McDowell Says More Reforms Needed at FCC

Meanwhile, several officials said Tuesday that Copps appears to be making the right moves so far in promoting greater openness at the FCC. But it’s unclear what orders, if any, the FCC will take up at its Feb. 5 meeting, agency officials said. Copps has scheduled for Monday the first of a promised series of weekly chairman’s office meetings to take reports on activities at different parts of the FCC, to be attended by advisors for the other commissioners.

McDowell, who’s expected to speak at greater length about FCC reform at an FCBA lunch next week, told Copps he appreciates “the new atmosphere you are creating at the Commission, and I know that the FCC’s talented and dedicated career employees appreciate your efforts as well.”

McDowell called for an audit of the FCC, the Universal Service Administrative Co. and various federal advisory committees. “As with all FCC reform endeavors, I hope that all of the commissioners will be involved in this process, including its development and initiation,” McDowell wrote. “We should seek comment from the public and the Commission staff, and we should provide Commission employees with an opportunity to submit comments anonymously.”

McDowell also said the FCC should update and republish its strategic plan. “Completing this task would create a solid framework for future actions and demonstrate our commitment to transparency and orderliness, each of which is critical to effective decision making,” he wrote. “The findings of our review, combined with our work to develop a new strategic plan, would provide us with the information and ideas necessary for considering a potential restructuring of the agency.”

McDowell said he supported efforts for greater openness at the FCC and encouraged Copps to publish meeting dates for all of 2009. Under Martin, meeting dates were generally released on a month-by-month basis and dates changed frequently. “We agree that we need to overhaul our internal information flow, collaboration and processes,” he added. “I am eager to continue to work with you and Commissioner Adelstein to identify and implement measures to increase coordination among the commissioner offices, between commissioner offices and the staff, as well as among the staff.” McDowell also encouraged Copps to delegate more decisions to senior staff.

Industry officials said Tuesday they are in general pleased with the changes already instituted by Copps. “It is very encouraging and I do believe that Commissioner Copps understands the nature of the agency’s dysfunctionality and cultural limitations,” said Phil Weiser, professor of law at the University of Colorado and an outspoken advocate of FCC reform. “These problems weren’t made … in a day, a week, a year or even more than that. It’s going to take some time and sustained effort to make changes.”

Weiser called for a truth and reconciliation commission of some kind to examine problems at the agency. “It’s important to have sunlight on practices that we want to avoid in the future and build up some antibodies against certain practices,” he said. “It’s not acceptable to give a commissioner an item and say we're voting on it in 24 hours. It’s not acceptable to tell a commissioner you're not going to be briefed on an item until the very last minute so that they're kept in the dark. It’s not acceptable to pull out facts from a last-minute filed ex parte and allow that to be a dispositive basis for a decision.”

“Copps is off to a great start,” said a former FCC official. “Rome wasn’t built in a day and the commission’s processes weren’t taken apart in a day. They'll take some time to be put together too, but you've got to start some place.” The official said Copps’ instruction that bureau staff answer commissioner questions “is not remarkable, except that it wasn’t happening under Martin.” Copps was clear he wouldn’t make major structural changes, leaving that to a permanent chairman. “But that can be a lot of effort for not very much gain, at times,” the former staffer said.

“I think the changes are sincere and the staff are eager to do more and play bigger roles in the process,” said a second former FCC official. “They probably echo what the new administration is trying to accomplish across the board with a more transparent and open process.” A third attorney said, “I think [Copps] did a beautiful job of laying out a course of action that will go a long way to mending both internal and external problems the agency has faced under Martin.”

“Those reforms were all very fine and constructive,” said Art Brodsky, spokesman for Public Knowledge. “I'm sure the reported candidate to be the chairman, Julius Genachowski, will continue them.”

Supporters of an industry proposal to revamp submarine cable system regulatory fees have already felt the effects of a more open FCC, said an industry official close to the proceeding. Although their plan was unopposed since September and won support from all commissioners, supporters were unable to determine its status at the FCC until eighth- floor meetings Tuesday, the official said. At the meetings, supporters learned that Martin’s FCC had drafted an item, but Copps, Adelstein and McDowell didn’t know about it until Copps became acting chairman, the official said. Now supporters expect the draft order to be circulated within two weeks, the official said.

A lack of communication at the FCC “makes it harder to do our jobs,” said Curt Stamp, president of the Independent Telephone & Telecommunications Alliance. Communications breakdowns as the FCC considered a revamp of Universal Service Fund and intercarrier compensation rules made the past few months particularly challenging for the ITTA, he said. During that time, Stamp heard from commissioner offices that the Wireline Bureau was “sequestered” and frequently unresponsive to eighth-floor requests, he said. Meanwhile, the chairman’s office gave little feedback during meetings, he said.

The lack of transparency during Martin’s effort to revamp USF and intercarrier compensation rules made business at the commission “terrifying,” said Dan Mitchell, legal vice president for the National Telecommunications Cooperative Association. Martin’s overhaul proposal wasn’t made public until the chairman received pressure from Congress and the other four commissioner offices. Doors to the bureaus and commissioner offices were open, but Mitchell sometimes had to rely on “hearsay and rumors” to prepare for meetings, he said.

Calls by Copps and McDowell for more decisions to be made by career FCC staff will mean bureau attorneys will gain more latitude in drafting decisions, but also need to spend more time considering various outcomes, said an FCC official. The goal is that draft items will reflect staffers’ statutory interpretations and not the outcome they anticipate a chairman wants, said the official. “Pushing low-priority items back to the staff level will enable the commission to spend more time focusing on truly impactful policies like broadband and spectrum allocation,” said Stanford Group analyst Paul Gallant, an aide to Michael Powell, FCC chairman 2001-2005.

“A bipartisan willingness” for FCC reform among its members makes Gloria Tristani “very optimistic” the changes will stick, she said. “As a former commissioner, things run better, issues are more thoroughly vetted and decisions are better made when all commissioners have access to better information.” Whether Genachowski becomes chairman or not, a more-open FCC is likely in the future, said Progress & Freedom Foundation’s Barbara Esbin, who left the agency in 2008. “The last four years really stand out as an aberration of commission process,” she said. “All of the things that Acting Chairman Copps has called for [are] essentially a return to the status quo of FCC operations in years past.”

“Clearly the Copps speech was a breath of fresh air,” said a wireless industry attorney. “I think its unrealistic to expect too much to happen during an interim chairman’s tenure, assuming it is for just a few months, but this is clearly the right direction.”