An opportunity to make transparency the norm at the FCC

On Feb. 26, the Federal Communications Commission (FCC) voted to regulate Internet service providers under Title II of the 1934 Telecommunications Act, but the public still isn’t allowed to see the text of the decision. Such secrecy has quickly led to a firestorm of conspiracy talk.

But there’s no conspiracy here. Voting on secret texts and delaying the publication of orders is business as usual. It’s been standard operating procedure under both Democratic and Republican FCC chairs for decades.

{mosads}And that’s precisely the problem: Lack of transparency is so normal that the agency can’t imagine it any other way. Those learning about this process for the first time, however, find it peculiar and problematic. Perhaps one good outcome of this public awareness is that it will cause the FCC to embrace the opportunity to improve transparency, rather than reflexively defend its habit of keeping this part of rule-making hidden away.

Currently, the FCC votes on rules at so-called “open meetings.” And yes, the meetings are open to the public, which, theoretically, makes the FCC more transparent. But because public cannot actually read the rule the commission is adopting and therefore cannot know if the commission changed any parts of the rule between the vote and publication of the rule, the FCC’s open meetings are little more than a “mummer’s farce,” as George R.R. Martin might say.

The FCC is trying to defend this process. The agency’s general counsel, Jon Sallett, argued in a recent blog post that delays are necessary because the commissioners voting in favor need time to respond to dissenting opinions and because the agency needs time to do “final proofreading and nonsubstantive ‘clean up’ edits.” He implies that the Administrative Procedures Act (APA) leaves the agency with no choice but to keep the text secret until some undefined time after the vote.

But the APA requires no such delays. If it did, then every administrative agency would behave that way, and they don’t. In fact, in the past, even the FCC didn’t operate this way. In a recent paper, I collected data on every FCC vote back to the agency’s founding in 1934. The data show that until the 1970s, rules were released either the day of the vote or the following day.

It is true, as Sallett’s blog post implies, that longer delays occur when commissioners dissent. But even major orders approved unanimously are not released for an average of 10 days after the vote. Meanwhile, the number of paragraphs in an order is not correlated with the length of the delay, suggesting that “clean up” edits contribute little to the delay time.

Perhaps most importantly, however, Sallet’s points justify delay only because everyone expects delay. In other words, negotiations among commissioners continue, dissents don’t get written and edits are not done until the last minute precisely because everybody expects the process to extend beyond the vote. If commissioners knew that the actual text they were voting on would be final, they would all have their ducks in a row before making a decision. And if they don’t, the vote itself should be delayed.

The FCC shouldn’t have to defend a delay on this particular vote. After all, that’s how the commission has done things for decades and there’s no reason to expect this time to be different.

But it doesn’t have to stay this way.

Changing such a deep-rooted institutional process won’t be easy, but it can be done. Perhaps a good place to start would be to release unanimous orders immediately after the vote. Then, as staff and commissioners get used to having everything finished by the time of the vote, it should be easier to incorporate dissents into the pre-vote process.

FCC Chairman Tom Wheeler should seize this opportunity to fix this flaw in the FCC’s rule-making process and cement a legacy of promoting transparency.

Wallsten is vice president for research and senior fellow at the Technology Policy Institute.