Telecommunications: FCC Procedures Delay Release of Decision Documents
(Letter Report, 09/28/94, GAO/RCED-94-242).
Regulatory decisions made by the Federal Communications Commission (FCC)
affect everything from network and cable television programs to
telephone services and rates. Once a vote has been taken by the
five-member Commission, a decision document, such as a rulemaking
published in the Federal Register or a letter in response to a petition,
is released to the public. In response to congressional concerns that
FCC has been taking an excessively long time to release decision
documents after the FCC Commissioners have voted, this report examines
(1) the timeliness of public releases of FCC decisions, (2) whether
FCC's procedures for releasing documents contribute to delays in these
releases and how FCC's procedures compare to those of the Nuclear
Regulatory Commission and the Securities and Exchange Commission, and
(3) FCC's controls to ensure that revisions are not made to decisions
voted on by the Commissioners without their approval. GAO also provides
information on FCC's circulation voting process and on ex parte
contacts.
--------------------------- Indexing Terms -----------------------------
REPORTNUM: RCED-94-242
TITLE: Telecommunications: FCC Procedures Delay Release of
Decision Documents
DATE: 09/28/94
SUBJECT: Independent regulatory commissions
Agency proceedings
Information disclosure
Telecommunications operations
Agency reports
Government publications
Information dissemination operations
Public relations
Comparative analysis
Freedom of information
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Cover
================================================================ COVER
Report to the Chairman, Subcommittee on Communications and Finance,
Committee on Energy and Commerce, House of Representatives
September 1994
TELECOMMUNICATIONS - FCC
PROCEDURES DELAY RELEASE OF
DECISION DOCUMENTS
GAO/RCED-94-242
FCC's Delayed Decisions
Abbreviations
=============================================================== ABBREV
FCC - Federal Communications Commission
GAO - General Accounting Office
NRC - Nuclear Regulatory Commission
SEC - Securities and Exchange Commission
Letter
=============================================================== LETTER
B-257492
September 28, 1994
The Honorable Edward J. Markey
Chairman, Subcommittee on
Telecommunications and Finance
Committee on Energy and Commerce
House of Representatives
Dear Mr. Chairman:
Regulatory decisions made by the Federal Communications Commission
(FCC)--on issues ranging from network and cable television
programming to telephone services and rates--affect virtually every
individual, influence business practices in multibillion-dollar
industries, and frequently engender intense media attention and/or
numerous legal challenges. FCC's decisions are reached by a majority
vote of the five Commissioners on issues that may be discussed and
voted on in open meetings (referred to hereinafter as meeting
decisions) or circulated and voted on privately and individually
(circulated decisions). Once a vote has been taken, a decision
document--such as a rulemaking published in the Federal Register or a
letter in response to a petition--is released to the public.
Concerned that FCC has been taking an excessively long time to
release decision documents after the Commissioners have voted, you
asked us to examine (1) the timeliness of public releases of FCC
decisions, (2) whether FCC's procedures for releasing documents
contribute to delays in these releases and how FCC's procedures
compare to those of the Nuclear Regulatory Commission (NRC) and the
Securities and Exchange Commission (SEC), and (3) FCC's controls to
ensure that revisions are not made to decisions voted on by the
Commissioners without their approval. Included in our response to
these questions is information that you requested on FCC's
circulation voting process. Also, in appendix I we have provided the
information you requested on ex parte contacts.\1
--------------------
\1 Ex parte contacts are any contacts that outside parties have with
the Commissioners and other FCC employees which, if written, are not
served on the parties or, if oral, are made without an opportunity
for all parties to attend.
RESULTS IN BRIEF
------------------------------------------------------------ Letter :1
During calendar years 1990 through 1993, between 7 and 18 percent of
all FCC decisions were released to the public more than 30 days after
they were adopted by the Commissioners. After FCC set a 30-day
release target for meeting decisions in 1991, only 4 percent (three
decisions) in 1992 and 1993 exceeded 30 days to release. The 30-day
target does not apply to circulated decisions, and during 1990
through 1993, the percentage of these decisions that were released
after 30 days ranged from 8 to 17 percent.
According to FCC officials, some delay in releasing either meeting or
circulated decisions to the public occurs as a result of
administrative procedures that allow time for final editing. Because
the FCC Commissioners vote on the substance of an issue before
agreeing on the specific language in the decision, some redrafting
may occur after they have voted. The decision document is not
released to the public until this editing is completed. These
procedures differ from those used at NRC, which releases meeting
decisions on the day of the vote and circulated decisions within 10
days. SEC does not have written procedures for releasing decisions,
but the SEC Secretary told us that with few exceptions, decisions are
released within a couple of days of adoption.
FCC does not require retention of the documents needed to determine
whether substantive revisions of the text of decisions occurred after
the Commissioners had voted. As a result, insufficient records were
available for us to evaluate possible changes in the decisions made
during the period under review.
BACKGROUND
------------------------------------------------------------ Letter :2
Drafts of pending FCC decisions are written by staff from one of
FCC's offices or bureaus, such as the Office of Engineering
Technology for technical matters or the Mass Media Bureau for
television and radio issues. The decision draft sets forth the
proposed action and explains the underlying rationale in detail. The
Chairman decides whether the Commissioners will vote in public (a
meeting decision) or in private (a circulated decision). The
Chairman may call for a circulated vote when (1) no meeting is
scheduled imminently, (2) an emergency situation exists, or (3) an
item is considered to be routine and discussion by the Commissioners
is not anticipated. Otherwise, the Chairman calls for a meeting
vote. Any Commissioner may request a meeting vote for any item.
According to FCC's Associate and Assistant General Counsels, the
Commissioners generally get a decision draft before a meeting and may
have informal discussions on (between, at most, two Commissioners)
and make editing changes to the draft before it is presented for
vote. On a few occasions, the Commissioners have voted on a summary
document, which establishes what is being discussed but is not a
draft decision. FCC releases, on the day of each Commission meeting,
a detailed summary of each item on the Commission's agenda. After
the Commissioners have voted, the draft decision is reviewed and
revised, if nececssary, by the Commissioners, their staffs, and the
responsible FCC office or bureau. Once revisions are completed and
the document has been reviewed by the Office of General Counsel, the
decision is released to the public.
For several years, congressional overseers considered the length of
time between the Commission's adoption of a decision at a public
meeting and its subsequent release to be inordinately and
unacceptably long and to be a burden on the parties to the
proceedings and the public, who had to wait to determine the full
ramifications of the Commission's action. In May 1991, congressional
concerns focused on indefinite delays caused by extensive
modifications to drafts of decisions already voted on and on the
possible impairment of the FCC's decision-making process when the
Commissioners do not vote on an actual decision draft. As a result,
the Chairman of the House Energy and Commerce Committee instructed
FCC to address the Congress' concerns about meeting decisions that
were released more than 30 days after the Commissioners had voted.
In response, FCC immediately established administrative procedures to
release items adopted during open meetings within 30 calendar days of
adoption.
SOME FCC DECISIONS RELEASED
MORE THAN 30 DAYS AFTER VOTE
------------------------------------------------------------ Letter :3
During the past 4 calendar years--1990 through 1993--FCC released
1,988 decisions, including 315 decisions on issues voted on in open
meetings and 1,673 decisions voted on by circulation. As table 1
shows, between 7 and 18 percent of all decisions were released more
than 30 days after the Commissioners had voted.
Table 1
Number and Percentage of FCC Decisions
That Were Released More Than 30 Days
After Vote, Calendar Years 1990 Through
1993
Year Number Percent Number Percent Number Percent
------ ------- ------- ------- ------- ------- -------
1990 28 33 50 15 78 18
1991 11 15 29 8 40 9
1992 1 1 82 17 83 14
1993 2 3 38 8 40 7
------------------------------------------------------------
PROCEDURAL CHANGES
SIGNIFICANTLY REDUCED NUMBER
OF MEETING DECISIONS
RELEASED AFTER 30 DAYS
---------------------------------------------------------- Letter :3.1
The number of meeting decisions that took longer than 30 days for
public release dropped dramatically in calendar years 1992 and 1993
to a total of only 3, compared with 28 and 11 in calendar years 1990
and 1991, respectively (see table 1). A similar substantial decline
occurred in the longest time it took to release meeting decisions:
97 days in 1990 compared with 36 days in 1993. (See app. II for
meeting decisions that took the longest.) A former Secretary of FCC,
who served as the official custodian for the Commission's documents
within the Office of the Managing Director, attributed the
improvement in releasing meeting decisions to administrative
procedures that FCC implemented in May 1991. These procedures
established a target of 30 calendar days for releasing all decisions
voted on in open meetings.\2 In order to meet the 30-day target, FCC
began formally establishing and tracking the due dates of edits by
the Commissioners and others, reviews by the Office of General
Counsel, and printing.
Although during 1990 through 1993 a sharp decline occurred in meeting
decisions that were released more than 30 days after being voted on,
the number of decisions that were released to the public in 21 to 30
days increased substantially (see fig. 1).
Figure 1: Timeliness of
Release for Meeting Decisions
(See figure in printed
edition.)
FCC Associate and Assistant General Counsels suggested that the new
procedures may actually increase the length of time for release of
some decisions because FCC puts all meeting decisions on a 30-day
release track--including decisions that might otherwise have been
released more quickly, as well as more slowly.
--------------------
\2 The Office of the Managing Director oversees the agenda process,
makes arrangements for the meetings of the Commission, documents the
results of each meeting, and monitors compliance with the procedures
for the agenda. Within that Office, the Secretary serves as the
official custodian of the Commission's documents and is responsible
for, among other things, scheduling the meetings of the Commission
and ensuring that appropriate staff are available for presentations
to the Commission.
SOME CIRCULATED DECISIONS
CONTINUE TO BE RELEASED
AFTER 30 DAYS
---------------------------------------------------------- Letter :3.2
The 30-day target for release does not apply to circulated decisions,
and compared with meeting decisions, a larger number of circulated
decisions have taken more than 30 days to be released to the public.
As shown in table 1, in calendar years 1992 and 1993,\3 82 and 38
circulated decisions (17 and 8 percent), respectively, exceeded 30
days to public release. The percentage of circulated decisions that
took longer than 30 days substantially exceeded the 1 to 3 percent of
meeting decisions that exceeded 30 days. The release times for
circulated decisions showed an improvement between 1990 and 1993: A
decrease occurred in the length of time to public release for the
decision which took the longest--a drop from 160 days to 116 days.
(See app. III for circulated decisions that took the longest.)
In contrast to meeting decisions, a greater proportion of circulated
decisions were released in two time ranges: 0 to 10 days and 11 to
20 days (see fig. 2). Considering that FCC's criteria for
circulating decisions include both emergency issues that require
immediate attention and routine items, it is expected that a larger
portion of circulated decisions would be released in the shorter time
ranges.
Figure 2: Timeliness of
Release for Circulated
Decisions
(See figure in printed
edition.)
In the 2 calendar years following FCC's adoption of its 30-day target
for releasing meeting decisions, a larger number of decisions were
made by circulation. In 1993, about 87 percent of FCC's decisions
fell into this category, compared with 80 percent in 1990. (See
table 2.) An FCC official observed that the number of decisions that
the Commissioners could consider and make at meetings had remained
fairly constant, but the number of issues they needed to decide
increased; as a result, more of FCC's decisions tended to be made by
circulation.
Table 2
Number and Percentage of Meeting and
Circulation Decisions, Calendar Years
1990 Through 1993
Year Number Percent Number Percent Number
---------- -------- -------- -------- -------- --------
1990 84 20 343 80 427
1991 74 17 359 83 433
1992 83 14 494 86 577
1993 74 13 477 87 551
============================================================
Total 315 16 1,673 84 1,988
------------------------------------------------------------
--------------------
\3 The period of time since FCC established its 30-day release target
for meeting decisions.
FCC OFFICIALS CITE
ADMINISTRATIVE PROCEDURES
RELATED TO EDITING AS DELAYING
RELEASE OF DECISIONS
------------------------------------------------------------ Letter :4
The FCC Commissioners' practice is to vote on a draft decision
document that sets forth the proposed action in detail and explains
the rationale underlying the action. However, in a few instances the
Commissioners vote without a draft decision, although they would have
a summary document that establishes what is being discussed. In
either case, post-vote revisions to the document may be necessary to
incorporate final edits. FCC officials characterize all post-vote
changes as "editorial revisions."
Although the term "editorial revision" suggests nonsubstantive
changes, FCC places no restrictions on the extent or nature of
changes that can be made to the text of an FCC decision between the
time the Commissioners vote on it and the time the decision is
released to the public, other than that no change can be made to the
"bottom line" of any publicly announced decision without another
vote. According to FCC's Associate and Assistant General Counsels,
all substantive changes must be approved by the Commissioners before
a decision is released. Following FCC's procedures, the FCC office
or bureau that prepared the decision is responsible for making all
editorial changes, which must be approved by the Chairman and the
Commissioners. The Office of General Counsel reviews all final
documents before they are released only for the purpose of ensuring
that the document is legally correct.
In a May 1991 letter to the Chairman, House Energy and Commerce
Committee, the FCC Commissioners noted that although FCC releases a
detailed summary of the items on its agenda on the day that the
Commission meets, the delays in releasing final written documents
were the result of
"... the administrative process of incorporating the final
edits of all those involved in the decision-making and drafting
process. This has often taken more time than is desirable.
While the reasons for delay in the release of specific items may
vary, the delay generally reflects this fact. The delay does
not reflect any significant substantive changes, after the
Commission's vote, in the specific action taken by the
Commissioners."
FCC officials acknowledged that several items that were released late
were highly complex technically and/or the subject of particularly
intense media attention or numerous legal challenges. They noted
that the Commissioners and their staffs may review several iterations
of these kinds of decision documents before they are released.
Delays also have occurred in releasing decisions to the public after
the Commissioners have voted, in a few instances, on summary
documents. The delays occur because the summaries are much less
detailed than the decisions that FCC releases to the public and
therefore require a considerable amount of time to prepare in the
proper format for a released decision. However, according to FCC's
General Counsel, in rare instances in the past, summaries have been
useful to enable the Commissioners to focus on particularly
sensitive, complex, or controversial matters when faced with a
statutory, court-imposed, or other deadline. In April 1991, the
Commissioners voted to adopt a new syndication and financial interest
rule for television networks on the basis of a summary document. The
22-page summary resulted in a 73-page report and order, which was
written by FCC staff, including staff from each of the five
Commissioners' offices, and released 50 days later.
NRC'S PROCEDURES RESULT IN
FASTER RELEASES; SEC HAS NO
WRITTEN PROCEDURES ON THE
TIMING OF RELEASES
---------------------------------------------------------- Letter :4.1
NRC and SEC officials told us that their Commissioners routinely
complete the review and revision process before voting on a decision;
as a result, the decisions are ready for release within a few days
after voting. According to NRC's procedures, meeting decisions are
to be released on the day of the vote, and the NRC Secretary told us
that these decisions were immediately released. NRC's procedures
allow up to 10 days for the release of decisions that are equivalent
to FCC's circulated decisions, and the Secretary told us that these
decisions were released within the required time. SEC does not have
written procedures on when decisions are to be released, but the SEC
Secretary told us that the majority of SEC's decisions were released
within 1 or 2 days.
FCC'S PROCEDURES ARE INADEQUATE
TO TRACK DECISIONS FROM
COMMISSIONERS' VOTE TO PUBLIC
RELEASE
------------------------------------------------------------ Letter :5
FCC lacks procedures that require the documentation of the decisions
that the FCC Commissioners adopt and of subsequent changes made to
these decisions until they are publicly released. Good internal
controls require that an agency's actions and significant events be
clearly documented and that the documentation be readily available
for examination.\4
FCC's files on decisions do not contain the information needed to
review post-vote changes and verify that all significant changes were
approved. The agency has no written procedures for what documents
need to be kept, but the principal documents in FCC's Office of the
Secretary files include the version of the draft decision document
that was officially provided to the Commissioners (for example,
before a meeting), the released decision, and a Bureau Agenda Release
Form, which the bureau chief responsible for the draft signs to
indicate that all edits requested by the Commission have been
approved by the relevant Commissioners. No document shows the
Commissioners' actual approval. FCC does not routinely maintain
copies of intermediate drafts between the officially distributed
draft and the released decision. The draft on which the
Commissioners vote may differ from the draft officially distributed
because the initial draft may have been edited between the time it
was distributed and the time it was voted on. Thus, FCC has no
record of the specific document on which the Commissioners voted,
revisions to that draft, or the Commissioners' approvals, if needed.
FCC's public records--referred to as dockets in the case of hearings
and rulemaking proceedings--include the released document, which
according to FCC is the only official version of the item.\5 However,
FCC's public files do not contain draft documents and specifically do
not contain the draft of the document before the Commissioners at the
time of adoption. Thus, FCC's public files are not designed to
provide any documentation of whether substantive changes may have
been made after the Commissioners had voted.
Although FCC's files contain the officially circulated document and
the released document, because the draft decision document voted on
and all subsequent revisions are not kept, including the
Commissioners' approvals of all significant revisions, FCC is unable
to verify whether or not substantive changes to the text of a
decision occurred after a vote and were properly approved.
--------------------
\4 Standards for Internal Controls in the Federal Government (U.S.
General Accounting Office, 1983).
\5 FCC maintains a public record (docket) on rulemakings and other
significant regulatory actions. Dockets are maintained on nearly all
meeting decisions and some circulated decisions.
CONCLUSIONS
------------------------------------------------------------ Letter :6
FCC has been responsive to congressional concerns about the length of
time required to release meeting decisions publicly, and all but
three meeting decisions in 1992 and 1993 were released within 30
days. However, FCC does not apply its 30-day target to circulated
decisions, and during 1990 through 1993, between 8 and 17 percent of
circulated decisions were not released within 30 days. FCC officials
say that the delay in the public release of decision documents is
primarily the result of FCC's procedures whereby the Commissioners
typically vote on a draft that may require editorial revisions before
it is released. FCC does not maintain adequate written records of
the documents that the Commissioners vote on or revisions to these
documents to ascertain whether substantive changes have occurred and
been agreed to by the Commissioners. This lack of documentation may
leave the Commission vulnerable to criticism that the documents
publicly released may not be an accurate reflection of what the
Commissioners decided. That perception may be especially important
when decisions involve sensitive or controversial issues.
RECOMMENDATION
------------------------------------------------------------ Letter :7
To ensure that FCC maintains adequate records and to allay potential
criticism that released documents may not accurately reflect what the
Commissioners decided, we recommend that the Chairman, FCC, direct
the Managing Director to establish written procedures to maintain a
record of the document on which Commissioners vote, along with the
decision publicly released.
AGENCY COMMENTS AND OUR
EVALUATION
------------------------------------------------------------ Letter :8
In July 1994, we discussed the information contained in this report
with the following FCC officials: the Managing Director and his
staff, officials in the Office of General Counsel, and the Senior
Legal Advisor to the Chairman. They agreed with the factual
information in the report. We have incorporated their comments where
appropriate. As requested, we did not obtain written agency comments
on a draft of this report.
The FCC officials said that they do not believe that additional
documentation of the Commissioners' decisions is necessary. They
stated that the released document is the official decision document,
and they stand by the integrity of FCC's process whereby the
responsible bureau chief signs that all Commissioners have approved
edits when necessary. We continue to believe that it is important
for FCC to maintain a record of the document on which the
Commissioners voted in order to meet good internal control standards,
which require agencies' transactions to be clearly documented.
---------------------------------------------------------- Letter :8.1
This report is based on information obtained from officials of FCC,
NRC, and SEC. Appendix IV details our objectives, scope, and
methodology. We conducted our work from January 1993 to July 1994,
in accordance with generally accepted government auditing standards.
Unless you publicly announce its contents earlier, we plan no further
distribution of this report until 30 days from the date of this
letter. At that time, we will send copies of the report to
interested congressional committees and the Chairman, FCC. We will
also makes copies available upon request. Please contact me on (202)
512-2834 if you or your staff have any questions. Major contributors
to this report are listed in appendix V.
Sincerely yours,
Kenneth M. Mead
Director, Transportation and
Telecommunications Issues
FCC'S EX PARTE PROCEDURES
=========================================================== Appendix I
After a vote is taken on a matter before the Federal Communications
Commission (FCC), the written decision undergoes an edit process by
the FCC staff. Some have expressed concern that this process may
allow post-vote lobbying by outside parties before the decision is
released to the public. FCC officials we spoke with contend that
their edit process is safeguarded from such efforts by their ex parte
rules.
Ex parte means "on behalf of" or "from one side." Generally,
according to FCC officials, whenever an outside person expresses
views to the Commission on the merits of a pending proceeding without
all parties having an opportunity to be present, or a party writes to
the Commission or another party in the proceeding without sending
copies to all parties, an ex parte presentation has been made.\1 The
purposes of the Commission's ex parte rules are (1) to ensure that an
agency's proceedings are decided on the merits of a public record
developed in the proceeding rather than communications
(presentations) shrouded in secrecy and (2) to ensure the adequacy
and completeness of a record to enable effective judicial review of
the agency's action. Ex parte presentations are generally prohibited
in adjudications that involve more than one formal party. Ex parte
presentations are generally permitted in policy and rulemaking
proceedings, provided that they are disclosed (see discussion below).
Additionally, the Commission states that an important objective of
its procedures is to allow it sufficient flexibility to obtain
necessary information and evidence for reasoned decision-making.
According to an FCC official, most proceedings that go before the
Commissioners in a meeting are policy and rulemaking proceedings in
which ex parte presentations are permissible. However, as part of
its ex parte rules, the Commission has adopted a "Sunshine Period
prohibition" on presentations on the merits of any matter that is the
subject of a Commissioners' meeting. This prohibition runs from the
issuance of a public notice (usually 7 days before the meeting)
announcing that an item will be on an FCC meeting agenda, until the
decision is released. Similar restrictions do not apply to matters
that are voted on through the circulation process. However, the
Commission's general ex parte rules would apply.
The ex parte rules (including the Sunshine Period prohibition) apply
to decision-making personnel. FCC's definition of "decision-making
personnel" is very broad and includes any member, officer, or
employee of the Commission who is or may reasonably be expected to be
involved in the decisional process in the proceeding. According to
one FCC official, all personnel involved in the edit process would be
subject to the ex parte rules. A brief description of FCC's ex parte
rules follows.
--------------------
\1 The Administrative Procedure Act defines an ex parte communication
as an oral or written communication not on the public record with
respect to which reasonable prior notice to all parties is not given.
5 U.S.C. � 551(14). It does not include requests for status reports
on any matter or proceedings. Id. The Administrative Procedure Act
imposes restrictions on ex parte communications concerning only
formal, on-the-record hearing proceedings. 5 U.S.C. � 557(d)(1).
According to FCC officials, virtually no FCC meeting decisions fall
within this category.
EX PARTE RULES FOR MEETING
ITEMS
------------------------------------------------------- Appendix I:0.1
Unless otherwise exempt, the Government in the Sunshine Act (Sunshine
Act), 5 U.S.C. � 552b, requires agencies headed by a collegial body
to hold open meetings.\2 Agencies generally are to provide notice of
such meetings at least 1 week before the meeting, specifying the
time, place, and subject matter of the meeting, whether it is to be
open or closed to the public, and the name and telephone number of
the official designated by the agency to respond to requests for
information about the meeting.
As noted above, generally the Sunshine Period prohibition in FCC's ex
parte rules prohibits the making of any presentation (whether ex
parte or not) to decision-making personnel once the Sunshine notice
has been issued. There are some exceptions. For example, the
Congress is generally permitted to make presentations during this
period if such presentations are otherwise permissible under the ex
parte rules.\3 These restrictions apply during the Sunshine agenda
period, which begins with the release of the Sunshine notice and
terminates when the Commission either releases the text of a decision
or order relating to the matter, or issues a public notice stating
that the matter has been deleted from the agenda or returned to the
staff for further consideration.
According to an FCC official, the ex parte Sunshine restrictions are
followed in order to give the Commissioners and their staffs a
"period of repose" in which to review and analyze the proposed items.
The Commission does not want to be bombarded with presentations once
the notice has been formally released.
If an oral or written presentation (not otherwise exempted) is
received during the Sunshine period, a public notice is required to
be issued describing the prohibited communication. All prohibited
documents received during the Sunshine period are to be placed in a
separate Sunshine-period folder. These folders are to be available
to the public but are kept separate from the docket file.
--------------------
\2 The Sunshine Act does not require agencies to hold meetings nor
does it prevent agency members from considering individually business
that is circulated to them sequentially in writing. See, e.g.,
Railroad Com'n of Texas v. United States, 765 F.2d 221, 230 (D.C.
Cir. 1985) and Communication Systems Inc. v. FCC, 595 F.2d 797,
800-801 (D.C. Cir. 1978).
\3 See P.L. No. 100-594, � 7, 102 Stat. 3022. See also, 47 C.F.R.
� 1.1203.
EX PARTE RULES FOR
CIRCULATED ITEMS
------------------------------------------------------- Appendix I:0.2
The Commission has never officially applied the Sunshine prohibitions
to matters that are acted upon by the Commission through the
circulation process. However, FCC's ex parte rules for restricted
and nonrestricted matters--described below--would apply. According
to the Commission, once an item being circulated reaches a
Commissioner's office, he or she is free to determine whether to
permit presentations during this period (i.e., from the time the
matter reaches the Commissioner's office until the decision on the
matter is released) that would otherwise be permissible under the
Commissioners' rules. As one official noted, there is no need for a
"period of repose" since no formal public announcement has been made
that a matter is being circulated to the Commissioners for their
individual votes.
PRESENTATIONS PROHIBITED
IN RESTRICTED PROCEEDINGS
----------------------------------------------------- Appendix I:0.2.1
Except for certain exemptions, ex parte presentations by outside
persons (or Commission decision makers) are prohibited in restricted
proceedings. Restricted proceedings include contested adjudicative
proceedings as well as informal rulemaking proceedings on the
allotment of a channel in radio or television broadcast services.
The prohibition continues in effect until the proceeding has been
decided or a settlement or agreement by the parties has been approved
by the Commission and such decision or approval is no longer subject
to reconsideration by the Commission or to review by any court.
If a prohibited oral ex parte presentation is made, the person to
whom it is addressed must advise the person making the presentation
that it is prohibited and terminate the discussion. Additionally,
the Commission personnel to whom the presentation was made must
forward to the Managing Director a statement that outlines the
prohibited communications. Prohibited written ex parte presentations
must be immediately forwarded to the Managing Director with a
statement, if necessary, describing the circumstances of the
presentation.
The documentation of the ex parte presentations must be placed in a
public file, which must be associated with, but not made a part of,
the file or record of the proceeding to which the presentation
pertains. If a proceeding has been designated for a hearing, such
materials may be considered in determining the merits, but only if
they are made a part of the record of the proceedings.
PRESENTATIONS ALLOWED IN
NONRESTRICTED
PRESENTATIONS BUT MUST BE
PUBLICLY DISCLOSED
----------------------------------------------------- Appendix I:0.2.2
Except as provided under the Sunshine agenda, in nonrestricted
proceedings, outside persons are permitted to engage in ex parte
presentations to decision makers, but certain disclosure requirements
must be met. Nonrestricted proceedings include most informal
rulemaking procedures (but not the allotment of a specific channel in
radio or television broadcast services). As in restricted
proceedings, the requirements for nonrestricted proceedings generally
continue in effect until the proceeding has been decided by the
Commission and is no longer subject to reconsideration by the
Commission or review by any court.
Any person outside the Commission who makes a written or oral
presentation to decision-making personnel in a nonrestricted
proceeding that is directed to the merits or outcome of a proceeding
must provide on the same day two copies of the communication (or an
original and one copy of a written summary of the meeting) to the
Commission's Secretary for inclusion into the public record. The
Commission's Secretary generally must include such documentation in a
public notice listing any written or oral ex parte presentations
received by his/her office during the preceding week related to any
nonrestricted proceeding. Special, more lenient disclosure
requirements exist for the Congress and federal agencies.
According to FCC officials, there are no ex parte restrictions on
Commissioners or other decision-making employees of the Commission
who talk to outside persons about nonrestricted proceedings. Thus,
for example, the Commissioners may express their views about such
proceedings in speeches or in discussions with Members of Congress.
MEETING DECISIONS THAT TOOK THE
LONGEST TIME TO RELEASE AFTER THE
FCC COMMISSIONERS' APPROVAL
========================================================== Appendix II
We arbitrarily selected six as the cut off for the longest decisions
listed over 30 days. In 1992 and 1993, fewer than six decisions took
longer than 30 days to release.
Table II.1
Meeting Decisions in 1990 That Were
Delayed the Longest Time Before Release
Days to
Decision release
-------------------------------------------------- --------
Review of the technical assignment criteria for 97
the use of AM broadcast service (FCC No. 90-135)
Report and order amending sections 73.1750, 97
73.3517, and 73.3571 of the rules and revising
policies with respect to reduction in AM
interference (FCC No. 90-137)
Improved methods for calculating skywave field
strength in the broadcast band (FCC No. 90-138) 97
Report and order adopting new AM groundwave 97
propagation curves (FCC No. 90-139)
Order on represcribing the authorized rate of 79
return for interstate services of local exchange
carriers (FCC No. 90-315)
Report and order on the definition of a cable 71
television system (FCC No. 90-340)
------------------------------------------------------------
Table II.2
Meeting Decisions in 1991 That Were
Delayed the Longest Time Before Release
Days to
Decision release
-------------------------------------------------- --------
Notice of proposed rulemaking on the amendment of 53
parts 0, 1, 2, and 95 of the Commission's rules
to provide for interactive video data services
(FCC No. 91-16)
Report and order on the evaluation of the 50
syndication and financial interest rules (FCC No.
91-114)
Report and order on competition in the interstate 46
interexchange marketplace (FCC No. 91-251)
Memorandum opinion and order on AT&T 46
communications, tariff FCC No. 15, and
competitive pricing plan No. 2 (FCC No. 91-252)
Memorandum opinion and order on Cincinnati Bell 45
Telephone Co. Tariff (FCC No. 91-117)
Notice of proposed rulemaking on the policies and 45
rules concerning local exchange carrier
validation and billing information for joint-use
calling cards (FCC No. 91-118)
------------------------------------------------------------
Table II.3
Meeting Decisions in 1992 That Exceeded
30 Days to Release
Days to
Decision release
-------------------------------------------------- --------
Report and order and notice of proposed rulemaking 32
on the expanded interconnection with local
telephone company facilities and amendment of the
part 69 allocation of general support facility
costs (FCC No. 92-440)
------------------------------------------------------------
Table II.4
Meeting Decisions in 1993 That Exceeded
30 Days to Release
Days to
Decision release
-------------------------------------------------- --------
Second report and order on the evaluation of the 36
syndication and financial interest rules (FCC No.
93-179)
Report and order and further notice of proposed 32
rulemaking on the implementation of sections of
the Cable Television Consumer Protection and
Competition Act of 1992 (FCC No. 93-177)
------------------------------------------------------------
CIRCULATED DECISIONS THAT TOOK THE
LONGEST TIME TO RELEASE AFTER THE
FCC COMMISSIONERS' APPROVAL
========================================================= Appendix III
We arbitrarily selected six as the cut off for the longest decisions
listed. In 1991, there were two decisions tied for sixth place so we
included both decisions.
Table III.1
Circulated Decisions in 1990 That Were
Delayed the Longest Time Before Release
Days to
Decision release
-------------------------------------------------- --------
Applications of the Helen Broadcasting Co., for 160
consent to assign the license of station WEEI-
AM, Boston, Massachusetts, to Boston Celtics (FCC
No. 90-168)
Amendment of section 73.202(b) and table of 140
allotments, FM broadcast stations in Chester and
Wedgefield, South Carolina (FCC No. 90-184)
Applications for renewal of license of certain 137
broadcast stations serving Melbourne, Florida,
and other communities in Florida (FCC No. 90-
242)
Order on the amendment of part 87 of the Aviation 89
Services Rules to make an additional frequency
available to aeronautical utility mobile stations
at airports with a control tower (FCC No. 90-
173)
Memorandum opinion and order on Dorothy J. Owens, 73
debtor-in-
possession (assignor), and Buck Owens, debtor-
in-possession (assignee), for assignment of
license of station KDOB-TV, Bakersfield,
California (FCC No. 90-298)
License renewal applications of certain commercial 72
television stations serving Philadelphia,
Pennsylvania. A joint petition was filed by the
United Church of Christ (FCC No. 90-158).
------------------------------------------------------------
Table III.2
Circulated Decisions in 1991 That Were
Delayed the Longest Time Before Release
Days to
Decision release
-------------------------------------------------- --------
Third report and order on detariffing the 85
installation and maintenance of inside wiring
(FCC No. 91-386)
Memorandum opinion and order on reconsideration of 85
the classification of inside wiring services for
accounting purposes (FCC No. 91-387)
Order on liability of Discount, Discs, Shalimar, 60
Florida, for a forfeiture (FCC No. 91-261)
Memorandum opinion and order on the re- 60
applications for renewal of certain broadcast
stations serving communities in the states of
Alabama and Georgia (FCC No. 91-268)
Memorandum opinion and order on the annual 1988 54
access tariff filing and GTE Operating Companies'
petition for further reconsideration (FCC No. 91-
152)
Order to dismantle radio tower in Manchester, 52
Tennessee, owned by David Stiles dba Procom
Towers (FCC No. 91-343)
Memorandum opinion and order on the policy and 52
rules concerning rates for dominant carriers (FCC
No. 91-344)
------------------------------------------------------------
Table III.3
Circulated Decisions in 1992 That Were
Delayed the Longest Time Before Release
Days to
Decision release
-------------------------------------------------- --------
Memorandum opinion and order on the amendment of 127
part 61 of the Commission's rules (FCC No. 92-
248)
Tentative decision on the investigation of special 105
access tariffs of local exchange carriers (FCC
No. 92-488)
Notice of apparent liability for forfeiture for 74
Mobilcomm of Virginia, Inc.--penalty for station
KNKI 203 in the common carrier domestic public
land mobile radio services at Churchville, Md.
(FCC No. 92-154)
Notice of apparent liability for forfeiture for 74
American Paging, Inc. (of Virginia)--penalty for
station KNKD in the common carrier domestic
public land mobile radio services at Churchville,
Md. (FCC No. 92-155)
Notice of apparent liability for forfeiture for 74
American Beeper Associates, Ltd., partners--
penalty for station KNKL 636 in the common
carrier domestic public land radio services at
Churchville, Md. (FCC No. 92-156)
Notice of apparent liability for forfeiture for 74
Alexander Mitchell Communications Corp.--penalty
for broadcast radio station WSKS-FM,
Milledgeville, Georgia (FCC No. 92-158)
------------------------------------------------------------
Table III.4
Circulated Decisions in 1993 That Were
Delayed the Longest Time Before Release
Days to
Decision release
-------------------------------------------------- --------
Order on the amendment to part 63 of the 116
Commission's rules (FCC No. 93-204)
Memorandum opinion and order on the Allnet 76
Communication Services, Inc., complainant, v.
U.S. West, Inc., et al., defendants (FCC No. 93-
538)
Order on the liability of Madison Communications, 62
Inc., Athens, Alabama, for a forfeiture (FCC No.
93-7)
Order on the liability of Port of Ilwaco, 62
Washington, for a forfeiture (FCC No. 93-8)
Order on the liability of the Computer Force, 62
Lakeland, Florida, for a forfeiture (FCC No. 93-
9)
Memorandum opinion and order on AT&T, complainant, 60
v. Central Telephone, et al., defendants. Damages
were awarded to the complainant for defendants'
violations of the Commission's rate-of-return
prescription (FCC No. 93-152)
------------------------------------------------------------
OBJECTIVES, SCOPE, AND METHODOLOGY
========================================================== Appendix IV
Concerned that the Federal Communications Commission (FCC) was taking
an excessively long time to release decision documents after the
Commissioners had voted, the Chairman, Subcommittee on
Telecommunications and Finance, House Committee on Energy and
Commerce, asked us to examine FCC's procedures for releasing the
Commission's decision documents. As agreed with the Chairman's
office, we (1) reviewed the timeliness of public release of FCC's
decisions, (2) examined whether FCC's procedures for releasing
documents contributed to delays in these releases and how FCC's
procedures compare to those of the Nuclear Regulatory Commission
(NRC) and the Securities and Exchange Commission (SEC), and (3)
examined FCC's controls to determine whether revisions are made to
decisions voted on by the Commissioners without their approval. In
our response to these questions, we also included information that
you requested on FCC's circulation voting process. Appendix I also
provides information that the Chairman requested on FCC's ex parte
contacts.
To determine the timeliness of FCC's public release of decisions, we
reviewed and analyzed FCC's computer-generated lists of decisions
voted on in meetings and through circulation for calendar years 1990
through 1993. For each decision, FCC's computer data included a
brief description of the item voted, an FCC control number, the date
voted, and the date the decision document was released. We measured
timeliness as the difference between the date the item was voted on
by the Commissioners and the date the document was released to the
public. Several data discrepancies existed in FCC's
computer-generated information, including missing and/or erroneous
release dates, missing sequential control numbers, and duplicate
entries. To resolve these discrepancies, we examined individual
decision documents and obtained clarifying data from FCC's Acting
Secretary. We did not independently verify the information in FCC's
data base for each of the nearly 2,000 decisions voted on during the
period covered by this review.
To determine whether FCC's procedures for releasing decision
documents contribute to delays in these releases, we interviewed
FCC's former Secretary, the Chief of Staff for the former Chairman,
and officials in FCC's Office of General Counsel. We reviewed FCC's
regulations, written procedures in FCC's Agenda Handbook, and FCC's
annual reports to the Congress required by the Sunshine Act. On
meeting and circulated decisions that took the longest time to
release in each of the 4 calendar years, we examined FCC's public
dockets and internal files maintained by the Secretary. To determine
how FCC compared with NRC and SEC in the timely release of decision
documents, we discussed decision release practices with the
respective Secretaries and their staffs at NRC and SEC. We obtained
and reviewed NRC and SEC (1) written procedures relating to their
document release processes, (2) annual reports on the administration
on the Sunshine Act, and (3) other pertinent documents. We also
discussed general procedures that commissions may use for managing
their decision workload with the General Counsel of the
Administrative Conference of the United States.
To determine FCC's controls over revisions to and subsequent approval
of decisions voted on by the Commissioners, we interviewed FCC's
former Secretary, the Chief of Staff for the former Chairman, and
officials in FCC's Office of General Counsel. We reviewed FCC's
regulations and written procedures in FCC's Agenda Handbook. We
attempted to verify the extent and nature of post-vote changes to
decisions but were unable to do so because FCC did not maintain
complete records of documents voted on or subsequent revisions made
before a document was released.
To obtain information on FCC's circulation voting process and ex
parte procedures, we reviewed FCC's regulations and discussed the
process and procedures with FCC's former Secretary, the Chief of
Staff of the former Chairman, and officials in FCC's Office of
General Counsel. We reviewed FCC's public dockets and other files
maintained by the Office of the Secretary for circulated decisions
voted on in calendar years 1990 through 1993. We also discussed ex
parte issues with the General Counsel of the Administrative
Conference of the United States and reviewed the judicial history
related to the use of ex parte contacts at federal commissions.
MAJOR CONTRIBUTORS TO THIS REPORT
=========================================================== Appendix V
RESOURCES, COMMUNITY, AND ECONOMIC
DEVELOPMENT DIVISION,
WASHINGTON, D.C.
Barry T. Hill, Associate Director
Marnie S. Shaul, Assistant Director
J. Erin Bozik, Assistant Director
John A. Thomson, Jr., Senior Evaluator
OFFICE OF GENERAL COUNSEL
Michael R. Volpe, Assistant General Counsel
Mindi G. Weisenbloom, Senior Attorney