Rulemaking: Timing is Everything
Last week’s GAO report, “FCC Should Take Steps to Ensure Equal Access to Rulemaking Information,” didn’t have too much impact. All the telecommunications “stakeholders” with offices in Washington, D.C. know how things work.
Rulemakings go on indefinitely. They start at some point, these proceedings, and then they just keep going. There may be interim rules, notices of further proposed rules, requests for additional information, any number of other filings. There are deadlines for comments on particular pieces of paper, but the process keeps rolling and doesn’t have to be completed by any particular date.
But timing is everything. When the Chairman is ready to put an order on the public agenda, he circulates a draft to the other commissioners. This usually happens about three weeks before the public meeting - and about two weeks before the agenda for the meeting is released to the public. Once the agenda is public, a “Sunshine Period” begins during which no one can lobby the commissioners. Here’s the GAO:
FCC officials told us that, for stakeholders to successfully make their case before FCC, “timing is everything.” Specifically, if a stakeholder knows that a proposed rule has been scheduled for a vote and may be voted on in 3 weeks, that stakeholder can schedule a meeting with FCC officials before the rule is voted on. In contrast, a stakeholder who does not know that the rule is scheduled for a vote may not learn that the rule will be voted on until the agenda is announced 1 week before the public meeting.
At that point, a week before the meeting, no one is allowed to lobby.
Stakeholders other than those representing consumer and public-interest groups hear about scheduled votes in advance. Remember the first part above - these rulemakings go on without tight deadlines. Advance knowledge that a vote is coming up is supposed to be nonpublic FCC information. No one is supposed to know outside the FCC. But that’s not how things have worked at the FCC. Here’s the GAO again:
[S]takeholders who generally represent consumer and public-interest groups, told us that they do not know when FCC is about to vote on a rulemaking or when it would be best to meet with FCC staff to make their arguments.
By contrast, it’s likely that large organizations will know about the scheduled vote:
Several stakeholders told us that they learn which items FCC is about to vote on even though that information is not supposed to be released outside of FCC. . . . [N]ine stakeholders. . told us that they hear this information from both FCC bureau staff and commissioner staff. One stakeholder — representing a large organization that is involved in numerous rulemakings — told us that FCC staff call them and tell them what items are scheduled for a vote.
FCC isn’t playing fair — but we knew that. If you don’t know about a vote, you’ll lose your chance to lobby when it matters. The GAO report sharply criticizes the FCC:
Situations where some, but not all, stakeholders know what FCC is considering for an upcoming vote undermine the fairness and transparency of the process and constitute a violation of FCC’s rules. Since the success of lobbying for a particular issue can be highly dependent on whether an issue is being actively considered, FCC staff . . could be providing an advantage to some stakeholders, allowing them to time their lobbying efforts to maximize their impact.
The GAO gave FCC a draft of their report, but FCC had nothing to say about it.