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"Back Office" Problems at FCC and the Net Neutrality Rulemaking


Your blogger was preparing for a presentation this week to a group of engineering interns in DC on “Admin Law for Techies” and was going to use the regulations.gov website to show how to find NPRMs from various agencies and watch the rulemaking process. He decided to use the net neutrality rulemaking as an example since it is probably the most visible rulemaking on a technical issue in the whole government at the moment. Going to the government-wide regulations.gov website resulted in the screen shown above. Why?

A little snooping showed the root cause of the problem is a “back office problem” at FCC. This is a problem that is been ongoing under several chairmen from
both parties. A lot of attention is spent on Commission open meetings (held at the statutory minimum of 1/month in recent decades - there used to be 1/week). Bureau chiefs and senior managers get a lot of attention. But the junior civil career servants who perform the key functions of final polishing of FCC decisions and getting them out the door so they can go into effect continue to be understaffed, overworked and underappreciated.

So it is not surprising that a key FCC NPRM like
net neutrality languishes in publishing limbo. Does it matter? Well, normally FCC NPRMs have a comment period tied to Federal Register (FR) publication date. The net neutrality NPRM unusually has a comment date on the FCC-released version of July 15. What happens if it does not make the Federal Register before then? What happens if it is only published a few days before 7/15? Might a court rule that commenting period was inadequate since Federal Register publication is the formal announcement? A senior FCC manager I discussed this with insisted it was of no significance.

However, a similar problem happened last year with the experimental license reform rulemaking,
Docket 10-236. As shown below where FCC boasted about making “significant changes to its Part 5 Experimental Radio Service (ERS) by creating a more flexible framework to support the rapid pace of technological innovation and to further implement the recommendations of the Commission’s March 2010 National Broadband Plan”:


While the text of the decision was released the same day it was adopted - a sign of a high priority action - effectiveness dates of all new federal rules (with a few narrow exception) are tied to FR publication. This decision was not published in the FR until April 29, 2013, making the effectiveness date of the new rules the end of May. It is unclear how much of this 88 day delay was last minute edits and 8th Floor review of them or coordinating with the Federal Register details of the publication. However, it is reasonable to assume that the “back office” problem was a key contributor to the delay and the implementation of the new rules.

To make matters worse, after the press release’s selfcongratulatory tone on the new rules, a key aspect of the new rules involving “program experimental licenses” is still not in effect almost 16 months after the above press release because FCC has lacked the funding to update its online filing system for experimental licenses - a “state of the art” Clinton Administration design that is hated by all those who use it - both inside and outside FCC.

So it is nice to do grand things like net neutrality and experimental license system changes, but resources are needed for the unglamorous side of FCC to make such glamorous actions effective. We suspect that the root of this is the longstanding over politicization of the FCC staff with too many senior managers coming and going with 8th Floor changes. The career staffers who deal with ministerial problems of keeping rule makings moving and implementing them are not getting the attention and resources needed to do their jobs. As we have discussed previously in the context of awards at FCC, they are also not getting the recognition from senior leadership and the public.

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