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Monday, February 25, 2013

Longer waits, more secrecy

Did you catch what the new FCC Commissioner Ajit Pai said to the Federal Communications Bar Association?  Yeah, me neither.  Fortunately, the FCC published his speech.

The focus of his remarks?  The FCC needs to respond more nimbly.  Hear! Hear!  And here are my ill-considered thoughts on his remarks:
  1. In describing the need for reform, he mentions two appeals that had been pending for over 8 years that were resolved last summer after complaints from Congress.  I wondered if they were E-Rate appeals, and I found two that fit the bill.  
    1. The denial of Graydon Manor's appeal.  In August 2012, the FCC denied a Request for Reconsideration filed in October 2002, because it was received 2 days late.
    2. The approval of ICN's appeal.  In August 2012, the FCC approved an appeal that was filed in December 2001.
  2. "First, the Commission should streamline our internal processes where possible."  Who wouldn't agree with that?  He does offer some specifics, but they don't seem to apply to the E-Rate, unless the full Commission has been sitting on WCB recommendations concerning E-Rate appeals.
  3. "Second, we need to start taking statutory deadlines more seriously."  Anyone who's been reading this for a while has heard this rant from me since 2011.  In fact, if you clicked on either link under Item 1 above, you got a couple of episodes of that rant.  According to statute, all appeals of USAC decisions should be decided in 90 days. 
  4. "And 90-day extensions should require a vote of the full Commission."  They used to, but the custom seems to have been abandoned in 2005.  To really keep this going would require an embarrassingly large list of appeals to be held over every 90 days.
  5. "Third, in addition to statutory deadlines, we need to establish internal deadlines where we don’t yet have them.... Let’s institute a nine-month deadline for acting on petitions for reconsideration and applications for review. And let’s set a six-month deadline for ruling on waiver requests."  Deadlines are good, but did he just suggest relaxing the deadline for requests for review of USAC decisions from 90 days to nine months?  
  6. "For instance, the 90-day timeframe for reviewing actions of the Universal Service Administrative Company is rarely met because it doesn't give the Wireline Competition Bureau enough time to review the record. But if the deadlines we set for ourselves are unrealistic, we need to adjust them, not get rid of them or ignore them."  Dang, he is talking about tripling the amount of time allowed for deciding appeals.  And just when they were starting to hit the 90-day mark fairly often.
  7. "That’s like opposing motherhood, apple pie, or the Kansas City Chiefs."  And we know the Chiefs don't need any opposition, because they beat themselves every game.
  8. "Due to the Sunshine Act, those deliberations can’t take the form of a simple conversation or meeting involving more than two Commissioners. Instead, our staffers meet to negotiate or they exchange proposals over e-mail. Or the Commissioners hold a string of one-on-one meetings or phone conversations that come to resemble the childhood game of Telephone."  No, you can't blame that on the Sunshine Act.  Blame it on the Commissioners who want to hold deliberations in secret, and are willing to go to ridiculous extremes to avoid holding a conversation in public.  Rather than hamstringing the Sunshine Act, let's strengthen it: don't allow commissioners to speak even one-on-one except in public meetings.  Somehow we need to force public officials to conduct the public business in public.
  9. "Recently, I've wondered what would happen if my four colleagues and I could all get together in a room and try to hammer out a deal."  In order to continue a time-honored tradition of American politics, let's make the meeting room a smoke-filled back room.

Wait, so the two proposals that seem to affect E-Rate will be:
  1. The deadline for deciding appeals will be tripled.
  2. Commission deliberations will take place in secret.  Just what this program needs: more secrecy.
Well that's a major disappointment.

1 comment:

  1. As I was explaining the appeal process to a client's lawyer, it occurred to me: Say, if the FCC's response to failing to meet their own appeal deadlines is going to be to expand those deadlines, how about extending the appeal deadlines for applicants, too? If the FCC is going to give itself 9 months to decide appeals, how about giving applicants that long to submit one? I mean, I can point to plenty of late-filed appeals that demonstrate that "the deadlines we set ... are unrealistic." See my links under Items 1 and 3 above.