Yesterday, the Subcommittee on Communications and Technology for the House Energy and Commerce Committee held a hearing on “Oversight of the Federal Communications Commission” (FCC). All five FCC commissioners were called to and did testify.

Background

Before getting into yesterday’s hearing it is important to understand the FCC. The FCC is directed by five commissioners appointed by the President and confirmed by the Senate. Unless filling an unexpired term, each commissioner is appointed for a five-year term. The President designates one of the commissioners to serve as chairman. Only three commissioners may be members of the same political party.

The current makeup of the FCC is as follows:

 Chairman: Tom Wheeler (D)

Commissioner: Jessica Rosenworcel (D)

Commissioner: Mignon Clyburn (D)

Commissioner: Michael O’Rielly (R)

Commissioner: Ajit Pai (R)

 The Testimony

The testimony was diverse and revealing. Chairman Wheeler touched on various policies, proposed rules, and enforcement actions the FCC has taken or has announced plans to take during recent months.

Commissioner Clyburn spoke to the importance of not only competition, but also community. “The FCC and Congress have a duty to expand broadband connectivity and close the digital divide through programs like Lifeline”, she said. Per the FCC website, “Lifeline” is a program that provides a discount on phone service for qualifying low-income consumers to ensure that all Americans have the opportunities and security that phone service brings, including being able to connect to jobs, family and emergency services.

Commissioner Rosenworcel supported Clyburn’s comments about Lifeline. She talked about how the future relies on “connectivity” and how bridging the “homework gap” remains one of her highest priorities.

However, the two Republican Commissioners chose to focus on how the current FCC operates. Both testified that the current FCC “process” was not working.

Commissioner Pai was highly critical of how the FCC has been run under Chairman Wheeler’s tenure. He pointed to the following:

“First, the FCC continues to be run in a partisan fashion. Since December 2013, there have been 20 separate party-line votes at our monthly meetings.  That’s twice as many as under Chairmen Martin, Copps, Genachowski, and Clyburn combined.  Proposals from Republican Commissioners have been roundly rejected as crossing a “red line,” even when an identical proposal from a Democratic Commissioner is accepted later on.  And requests by Republican Commissioners to increase transparency or amend a proposal are routinely ignored, which means the Commission regularly adopts orders without any official response to our requests.

Second, collaboration has fallen by the wayside.  During my first eighteen months on the job, every Commissioner worked to reach consensus.  That maximized the chance that every Commissioner could vote for a proposal or order.  Under Chairman Genachowski and Chairwoman Clyburn, we reached consensus 89.5% of the time on FCC meeting items.  I can assure you that we did not always start out in the same place.  But we worked hard to reach agreements that everyone could live with.  And we usually succeeded.

It’s far different now.  All too often, softening the rough edges of an order to make it more palatable is off the table.  Narrowing the scope of a decision to achieve unanimity is rejected outright.  Indeed, consensus among the Commissioners no longer appears to be a goal.  Instead, the “rule of three” is the new norm.  Unsurprisingly, then, unanimity has precipitously dropped at the agency.  Commissioners have been able to reach consensus on only 56.4% of our monthly votes during Chairman Wheeler’s tenure.

Third, the FCC continues to choose opacity over transparency.  The decisions we make impact hundreds of millions of Americans and thousands of small businesses.  And yet to the public, to Congress, and even to the Commissioners at the FCC, the agency’s work remains a black box.

Commissioner O’Rielly’s testimony had a similar theme. He too spoke about a broken process and lack of transparency.

“Today, Commissioners do work together on certain issues – and I hopefully play some role in our bipartisan agreements.  However, the Commission is often fragmented, which is especially noticeable for the larger ticket items.  For instance, while I maintain a voting record of approximately 90 percent with the Chairman for circulated items, the percentage of open meeting items on which I have agreed is only approximately 65 percent.  That is up slightly from 62 percent a year ago, likely due to a recent effort to include one non-controversial item on each month’s agenda.  A significant reason for disagreements can be traced to procedural fouls that are unnecessary, unwise and harmful.

The Commission continues doing business as usual with all the corresponding difficulties.  We continue to see problems month after month stemming from the fact that the proposals we vote on are hidden from the public until it is too late for meaningful input.  In order to address this concern, it has now become a ritual for the Chairman’s office to release a one- or two-page, often inaccurate or misleading, “fact” sheet purporting to describe the details of each major proposal, along with one or more prose versions of the same talking points in the form of a press statement or blog post.

These hand-selected tidbits comprise all the information stakeholders, including the American people, are given every month when attempting to engage with the Commission on complex issues from expanding Lifeline to setting the rules for the upcoming spectrum incentive auction.  The predictable result is confusion and misdirection, frustrating all involved, sometimes including the Chairman himself.

Further, the timing of when Commissioners actually get documents is problematic as it has become standard procedure for the Chairman’s staff to provide off-the-record briefings to favored reporters days before an item is circulated to Commissioners. The day of circulation, a major press roll-out occurs complete with press releases, blogs and “fact” sheets, but the actual document under consideration doesn’t hit my inbox until hours later, sometimes late at night. Meanwhile the press is reporting that the item has circulated and asking for comment.”

insideARM Perspective

Based on the testimony of O’Rielly and Pai, it appears that Chairman Wheeler regularly ignores the 2 Republicans on the commission, denies them access to basic information and refuses any negotiation whatsoever. That is not a healthy environment for collaboration.

Though not specifically referenced by Commissioners O’Rielly and Pai, their prepared remarks provide great insight into how and why of the FCC’s July, 2015 TCPA Omnibus Declaratory Ruling and Order. That Order showed little sign of compromise or collaboration.