A Republican staff memo being circulated ahead of this Friday’s hearing on “FCC Process Reform” before the Subcommittee on Communications and Technology raises serious concerns about a variety of processes at the FCC.   According to the Memo, “[u]nder both Democratic and Republican chairmen, the FCC has fallen into practices that weaken decision-making and jeopardize public confidence.”  All five FCC Commissioners will be called to testify at the hearing, which will take place on Friday, May 13, 2011, at 9:30 a.m. in the Rayburn House Office Building.

A copy of the staff Memo is linked here:  https://republicans.energycommerce.house.gov/Media/file/Hearings/Telecom/051311/Memo.pdf

The Memo proposes various reforms and raises several concerns, including the following:

• Publishing Proposed Rules. The FCC does not always publish the text of proposed rules for public comment before adopting final rules, instead merely asking a collection of open-ended questions or offering a series of alternative approaches. Providing specific text for a particular proposal will allow for more constructive input and a better end product.  Crafting proposed rules should not be difficult if there is a genuine need and the FCC has started with a notice of inquiry.
• Statutory minimums for comment and reply cycles would produce better decisions and shield the FCC from pressure to rush to judgment.
• Minimum Review Periods. Commissioners have no assurances they will be afforded sufficient time to review draft items, which are prepared at the FCC chairman’s direction.
• Shot Clocks. Parties and the public should have some sense of when resolution will come.

Noticably absent from the staff Memo is any specific reference to the Universal Service Fund or its administrator, the Universal Service Fund Administrative Corporation.  It is arguable that, for the better part of the past decade, this singular FCC “program” coupled with the Wireline Competition Bureau and USAC, both of which share responsibility for producing the FCC Form 499 Instructions, have given rise to more “practices that weaken decision-making and jeopardize public confidence” than any other FCC policy or practice, combined.

Later this Spring, attorneys from our firm will publish a much-anticipated law review article in the Catholic University School of Law’s CommLaw Conspectus.  The article, entitled: THE MIS-ADMINISTRATION AND MISADVENTURES OF THE UNIVERSAL SERVICE FUND: A Study in the Importance of the Administrative Procedure Act to Government Agency Rulemaking, will provide an in-depth evaluation of the many issues, uncertainties and alleged abuses of authority arising from the USF and its administration since its inception.

If you are interested in receiving a copy of the law review article upon its publication, please contact Jonathan S. Marashlian via email at:  jsm@commlawgroup.com.