Even before Chairman Tom Wheeler proposed to issue a Notice of Proposed Rulemaking (NPRM) on possible new net neutrality rules to replace the ones vacated by the D.C. Cir. the May 15 Open Meeting of the Federal Communications Commission (FCC) promised to be one of the more important meetings in recent memory. As a result, it has become one of the more contentious in recent memory as well.
In addition to the net neutrality NPRM, we have an Order deciding key issues for the upcoming incentive auction (aka the 600 MHz auction, aka that really complicated thing where we pay broadcasters to get off spectrum they got for free by simultaneously selling it to wireless companies for mobile broadband). This mega item has two fairly important side pieces from my perspective: the future of unlicensed use in the TV broadcast bands (aka the TV white spaces (TVWS) aka “super wifi” aka “engineers will never be allowed to name anything ever again”) and possible limits on how much spectrum any one company can acquire (aka the “no piggies rule” aka spectrum aggregation policies aka “lawyers are not allowed to name anything ever again either”). The TVWS item has its own satellite proceeding about wireless microphones and coexistence between wireless mics and unlicensed use in an ever shrinking broadcast band.
So for those of you first timers, and those of you who have gone so long without a contentious FCC meeting you’ve forgotten how it’s done, I’ve prepared this helpful guide on “what is an open FCC meeting and how does it work.”
Mechanics of the meeting below . . .
What is an FCC Open Meeting?
This will no doubt seem confusing to those who just popped in for the net neutrality stuff and who would think, from the bulk of the coverage, that Chairman Wheeler is Supreme Dictator and gets to make all the decision himself. Not so much.
The FCC is an independent Commission. It has 5 members, no more than 3 of whom can be from the same political party. The current members (in addition to Chairman Wheeler (D)) are: Mingon Clyburn (D), Jessica Rosenworcel (D), Ajit Pai (R) and Mike O’Rielly (R)).
By law, the FCC must meet at least once each calendar month. Under the Government In The Sunshine Act, all Commission meetings are open to the public. If you plan to attend, you will need government issue i.d. (like an airport) to get into the building. The meeting starts at 10:30 a.m., but expect crowds. (Hopefully crowds of protesters outside as well, GO OCCUPY FCC! You are what democracy and an engaged citizenship looks like.) If you don’t want to brave the crowd, you can watch the livestream on the FCC’s website.
How Does An Open FCC Meeting Work?
At the meeting, the Chair will call the meeting to order, ask the Secretary to read the agenda, whereupon the Secretary will read the first item on the agenda.
Sitting in front of the Commission is a table where sit the FCC staff charged with presenting the item. The relevant staffer will read a summary of the item. The staffer will close with “staff request editorial privileges” which is a code word for “we may not actually have finished writing the item, especially if there was a bunch of last minute negotiation. We promise to get it written and circulated to all of you for sign off before we issue it to the public.”
Because of this, it may take some time for the actual item voted to appear on the FCC’s website or be publicly available. In recent years, the FCC has generally been pretty good about getting stuff up in a day or two. But it can take weeks, especially if the Commissioners don’t think the actual language of the Order reflects their understanding and they have multiple edits and wordsmithing.
The Chair will then open the floor to each Commissioner in turn, by seniority, to make comments/read an official statement. The batting Order is: Clyburn, Rosenworcel, Pai, O’Rielly. (It is coincidence that at the moment this is divided by party, with the Republicans all junior to the Democrats by seniority.) Then the Chairman will have the opportunity to make a statement. After that, the Chairman calls for a formal vote and each Commissioner votes.
So They Don’t Actually Debate The Item Or Edit The Item At The Meeting? What A Rip Off!
Yeah, life’s like that. Negotiation takes place before the meeting and this is theater. But it is important theater. Forcing the Commissioners to do their voting in public actually matters, and makes them accountable for how they vote.
How Do Members Of the Public Get To Speak?
You don’t. Sorry. Under the Administrative Procedure Act (APA) and the Government In The Sunshine Act, the Commissioners vote on the record of the proceeding, which closes in advance of the public meeting. The agenda for the meeting must be published in advance. Usually, the record closes (and therefore the public has no further ability to add to the record) a week before the meeting when the agenda is posted. The FCC waived that for the net neutrality item so the public could comment until the last minute.
But this is not an “open meeting” like a town hall where the FCC gathers evidence. This is like a floor vote in Congress. You get to watch the action but the outcome is usually determined in advance.
So What Happens After the Vote?
After covering all 4 items, the Chair will then open the floor for any further business. This is usually the opportunity when Commissioners acknowledge departing staff or introduce incoming staff or have other non-substantive items.
The Chairman will then gavel the meeting to a close and all the telecom insiders and the assembled press will mill around and gossip with each other, compare style notes, speculate about stuff, and generally do our insider clique thing that every regular gathering of human beings has done since the first cave dwellers got together to decide where to migrate next.
Anything In The End Credits?
After a few minutes, the Chair or other high ranking FCC official usually has a press conference to answer questions about the items and whatever other random questions reporters want to ask. You can bet someone will ask about the possible AT&T/DIRECTV deal, the possible Sprint/TMO deal, possible variations of either deal involving DISH, and other stuff that no one can answer because it isn’t in front of the FCC yet. We’ll also have lots of questions about Comcast/TWC/Charter, where the only thing the FCC will do is confirm or deny that they are waiting for the companies to file an application for the Charter deal before going ahead with the public notice and getting the ball rolling.
The press conference also gets streamed, so you won’t miss it if you watch at home. No, I do not have an FCC press conference drinking game, but if you do develop one, please link to it in the comments. No, Riff Trax does not do the FCC meeting, but I try to fill in for this loss by live tweeting (twitter handle=haroldfeld)
Stay tuned . . . .