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Great Action on Cleaning Up Anachronistic FCC Procedural Rules

We determine that these revisions ... will increase the efficiency of Commission decision-making, modernize Commission procedures for the digital age, and enhance the openness and transparency of Commission proceedings for practitioners and the public.

While I was critical of FCC and OGC in the ex parte R&O of a few days ago, Friday’s Parts 0 and 1 procedural reforms are long overdue removals of anachronisms that previous leadership have ignored. When Chairman Hundt put in place the Commission’s website in the 1990s it was probably a progressive leader among administrative agencies - now it is an anachronism of clutter, hard to find information, and missing information due to lingering paper filing requirements. The new action removes most of these problems in one stroke.

First, the R&O will increase the use of docketing so more FCC proceedings will be online (para. 5-12). For example, your blogger’s ex parte complaint against a certain party has no trace at the FCC website except for its listing (for almost a year now) on the Items on Circulation page. As a result of these changes and the one in the recent ex parte rulemaking such proceedings as well as others will now have greater transparency.

(The only downside for this major surge in the use of dockets is that bloggers will no longer be able to use the total number of dockets opened in a year as a measure of Commission productivity. But we will find new ways to measure productivity!)

The R&O also removes many paper filing requirements and promises more at a later date (para.13-18). It appears that petitions for rulemaking must still be filed in paper form but hopefully that is on the list for later change.

Finally, the R&O requires that filings generally be in a machine searchable form:

Therefore, consistent with the goal of expanding the ability of interested parties to examine and test information that has been submitted to the government,60 we believe that electronic filings with the Commission should be machine readable whenever technically possible. In particular, filings containing text should be submitted in a format conducive to electronic search and/or copying, such as a Microsoft Word document or an Adobe .pdf copy. Similarly, filings containing non-text information should be submitted in native format such that, for example, third parties can sort the spreadsheet data within a filing using Microsoft Excel or similar programs. In cases of attachments exceeding 500 pages, information to be submitted in a format that does not permit electronic filing, and other exceptional circumstances, we will consider a waiver of the electronic filing requirement on a case-by-case basis, similar to the approach taken in our contemporaneous order reforming our ex parte rules. Finally, filings submitted to ECFS in .pdf or similar format should not be locked or password-protected.

Non searchable documents are a pain for both the FCC staff and other parties in a proceeding since it is harder to digest their contents in summaries and reply comments.

In preparing for a class this week, I came across a useful “Admin Law for Dummies”-like website that included the following observation

Don’t Protect Your Document: This may not occur to you - agency staff will set on your argument like hungry ferrets, summarizing and digesting it, and reporting the results to working groups. This is frequently achieved by our friend "Cut and Paste." If you copy-protect your document, you make it hard for the staff to work with it. And if you make it hard for the staff to work with your 40 page comment, and they have 300 more comments to read, what do you think will happen?

FCC is now following this advice and making it almost mandatory.

Congratulations, OGC, on a good R&O!
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