimed that somehow the FCC shedding more light onto its internal operations would increase the Commission’s favoritism to “in the know” lobbyists and make its rulemaking process more arduous. Regardless of the added procedural burdens that may ultimately result from FCC Chairman Ajit Pai’s pilot, this type of advocacy for less transparency at the FCC is troubling.

By way of background, Chairman Pai has long been a critic of the Commission’s habit of hiding the ball on rulemakings and other proceedings under previous administrations. A concerning feature of previous FCCs was the practice of keeping final rules, orders, and other items nonpublic at critical junctures and for long stretches — sometimes until long after receiving a Commission vote and becoming official. This practice denied the public a chance to see the final product — which is often substantially different from draft versions — before the Commission vote, which is the final step in the process. Simultaneously, it afforded FCC leadership significant flexibility in sneaking changes that were known to be controversial or unpopular into draft items before they crossed the finish line.[2] On February 2, 2017, Chairman Pai announced in a press release his plan to give the public more insight into the Commission’s actions. The Chairman intends this pilot to help better educate the public by providing the text of its proceedings before the Commission votes on those items. Thus, he is attempting to increase informed participation by the public in prospective FCC proceedings.

The Chairman’s statements regarding the pilot program make this evident. In that same press release, Chairman Pai stated, “I want this Commission to be as open and accessible as possible to the American people. I want us to do a better job of communicating with those we are here to serve.” Moreover, the Chairman then put his money where his mouth was and immediately released two draft items that the Commission was set to vote on in its Open Meeting later in February. Although most stakeholders generally applauded the Chairman’s move, some were not too thrilled about the change.

Out of the dissenters of the Chairman’s pilot program, Free Press was among the more vocal. It cautioned of the dangers posed by an overly informed lobbyist.[3] In his criticism, Free Press Policy Director Matt Wood worries that the availability of an item before it receives a vote will trigger an increase in last-minute advocacy from well-resourced lobbyists who read the text. Then he worries that the pilot might result in further comment opportunities: “Where is the circuit breaker on this infinite treadmill?” he asks.

The irony of criticisms like these is twofold. First, many of these dissenters are well-funded lobbying organization that boasted a staggering win rate under Chairman Wheeler. They are precisely the type of well-funded organizations that can respond quickly to published items with smart, organized arguments. Second, in prior advocacy for transparency, almost all of these organizations have been more than willing to sacrifice the incidental procedural impacts that result from increased transparency.

I can stipulate that allowing advocates to read an item prior to a vote will probably result in the Commission receiving last-minute requests from those who disagree. This is true at any step of the process: a regulatory proposal generates a response from those it might impact. But apparently for some of these organizations, the incidents of transparency are suddenly insurmountable under a different FCC chairman. Moreover, the genesis of the concern that Chairman Pai will impose additional comment periods is a mystery. The Chairman’s statements never mentioned adding comment periods to the Commission’s rulemaking process, nor does this result seem likely given other actions the Chairman has taken to simplify that very process (e.g., adding a short cover page to FCC proceedings concisely summarizing the contents therein).

This gets to the overarching question: What would these organizations prefer? The Chairman appears to be genuine in his attempt to show everyday citizens what is behind the curtain at the FCC. If more lobbyist activity is truly one of their concerns, then the onus is on those who disagree with the Chairman to demonstrate how that group is materially advantaged when every person (lobbyist or not) will have equal access to the same information. If anything, this reform takes some of the wind out of K Street’s sails by making this information more accessible to citizens not generally apprised of the Commission’s rigmarole. Do the disagreeing organizations prefer more “closed door” deals if it means streamlining the process?

I believe advocates in this space should welcome these reforms and encourage the Commission, and agencies at large, to become more transparent and open to Americans outside the beltway. As Thomas Jefferson once said, “The cornerstone of democracy rests on the foundation of an educated electorate.” Reforms such as the one implemented by the Chairman reinforce that foundation. So let us not throw shade, but step out of it together.

[1] E.g., Tell the FBI: Keep Accepting FOIA Requests via Email, Free Press http://act.freepress.net/sign/journ_foia_request/?source=website_action (last visited March 9, 2017) (writing “Given the Trump administration’s hostile attitude toward the press and activists, we need our government to be more transparent, not less.” Emphasis added).

[2] E.g., In the Matter of Protecting and Promoting the Open Internet, GN Docket №14–28, 30 FCC Rcd. 5601 (2015) (3–2 decision) (Pai, A. dissenting) (writing “The backers of the President’s plan know this. But they also know that the details of this plan cannot stand up to the light of day. They know that the more the American people learn about this plan, the less they like it. That is why this plan was developed behind closed doors at the White House. And that is why the plan has remained hidden from public view.”)

[3] Howard Buskirk & Monty Tayloe, Release of Draft FCC Items Mostly Praised but Also Raising Some Concerns. CommDaily, Mar. 6, 2017.

I am a JD with 5 years of experience in advancing telecommunications and cybersecurity law and policy. I have advised Congressional members, commissioners and staff at both the Federal Communications Commission and Federal Trade Commission, and private companies on issues concerning: Universal Service Fund programs, jurisdiction over Internet commerce, intellectual property, cybersecurity, and general regulatory scope for federal agencies based on Congressional delegation. I am also a published author in an academic journal on the topic of FCC jurisdiction over laser communication entities; found here:http://www.ipbrief.net/wp-content/uploads/2015/09/FULL-PDF-6.2-FINAL.pdf.

LinkedIn: www.linkedin.com/in/joelthayer

All views expressed here are my own.