Chairman Pai Begins FCC Reform

New FCC Chairman Ajit Pai has wasted no time changing things at the FCC, instituting several process reforms.

On process reforms, the new Chairman has instituted a pilot program to increase the transparency of Commission rulemaking proceedings and draft orders being submitted for a Commissioner vote. The program involves the release of the full text of documents that are being circulated to other Commissioners for a vote at an upcoming meeting. In the past, those drafts have been circulated internally but not made available until after the final vote. With the new pilot program, Chairman Pai hopes to increase the public’s understanding of the FCC’s decision making process and end up with final rules that better serve the public interest.

A later tweak to this process reform added a provision that the Chairman’s office will not discuss the content of items to be considered at an open meeting publicly before those items are shared with the other Commissioners. Two additional tweaks included the adoption by Chairman Pai of a suggestion from Commissioner Clyburn that a one-page summary of an item released prior to the open meeting be included with the proposed text of an order, and one from Commissioner O’Rielly requiring that any substantive edits to an item be proposed by a Commissioner, not a staff member. At its February 23^rd Open Meeting, the editing issue was already being addressed in language both by presenting Bureaus and the Chairman, as items were proposed and or adopted subject to “non-substantive edits or changes” by the applicable Bureau.

Commissioner O’Rielly has separately proposed a change to the way that the Commission delegates powers to the various FCC Bureaus, noting that in 2016 alone, he voted on 167 items but that more than nine times that number of items were decided on delegated authority by the Bureaus. He believes that Commissioners should have a greater say even when a Bureau acts on delegated authority in order to prevent abuses and unnecessary delays. He has asked for delegated authority changes to (i) give Commissioners at least 48 hours advance notice that is to be decided by Bureau staff under delegated authority to allow sufficient time for a determination as to whether an item should be acted upon by the Commissioners instead, (ii) any two Commissioners could call for an item to be voted upon by the full Commission, (iii) such a vote occur within seven calendar days, (iv) and if a requesting Commissioner did not vote by the deadline, the lack of a vote would be deemed an approval of the item, avoiding delays and eliminating the need for stakeholders to appeal a Bureau level item to the full Commission.

While Commissioner O’Rielly’s proposal has not been adopted, it may well be in coming weeks. We expect additional reforms as Chairman Pai seeks to make the Commission’s processes more open to the public and aligned with the public interest.