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Delegated Authority @ FCC

Last week, Comm. O’Rielly published a thoughtful essay on delegated authority issues at FCC. Your blogger replied with a complementary viewpoint given below. We agree that a major review of delegated authority is needed at FCC, but we differ in that we believe a carefully designed increase is needed to stop the productivity gap of FCC decisions in both new spectrum technology and timely resolution of “emerging interference issues”. We welcome alternative viewpoints.

I agree that "fixing the delegation process should be a priority for the Commission". As one who worked at FCC for almost 25 years I can see the problems. However, if not done with care to address the real problems the net effect will be to decrease FCC productivity to the detriment of all regulated entities.

Section 5(c) gives the Commission broad authority to delegate. In the early days of the Commission the (then) 7 commissioner
divided themselves into 3 "divisions" that could act independently in the 3 important areas of the time: telephone, telegraph, and broadcasting. This was in an era where radio technology regulation was much simpler. The maximum usable frequency was 2 MHz. The only modulations available were AM and Morse code. There was no APA so adopting rules was much simpler.

All this changed post WWII with a huge explosion of radio technology resulting from wartime R&D coupled with the new APA which made adopting rules more complex. The nearly 70 years of court decisions on the APA have made updating rules even more difficult - a real problem with technical radio rules where a new technology often requires a rule change.

Does today's FCC have the decision productivity to keep up with its Title III technical role today? Probably not.

New wireless technologies are not being addressed in a timely way. Consider the record of RM-11664 (an issue I was not involved in) that is mentioned parenthetically in the Docket 14-177 NOI. This October 2012 proposal for a trade group was neither dismissed nor acted on for over 2 years. Consider the Docket 09-157 NOI on "wireless innovation", launched with great fanfare and now waiting silently to become "stale" and be dismissed with hundreds of other pending proceedings. Mitch Lazarus, an attorney who was known for representing many wireless technology innovators before he retired recently, documented delays of new technology considerations in his Docket 09-157
pro se comments:

The delays in technical spectrum issues affects not only new technologies, they also affect "emerging interference" issues of new types of interference to incumbents that need a new policy decision to resolve. For example:
- Police radar detector interference to VSAT/Docket 01-278: While the NPRM implies that this issue was addressed quickly, in reality the FCC staff was aware of the problem for a decade before action
- Cellular booster to cellular base station interference/Docket 10-4: From the first documented pleas from CTIA for "urgent action" to R&O this issue took almost a decade to resolve.
- The ongoing FM broadcast harmonic interference to 700 MHz LTE base station interference: A rule conflict prevents assigning responsibility to one side or the other and the issue has been pending at the staff level for 2 years. (Is the 8th Floor even aware of it?)

The inability of the Commission to resolve these new policy issue interference cases in a timely way threatens all incumbents and makes a mockery of the often repeated claim that if a decision results in unexpected interference it will be addressed quickly. It also raises doubt about the FCC being the "expert agency in spectrum management". The current FCC backlog in Title III technical issues prevents timely resolution of most issues.

While incentive auctions and corporate mergers are getting attention, many Title III issues dealing with either interference issues needing a rulemaking decision or enabling new technologies that would improve US competitiveness are just gathering dust.

Note that the Commission's UK counterpart, Ofcom, has a "Board" that is both its "main decision making body" and "provides strategic direction for the organisation". The board is composed of individuals with backgrounds comparable to FCC commissioners and are appointed by the UK's political process. But unlike at FCC, the Ofcom Board does not have to approve every obscure decision, they focus more on the big issues and setting policy for the Chief Executive who works for them and controls the bulk of decisions.

Most of us think Ofcom does a better job keeping up with its work load than FCC does. But while Ofcom is staffed with "British civil servants"* who are politically neutral, for decades FCC staff has had significant "noncareer" leadership both in positions formally designated as noncareer and in career positions filled with de facto political appointments. While Bob Pepper loyally served chairmen of both parties in the former Office of Plans and Policy, that type of nonpartisan leadership of a bureau/office has been rare in the past few decades. This in turn leads to a leadership "blood bath" of senior managers with a change in the White House and sometimes even a change in chairman under the same President. This inevitably results in Commission staffers having mixed loyalty to the agency and the chairman. The agency should try to get more nonpartisan "Bob Peppers" in senior management slots in the bureaus/offices to give the staff more stability.

The problems of timeliness of decisions might have gotten more attention if the FCC's Inspector General devoted more resources to his role of independent review of the Commission's operations rather than getting totally distracted by his role in USF fraud cases. While the IG is not appointed by the President and confirmed by the Senate like cabinet level IGs, the statute is quite clear that his responsibilities are the same. Other IGs give feedback on the "big picture" in their agency, e.g. NRC IG report on FOIA problems at NRC, but FCC's IG doesn't. While the current IG is not a crony of the chairman like all of his predecessors were, the pattern of not looking at big problems in FCC was well established before he arrived. A credible and independent FCC IG would make FCC more credible!

Under the terms of Section 5(c) of the Act, the Commission could act more like Ofcom if it chose to. Perhaps it would need more resources, but I suspect an objective analysis of the economic cost of present delays in both new technology deliberations and emerging interference resolution time would show that new resources to improve decision times in these matters would be cost-effective for the economy.

The Commission could thus focus more on defining overall policies and strategies to give guidance to its staff as well as reserving for itself the most major issues. Any staff decision could be appealed, as now, under the terms of Section 5(c)(4).

The delegation of authority issue should be reviewed, but a major focus should be on BOTH improving productivity and throughput of the agency as well as improving accountability of the staff to the will and authority of the commissioners. SOME decisions really need the input and "hands on: vote of presidential appointees. Many do not and the present processes slow resolution of Title III technical issues to the detriment of all involved. It is important to have better process to decide which issues got to a vote on the 8th Floor and which can be resolved faster through delegated authority. It is also important that the staff have better guidance from the Commission or goals and strategies to be used in resolving issues on delegated authority. But routing everything through the 8th Floor is likely to slow key Title III technical decisions even more.

* Ofcom is actually not a normal UK agency and their staff are not legally the same as mainstream civil servants, but they are apolitical.
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