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Report to Congressional Requesters: 

United States Government Accountability Office: 
GAO: 

December 2009: 

FCC Management: 

Improvements Needed in Communication, Decision-Making Processes, and 
Workforce Planning: 

GAO-10-79: 

GAO Highlights: 

Highlights of GAO-10-79, a report to congressional requesters. 

Why GAO Did This Study: 

Rapid changes in the telecommunications industry, such as the 
development of broadband technologies, present new regulatory 
challenges for the Federal Communications Commission (FCC). GAO was 
asked to determine (1) the extent to which FCC’s bureau structure 
presents challenges for the agency in adapting to an evolving 
marketplace; (2) the extent to which FCC’s decision-making processes 
present challenges for FCC, and what opportunities, if any, exist for 
improvement; and (3) the extent to which FCC’s personnel management and 
workforce planning efforts face challenges in ensuring that FCC has the 
workforce needed to achieve its mission. GAO reviewed FCC documents and 
data and conducted literature searches to identify proposed reforms, 
criteria, and internal control standards and compared them with FCC’s 
practices. GAO also interviewed current and former FCC chairmen and 
commissioners, industry stakeholders, academic experts, and consumer 
representatives. 

What GAO Found: 

FCC consists of seven bureaus, with some structured along functional 
lines, such as enforcement, and some structured along technological 
lines, such as wireless telecommunications and media. Although there 
have been changes in FCC’s bureau structure, developments in the 
telecommunications industry continue to create issues that span the 
jurisdiction of several bureaus. However, FCC lacks written procedures 
for ensuring that interbureau collaboration and communication occurs. 
FCC’s reliance on informal coordination has created confusion among the 
bureaus regarding who is responsible for handling certain issues. In 
addition, the lack of written procedures has allowed various chairmen 
to determine the extent to which interbureau collaboration and 
communication occurs. This has led to instances in which FCC’s final 
analyses lacked input from all relevant staff. Although FCC stated that 
it relies on its functional offices, such as its engineering and 
strategic planning offices, to address crosscutting issues, 
stakeholders have expressed concerns regarding the chairman’s ability 
to influence these offices. 

Weaknesses in FCC’s processes for collecting and using information also 
raise concerns regarding the transparency and informed nature of FCC’s 
decision-making process. FCC has five commissioners, one of which is 
designated chairman. FCC lacks internal policies regarding commissioner 
access to staff analyses during the decision-making process, and some 
chairmen have restricted this access. Such restrictions may undermine 
the group decision-making process and impact the quality of FCC’s 
decisions. In addition, GAO identified weaknesses in FCC’s processes 
for collecting public input on proposed rules. Specifically, FCC rarely 
includes the text of a proposed rule when issuing a Notice of Proposed 
Rulemaking to collect public comment on a rule change, although some 
studies have noted that providing proposed rule text helps focus public 
input. Additionally, FCC has developed rules regarding contacts between 
external parties and FCC officials (known as ex parte contacts) that 
require the external party to provide FCC a summary of the new 
information presented for inclusion in the public record. However, 
several stakeholders told us that FCC’s ex parte process allows vague 
ex parte summaries and that in some cases, ex parte contacts can occur 
just before a commission vote, which can limit stakeholders’ ability to 
determine what information was provided and to rebut or discuss that 
information. 

FCC faces challenges in ensuring it has the expertise needed to adapt 
to a changing marketplace. For example, a large percentage of FCC’s 
economists and engineers are eligible to retire in 2011, and FCC faces 
difficulty recruiting top candidates. FCC has initiated recruitment and 
development programs and has begun evaluating its workforce needs. GAO 
previously noted that strategic workforce planning should include 
identifying needs, developing strategies to address these needs, and 
tracking progress. However, FCC’s Strategic Human Capital Plan does not 
establish targets for its expertise needs, making it difficult to 
assess the agency’s progress in addressing its needs. 

What GAO Recommends: 

GAO recommends FCC, among other things, develop written policies on 
interbureau coordination and commissioner access to staff analyses; 
revise its public comment process and its ex parte policies; and 
develop targets identifying expertise needs, strategies for meeting 
targets, and measures for tracking progress. FCC generally concurred 
with GAO’s recommendations. 

View [hyperlink, http://www.gao.gov/products/GAO-10-79] or key 
components. For more information, contact Mark L. Goldstein at (202) 
512-2834 or goldsteinm@gao.gov. 

[End of section] 

Contents: 

Letter: 

Background: 

FCC's Current Structure and Informal Coordination Processes Can Limit 
FCC's Ability to Efficiently Address Crosscutting Issues: 

Weaknesses in FCC's Processes for Collecting and Using Information Can 
Undermine the Transparency and Effectiveness of the Decision-Making 
Process: 

FCC Faces a Number of Workforce Challenges but Does Not Track the 
Progress of Its Efforts to Address Those Challenges: 

Conclusions: 

Recommendations for Executive Action: 

Agency Comments: 

Appendix I: Objectives, Scope, and Methodology: 

Appendix II: FCC Bureaus and Functions: 

Appendix III: Comments from the Federal Communications Commission: 

Appendix IV: GAO Contact and Staff Acknowledgments: 

Tables: 

Table 1: Projected 2011 Retirement Eligibility for FCC Engineers and 
Economists: 

Table 2: Comparison of FCC Responses and Responses from the Rest of the 
Government on Selected Items from the 2008 OPM Federal Human Capital 
Survey: 

Table 3: Organizations Interviewed: 

Figures: 

Figure 1: FCC's Rulemaking Process: 

Figure 2: FCC Organization Chart and Timeline of Changes: 

Figure 3: Changes in the Number of Economists, Engineers, and Other 
Staff Employed at FCC: 

Abbreviations: 

APA: Administrative Procedures Act: 

Communications Act: Communications Act of 1934: 

CGB: Consumer and Governmental Affairs Bureau: 

DOJ: Department of Justice: 

DSL: Digital Subscriber Line: 

FCC: Federal Communications Commission: 

FHCS: Federal Human Capital Survey: 

FNPRM: Further Notice of Proposed Rulemaking: 

NOI: Notice of Inquiry: 

NPRM: Notice of Proposed Rulemaking: 

NRC: Nuclear Regulatory Commission: 

OET: Office of Engineering and Technology: 

OPM: Office of Personnel Management: 

OSP Office of Strategic Planning and Policy Analysis: 

SBA: Small Business Administration: 

Sunshine Act: Government in the Sunshine Act of 1976: 

Telecommunications Act: Telecommunications Act of 1996: 

[End of section] 

United States Government Accountability Office: 
Washington, DC 20548: 

December 17, 2009: 

The Honorable Rick Boucher:
Chairman:
Subcommittee on Communications, Technology, and the Internet: 
House of Representatives: 

The Honorable Edward J. Markey:
House of Representatives: 

Federal Communications Commission (FCC) regulations affect the daily 
lives of every American, from rules governing who may own the morning 
newspaper to the networks connecting the last phone call at night. FCC- 
regulated industries provide Americans with daily access to 
communications services, including wireline and wireless telephone 
service, Internet access services, and radio and video services. FCC's 
regulatory authority was substantially amended by the 
Telecommunications Act of 1996 (Telecommunications Act), with a goal of 
fostering competition among companies that used similar technology to 
provide services. However, the act did not fully envision the 
competition that has subsequently developed among previously distinct 
industries, such as wireless service competing with both local and long-
distance wireline service, and video and telephone service providers 
competing to offer "bundles" of phone, video, and Internet services. As 
a result, some have argued that FCC's current statutory framework 
applies different regulations to competing industries and has become 
inconsistent with current market conditions. FCC has acknowledged that 
its ability to respond to the evolving marketplace depends upon 
effective and transparent communication among FCC staff and with the 
members of the public, as well as the assurance that the agency has the 
information and expertise needed to adapt to evolving conditions. 
However, the agency has faced a series of critiques regarding the 
interaction among the chairman, commissioners, and bureau staff; 
transparency in its decision making; and workforce and personnel 
issues. To address these issues, a number of reforms have been 
proposed. In June 2009, Chairman Genachowski appointed a special 
counsel for FCC reform and directed FCC's general counsel and managing 
director to perform a thorough review of the existing processes and to 
make recommendations for improvement. As part of this process, FCC has 
launched an internal online forum where employees can submit ideas for 
improvement and reform, and FCC is planning on launching a section on 
FCC's Web site that will allow the public to offer ideas for FCC reform 
as well. 

Seeking information about FCC's ability to achieve its mission, you 
asked us to review FCC's organization, decision-making process, and 
personnel management. Accordingly, this report examines (1) the extent 
to which FCC's bureau structure presents challenges for the agency in 
adapting to an evolving marketplace; (2) the extent to which FCC's 
decision-making processes present challenges for FCC, and what 
opportunities, if any, exist for improvement; and (3) the extent to 
which FCC's personnel management and workforce planning efforts ensure 
that FCC has the workforce needed to achieve its mission. 

To describe the challenges FCC's bureau structure presents the agency 
in adapting to an evolving marketplace, we reviewed FCC procedures, 
applicable laws, and reviewed academic literature on organizational 
theory. To identify the extent to which FCC's decision-making processes 
present challenges for FCC and opportunities for improvement, we 
reviewed literature on potential reforms to the federal rulemaking 
process and on the commission structure and decision-making process. We 
interviewed officials from the Nuclear Regulatory Commission, Federal 
Energy Regulatory Commission, and the Federal Trade Commission and 
reviewed their internal commission procedures to understand how other 
independent regulatory agencies implement the commission decision- 
making process. We reviewed FCC's decision-making procedures and public 
comment and ex parte rules, and compared certain aspects to standards 
established in our internal control standards and other relevant 
documents. To determine the extent to which FCC's personnel management 
and workforce planning efforts ensure that FCC has the workforce needed 
to achieve its mission, we reviewed our prior products related to 
strategic workforce planning and human capital challenges, and reviewed 
FCC's 2007-2011 Strategic Human Capital Plan and FCC-generated data on 
overall staff levels, hiring, attrition, and retirement eligibility for 
the period of 2003 to 2008. We analyzed results from the Office of 
Personnel Management's (OPM) Federal Human Capital Survey (FHCS) for 
2008 and compared FCC responses on various items with the results for 
the rest of government. We determined that the staffing data provided 
by FCC and the FCC 2008 FHCS survey data are sufficiently reliable for 
the purposes of this report. In addition, to address all of these 
questions, we interviewed current and former FCC officials, including 
commissioners and chairmen, as well as industry, consumer, and academic 
stakeholders. 

We performed our review from August 2008 to October 2009 in accordance 
with generally accepted government auditing standards. Those standards 
require that we plan and perform the audit to obtain sufficient, 
appropriate evidence to provide a reasonable basis for our findings and 
conclusions based on our review objectives. We believe that the 
evidence obtained provides a reasonable basis for our findings and 
conclusions based on our review objectives. A detailed discussion of 
our scope and methodology appears in appendix I. 

Background: 

FCC was established by the Communications Act of 1934 (Communications 
Act). The Communications Act, as amended, specifies that FCC was 
established for the "the purpose of regulating interstate and foreign 
commerce in communications by wire and radio so as to make available, 
so far as possible, to all the people of the United States... a rapid, 
efficient, Nation-wide, and world-wide wire and radio communication 
service with adequate facilities at reasonable charges, for the purpose 
of the national defense [and] for the purpose of promoting safety of 
life and property through the use of wire and radio communication." 
[Footnote 1] FCC is responsible for, among other things, making 
available rapid, efficient, nationwide, and worldwide wire and radio 
communication services at reasonable charges and on a nondiscriminatory 
basis, and more recently, promoting competition and reducing regulation 
of the telecommunications industry in order to secure lower prices and 
high-quality services for consumers.[Footnote 2] FCC established six 
strategic goals to support its mission:[Footnote 3] 

1. Promote access to robust and reliable broadband products and 
services[Footnote 4] for all Americans. 

2. Promote a competitive framework for communications services that 
support the nation's economy. 

3. Facilitate efficient and effective use of nonfederal spectrum 
[Footnote 5] to promote growth and rapid development of innovative and 
efficient communications technologies and services. 

4. Develop media regulations that promote competition, diversity, and 
localism and facilitate the transition to digital modes of delivery. 

5. Promote access to effective communications during emergencies and 
crises and strengthen measures for protecting the nation's critical 
communications infrastructure. 

6. Strive to be a highly productive, adaptive, and innovative 
organization that maximizes the benefit to stakeholders, staff, and 
management from effective systems, processes, resources, and 
organizational culture. 

FCC's basic structure is prescribed by statute. FCC is composed of five 
commissioners, appointed by the President and approved by the Senate to 
serve 5-year terms; the President designates one member to serve as 
chairman. No more than three commissioners may come from any one 
political party.[Footnote 6] The commission has flexibility in how it 
creates and organizes divisions or bureaus responsible for specific 
work assigned. Specifically, the Communications Act, as amended, 
requires the commission to organize its staff into (1) integrated 
bureaus, to function on the basis of the commission's principal 
workload operations, and (2) such other divisional organizations as the 
commission deems necessary.[Footnote 7] FCC currently consists of seven 
bureaus that are responsible for a variety of issues that affect 
consumers and the telecommunications industry, including analyzing 
complaints, licensing, and spectrum auctions, and 10 offices that 
provide support services for the bureaus and commission. Appendix II 
has a detailed description of each bureau and office. Each bureau is 
required by statute to include the legal, engineering, accounting, 
administrative, clerical, and other personnel that the commission 
determines necessary to perform its functions.[Footnote 8] FCC has 
identified attorneys, engineers, and economists as the agency's main 
professional categories. Although FCC has staff offices with 
concentrations of each profession (attorneys in the Office of General 
Counsel, engineers in the Office of Engineering and Technology, and 
economists in the Office of Strategic Planning and Policy Analysis), 
these professions are also integrated into the bureaus. 

Under the Communications Act, as amended, FCC has broad authority to 
execute its functions. The act, as amended, is divided into titles and 
sections that describe various powers and concerns of the commission, 
with different titles describing the laws applicable to different 
services. For example, there are separate titles outlining the specific 
provisions for telecommunications services and for cable services. This 
statutory structure created distinct regulatory "silos" that equated 
specific services with specific network technologies. However, 
technological advances in communications infrastructure have led to a 
convergence of previously separate networks used to transmit voice, 
data, and video communications. For example, telephone, cable, and 
wireless companies are increasingly offering voice, data, and video 
services over a single platform. 

FCC is charged with carrying out various activities, including issuing 
licenses for broadcast television and radio; overseeing licensing, 
enforcement, and regulatory functions of cellular phones and other 
personal communication services; regulating the use of radio spectrum 
and conducting auctions of licenses for spectrum; investigating 
complaints and taking enforcement actions if it finds that there have 
been violations of the various communications laws and commission rules 
that are designed to protect consumers; addressing public safety, 
homeland security, emergency management, and preparedness; educating 
and informing consumers about communications goods and services; and 
reviewing mergers of companies holding FCC-issued licenses. The 
Telecommunications Act also expanded FCC's responsibilities for 
universal service beyond the traditional provision of affordable, 
nationwide access to basic telephone service to include eligible 
schools, libraries, and rural health care providers.[Footnote 9] 

Two major laws that affect FCC's decision-making process are the 
Government in the Sunshine Act of 1976 (Sunshine Act) and the 
Administrative Procedure Act of 1946.[Footnote 10] 

* Government in the Sunshine Act of 1976:[Footnote 11] The Sunshine Act 
applies to agencies headed by collegial bodies. Under the Sunshine Act, 
FCC is required to provide sufficient public notice that the meeting of 
commissioners will take place.[Footnote 12] The agency generally must 
also release the meeting's agenda, known as the Sunshine Agenda, no 
later than 1 week before the meeting. In addition, the Sunshine Act 
prohibits more than two of the five[Footnote 13] FCC commissioners from 
deliberating with one another to conduct agency business outside the 
context of the public meeting.[Footnote 14] 

* Administrative Procedure Act of 1946:[Footnote 15] The Administrative 
Procedure Act (APA) is the principal law governing how agencies make 
rules. The law prescribes uniform standards for rulemaking, requires 
agencies to inform the public about their rules and proposed changes, 
and provides opportunities for public participation in the rulemaking 
process. Most federal rules are promulgated using the APA-established 
informal rulemaking process, which requires agencies to provide public 
notice of proposed rule changes, as well as provide a period for 
interested parties to comment on the notices--hence the "notice and 
comment" label. The notice and comment procedures of the APA are 
intended to encourage public participation in the administrative 
process, to help educate the agency, and thus, to produce more informed 
agency decision making. Experts have noted that public participation 
promotes legitimacy by creating a sense of fairness in rulemaking, and 
transparency helps both the public and other branches of government to 
assess whether agency decisions are in fact being made on the grounds 
asserted for them and not on other, potentially improper, grounds. APA 
does not generally address time frames for informal rulemaking actions, 
limits on contacts between agency officials and stakeholders, or 
requirements for "closing" dockets. 

FCC implements its policy initiatives through a process known as 
rulemaking, which is the governmentwide process for creating rules or 
regulations that implement, interpret, or prescribe law or policy. 
[Footnote 16] When developing, modifying, or deleting a rule, FCC 
relies on public input provided during the rulemaking process. 

Before beginning the rulemaking process, FCC may issue an optional 
Notice of Inquiry (NOI) to gather facts and information on a particular 
subject or issue to determine if further action by the FCC is 
warranted.[Footnote 17] Typically, an NOI asks questions about a given 
topic and seeks comments from stakeholders on that topic. If FCC issues 
an NOI, it must issue a Notice of Proposed Rulemaking (NPRM) before 
taking final action on a rule, unless an exception to notice and 
comment rulemaking requirements applies. FCC issues NPRMs to propose 
new rules or to change existing rules, and the issuance of an NPRM 
signals the beginning of the rulemaking process.[Footnote 18] The NPRM 
provides an opportunity for the stakeholders to submit their comments 
on the proposal and to reply to the comments submitted by other 
stakeholders.[Footnote 19] A summary of the NPRM is published in the 
Federal Register and announces the deadlines for filing public comments 
and reply comments. The NPRM also indicates the rules for ex parte 
communications between agency decision makers and other persons during 
the proceeding. An ex parte presentation discusses the merits or 
outcome of a proceeding, and if written, is not served on all the 
parties to a proceeding, and if it is oral, it is made without advance 
notice to the parties or an opportunity for them to be present. 
[Footnote 20] FCC generally classifies its rulemaking proceedings as 
"permit-but-disclose" proceedings, in which ex parte presentations to 
FCC officials are permissible but subject to certain disclosure 
requirements.[Footnote 21] Generally, the external party must provide 
two copies of written presentations to be filed in the public record. 
If an external party makes an oral ex parte presentation that presents 
data or arguments not already reflected in the party's written comments 
or other filings in that proceeding, then the external party must 
provide FCC's Secretary with an original and one copy of a summary of 
the new data or arguments to be filed in the public record.[Footnote 
22] Once FCC places an item on the Sunshine Agenda, which lists the 
items up for a vote at the next open commission meeting, ex parte 
contacts are restricted, with several exemptions.[Footnote 23] In 
addition, FCC provides the stakeholders the ability to submit 
electronic comments via the FCC Web site. After reviewing the comments 
received in response to an NPRM, the FCC may issue a Further Notice of 
Proposed Rulemaking (FNPRM) seeking additional public comment on 
specific issues in the proceeding. Following the close of the reply and 
comment period, FCC officials may continue discussing the issue with 
external parties through ex parte presentations. Staff in the bureaus 
assigned to work on the order begin developing and analyzing the public 
record and the information provided in ex parte contacts to propose an 
action for the commission to vote on, such as adopting final rules, 
amending existing rules, or stating that there will be no changes. The 
chairman decides when the commission will vote on final rules and 
whether the vote will occur during a public meeting or by circulation, 
which involves electronically circulating written items to each of the 
commissioners for approval. See figure 1 for an illustration of the 
steps in FCC's rulemaking process. 

Figure 1: FCC's Rulemaking Process: 

[Refer to PDF for image: illustration] 

Initiation: 
* May be initiated internally, externally, or statutorily. 

Collecting public comment[A]: 
* FCC issues Notice of Inquiry to collect public comments on a 
topic[B]; 
* Public submits comments during the time frame established in the 
notice[B]; 
* FCC issues Notice of Proposed Rulemaking inviting public comments on 
new rules or changes to existing rules[B]; 
* Public submits comments during the time frame established in the 
notice[B]; 
* FCC issues Further Notice of Proposed Rulemaking to further clarify 
and seek more information and public comment on the commission's 
proposed changes[B,C]; 
* Public submits comments during the time frame established in the 
notice. 

Internal analysis: 
* FCC staff in the bureaus and offices assigned to the issue analyze 
the information in the public record and propose an action for 
commission consideration[B]. 

Commission vote: 
* Chairman decides whether and when the commission votes on an item[B]; 
* Vote by circulation: commissioners electronically circulate and vote 
on an item[B]; 
* FCC releases the Sunshine Agenda of items scheduled for a vote at a 
public meeting. The public may not contact the agency to discuss any 
matters that appear on the Sunshine Agenda unless there is a specific 
exemption; 
* Commissioners vote on items at a public meeting. 

Issuance: 

Report and Order Adopts new rules, amends existing rules, or states 
that there will be no changes. 

Source: GAO analysis of FCC information. 

[A] This graphic focuses on the process for collecting public comments 
for APA notice and comment rulemaking proceedings. FCC may collect 
public comment through other means (such as soliciting comments on a 
petition for rulemaking through a Public Notice during the initiation 
phase). A person outside of the FCC may file a Petition for Rulemaking 
to suggest new rules or changes to existing rules. Unless directed in 
the FCC's Public Notice seeking comment on the petition, the public has 
30 days from the date of the Public Notice to submit comments on 
whether the FCC should grant or deny the petition. After reviewing the 
comments received in response to the petition, the FCC issues an order 
disposing of the petition, an NOI, or an NPRM. 

[B] Period during which public may submit ex parte comments to FCC 
officials for any published notice categorized as permit-but-disclose. 
Prohibited for Sunshine Agenda items, with some exceptions. 

[C] Step is optional. 

[End of figure] 

FCC's Current Structure and Informal Coordination Processes Can Limit 
FCC's Ability to Efficiently Address Crosscutting Issues: 

Despite Changes to Modernize FCC's Bureau Structure, Market and 
Technological Changes Have Created Issues That Span FCC's Bureaus: 

Although FCC has established some function-based bureaus and 
reorganized its bureaus to reflect some changes in the 
telecommunications market, further evolutions and the growth of new 
technologies have continued to create crosscutting issues that span 
several bureaus. FCC's bureaus are still somewhat structured along the 
traditional technology lines of wireless, wireline, satellite, and 
media, despite the fact that one company may provide services that span 
such distinctions or that competing services may be regulated by 
different bureaus. Since the Telecommunications Act, chairmen have made 
changes to FCC's bureau structure. In 1999 Chairman Kennard[Footnote 
24] issued A New FCC for the 21ST Century, which called for 
reorganizing FCC's bureau structure along functional, rather than 
technological, lines in order to carry out FCC's core responsibilities 
more productively and efficiently. Subsequently, FCC consolidated 
enforcement functions and personnel from the Common Carrier, Mass 
Media, Wireless Telecommunications, and Compliance and Information 
Bureaus into a new Enforcement Bureau. In addition, FCC consolidated 
consumer complaint and public information functions of the various 
bureaus into a Consumer Information Bureau. 

Chairman Powell[Footnote 25] also issued a reorganization plan to 
promote a more efficient, responsive, and effective organizational 
structure. This reform and reorganization plan included creating three 
new bureaus and one new office. FCC consolidated the Mass Media Bureau 
and Cable Services Bureau into a new overarching Media Bureau, and 
restructured the Common Carrier Bureau and renamed it the Wireline 
Competition Bureau. Additionally, the Consumer Information Bureau was 
given increased policy making and intergovernmental affairs 
responsibilities and was renamed the Consumer and Governmental Affairs 
Bureau. Finally, the Office of Strategic Planning and Policy Analysis 
subsumed the Office of Plans and Policy. 

In 2006, under Chairman Martin,[Footnote 26] FCC established the Public 
Safety and Homeland Security Bureau, consolidating existing public 
safety and homeland security functions and issues from the Enforcement, 
Wireless Telecommunications, Wireline Competition, and Media Bureaus, 
and the offices of Engineering and Technology, Strategic Planning and 
Policy Analysis, and Managing Director. Figure 2 shows FCC's current 
structure and how the bureaus and offices have changed since the 
Telecommunications Act. 

Figure 2: FCC Organization Chart and Timeline of Changes: 

[Refer to PDF for image: illustration] 

Organization chart (patterned boxes correspond to timeline below): 

Top level: 
Commissioners. 

Second level, reporting to Commissioners: 
Office of Inspector General. 

Third level, reporting to Commissioners: 
Office of Engineering and Technology; 
Office of General Counsel; 
Office of Managing Director; 
Office of Media Relations. 

Fourth level, reporting to Commissioners: 
Office of Administrative Law Judges; 
Office of Legislative Affairs; 
Office of Communications Business Opportunities; 
Office of Workplace Diversity; 
Office of Strategic Planning and Policy Analysis. 

Fifth level, reporting to Commissioners: 
International Bureau; 
Wireless Telecommunications Bureau; 
Enforcement Bureau; 
Consumer and Governmental Affairs Bureau; 
Media Bureau; 
Wireline Competition Bureau; 
Public Safety and Homeland Security Bureau. 

Timeline: 

February 1996: 
Telecommunications Act signed into law. 

August 1999: 
A New FCC for the 21st Century released. 

October 1999: 
* Enforcement Bureau created, consolidating enforcement functions and 
personnel from the Common Carrier, Mass Media, Wireless 
Telecommunications and Compliance, and Information Bureaus. 

* Consumer Information Bureau created, consolidating the Office of 
Public Affairs’ Public Service and Reference Operations divisions, most 
of the existing Wireless Telecommunications and Common Carrier Bureau 
staff responsible for facilitating the resolution of informal consumer 
complaints, and staff from other bureaus responsible for handling 
public information requests. 

March 2002: 
* Consumer and Governmental Affairs Bureau created from the Consumer 
Information Bureau. 

* Media Bureau created, consolidating Mass Media Bureau and Cable 
Services Bureau. 

* Wireline Competition Bureau created, restructuring the Common Carrier 
Bureau including combining division responsibilities and collapsing six 
divisions into four: Competition Policy, Pricing Policy, Industry 
Analysis and Technology, and Telecommunications Access Policy. 

February 2003: 
* Office of Strategic Planning and Policy Analysis created, subsuming 
the Office of Plans and Policy, as well as its policy functions. 

March 2006: 
* Public Safety and Homeland Security Bureau created, consolidating 
existing public safety and homeland security functions and issues from 
the Enforcement, Wireless Telecommunications, Wireline Competition, and 
Media bureaus, and the offices of Engineering and Technology, Strategic 
Planning and Policy Analysis, and Managing Director. 

Source: GAO analysis of FCC data. 

[End of figure] 

Despite these changes in FCC's organizational structure, the changing 
telecommunications market and the development of new technologies have 
created new issues that span several bureaus. For example, broadband 
services--which became available in the late 1990s--do not fall 
exclusively within the jurisdiction of a particular FCC bureau or 
regulatory category. As a result, FCC created broadband regulations in 
a piecemeal fashion, issuing four separate orders (one for cable 
modems, one for facilities-based wireline broadband Internet access, 
one for broadband over power line, and one for wireless broadband 
Internet access) to regulate competing methods of providing broadband 
services by the same standard. The Telecommunications Act allows FCC to 
classify services as telecommunications services[Footnote 27] or 
information services,[Footnote 28] the latter being subject to fewer 
regulatory restrictions. In 2002, FCC determined that cable modem 
service should be categorized as an information service.[Footnote 29] 
Three years after FCC issued the cable modem order and shortly after 
the Supreme Court upheld FCC's regulatory classification for cable 
modem service,[Footnote 30] FCC adopted an order that granted providers 
of facilities-based wireline broadband Internet access the same 
regulatory classification and treatment as cable modem Internet access 
providers.[Footnote 31] In November 2006, FCC issued an order 
classifying broadband over power line-enabled Internet access service 
as an information service.[Footnote 32] In March 2007, FCC issued an 
order classifying wireless broadband Internet access as an information 
service.[Footnote 33] In addition, as companies that once provided a 
distinct service (such as cable and telephone companies) have shifted 
to providing bundles of services (voice, video, and data services) over 
a broadband platform, new debates have arisen regarding how rules 
previously intended for a specific industry and service (such as 
universal service, customer retention rules, and video franchising 
rules) should be applied to companies now providing multiple services. 
FCC officials told us they are currently looking across the agency to 
identify challenges that convergence poses to the existing structure 
and will first focus on how FCC's systems, such as its data collection 
efforts, can be modified to address these challenges, but they may 
consider structural changes later. 

FCC Lacks Written Policies for Ensuring the Interbureau Collaboration 
and Communication Needed to Address Crosscutting Issues: 

According to agency officials, FCC uses informal interbureau 
collaboration, working groups, and task forces to address convergence 
and crosscutting issues, but FCC lacks written policies outlining how 
interbureau coordination and collaboration is to occur.[Footnote 34] 
FCC handles convergence by holding interbureau meetings to discuss the 
progress of items and to address upcoming issues. When a crosscutting 
item requires the input of multiple bureaus or offices, one is 
considered the "lead" and is responsible for coordinating with all 
other bureaus or offices that have a direct concern or interest in the 
document and ensuring they have the opportunity to review and comment 
on an agenda item prior to submission to the commission. Generally, if 
a proceeding (such as a petition or draft order) clearly falls under a 
specific bureau's purview, that bureau will serve as the lead on the 
issue. The determination of the lead bureau is made by each bureau's 
management or by the precedence of which bureau handled a particular 
issue in the past. For example, the Wireless Telecommunications Bureau 
would be the lead for items regarding licensed spectrum rules because 
it has handled these issues in the past. FCC officials told us that on 
more complex issues, or items that do not have an evident lead bureau, 
the chairman is ultimately responsible for selecting the lead bureau. 
Although FCC relies on this interbureau coordination, it does not 
provide specific steps or guidance regarding how or when this 
coordination is to occur, with some limited exceptions.[Footnote 35] 
FCC officials confirmed that there are no written policies outlining 
how the bureaus should coordinate with one another. 

FCC's lack of written policies and its reliance on informal interbureau 
coordination to address issues that span beyond the purview of a single 
bureau can result in inefficiencies. For example, one FCC official told 
us that while FCC was conducting a merger review of two major media 
companies, the review process was delayed because of confusion 
regarding which bureau was responsible. Since each of the companies 
merging had assets regulated by different FCC bureaus, it was unclear 
which bureau was the designated lead and would be responsible for a 
specific portion of the merger review process. Although the chairman 
eventually designated a lead bureau, the time it took for this to 
happen slowed down the process, and the overall lack of coordination 
made the process less efficient. Our Internal Control and Management 
Evaluation Tool[Footnote 36] emphasizes the importance of internal 
communications, specifically noting the need for mechanisms that allow 
for the easy flow of information down, across, and up the organization, 
including communications between functional activities.[Footnote 37] 

In addition, the absence of written policies allows interbureau 
collaboration and communication to vary from chairman to chairman. FCC 
officials noted significant differences between prior chairmen's 
emphasis on bureau interaction. For example, former Chairman Kevin 
Martin required staff to seek approval from management before 
contacting other bureau and office staff. Current and former FCC 
officials told us that such policies limited interbureau collaboration 
and staff-to-staff communication. By contrast, then-Acting Chairman 
Copps instituted a weekly Chairman's Office Briefing with bureau and 
office chiefs, or their designees, and a representative from each of 
the commissioners' offices with the stated intent of promoting 
openness, a practice that continues under Chairman Genachowski. In 
addition, an FCC official told us that under Chairman Powell, FCC had a 
memorandum outlining how one bureau was to note its concurrence or 
disagreement with a draft order prepared by another bureau, but that 
the practice largely lapsed under Chairman Martin. 

The lack of written policies also allows the chairman complete 
discretion when assigning bureau staff to address an item, leading to 
instances where all relevant staff were not included in developing an 
item. For example, according to FCC officials, the Wireless 
Telecommunications Bureau was not included in drafting a universal 
service order that increased the portion of universal service funding 
provided by wireless customers. FCC officials told us the resulting 
order did not fairly characterize the wireless industry's prior 
efforts, which led the industry to file reconsideration petitions that 
required additional time to address. Other officials told us that in 
2008, FCC received filings in its Wireline Competition Bureau and its 
Enforcement Bureau regarding allegations that Comcast was 
discriminating against customers using peer-to-peer[Footnote 38] 
sharing protocols to exchange videos. FCC officials told us that then- 
Chairman Martin directed the Office of General Counsel to draft a 
resolution without coordinating or discussing the issue with the other 
bureaus and that this caused uncertainty in the Enforcement Bureau 
regarding how to address pending complaints. 

FCC officials and outside stakeholders stated that communication among 
bureaus is necessary for addressing convergence and other crosscutting 
issues under the current bureau structure. Three FCC officials told us 
that convergence in the telecommunications market requires FCC's 
bureaus to actively communicate with one another so they can address 
issues that span multiple bureaus. One of these officials also noted 
that convergence makes active communication among bureaus even more 
important because if communication fails or does not take place, issues 
might inadvertently not be addressed before the information is 
presented to the commissioners and their staff. 

FCC Relies on Its Functional Offices to Address Some Aspects of 
Convergence, but the Chairman's Influence Over These Offices Raises 
Independence Issues That Can Affect FCC's Ability to Rely on Them: 

FCC's functional offices, such as the Office of Engineering and 
Technology (OET) and the Office of Strategic Planning and Policy 
Analysis (OSP), provide a broader scope than the platform-based bureaus 
and address some of the issues posed by convergence, but the chairman's 
influence can affect FCC's ability to use these offices to address 
crosscutting issues.[Footnote 39] 

With regard to OET, stakeholders, including commissioners and trade 
associations, have raised concerns about whether the chairman's 
authority over office staff impacts OET's ability to provide 
independent expertise. Two commissioners told us that although OET had 
high-quality staff, the commissioners question whether the information 
OET provides is impartial, since all bureau and office chiefs report to 
the chairman. One of the commissioners emphasized that without reliable 
unbiased information, it can be difficult to make good decisions on 
scientific and technical questions. Additionally, three trade 
associations also expressed concern about the independent nature of 
OET, with one indicating that there is no way to tell if the 
information coming from OET is independent of the chairman or the best 
of several options. 

Similarly, the emphasis FCC places on OSP and the work it does varies 
according to the chairman, and in recent years, OSP's output has 
diminished. OSP, working with the Office of Managing Director, is 
responsible for developing a strategic plan identifying short-and long- 
term policy objectives for the agency; working with the chairman to 
implement policy goals; and acting as expert consultants in areas of 
economic, business and market analysis, and other subjects that cut 
across traditional lines, such as the Internet. One former chief 
economist told us that each chairman has discretion over how he will 
use OSP, and therefore, the role of the office in providing economic 
analyses will depend on whether the chairman values economic research. 
Another former chief economist noted that FCC's emphasis on economic 
analysis depends on the chairman's preferences. OSP is responsible for 
producing publicly available work papers that monitor the state of the 
communications industry to identify trends, issues, and overall 
industry health. However, OSP did not release any working papers 
between September 2003 and February 2008 and has not released any 
working papers since issuing three in February 2008. Given OSP's 
responsibility in developing a strategic plan that identifies short-and 
long-term policy objectives for the agency, a lack of research can put 
FCC at a distinct disadvantage in preparing for the future. 

To address these issues, some stakeholders we spoke with suggested that 
adding more resources to OSP or creating a separate economics bureau 
would allow for more independent and robust economic analysis. One 
former chief economist told us that although the research function of 
FCC is under OSP's purview, OSP does not have the resources needed, and 
providing additional resources would help them produce more independent 
and higher-quality analyses. A former chairman expressed similar 
concerns about OSP's resources. Two other former chief economists 
suggested that if economists were centralized in one group or office, 
then economic analysis would have greater influence in the decision- 
making process. Similarly, a researcher found that another independent 
regulatory agency's use of an independent and centralized Bureau of 
Economics leads to routine use of cost-benefit analysis during its 
investigations and enforcement actions.[Footnote 40] Finally a trade 
association told us that OSP has always been on the periphery of the 
policy-making process because it lacks the budget and staff levels to 
complete comprehensive industry analysis, and that OSP needs additional 
resources to perform more useful policy analysis. 

While some stakeholders have suggested consolidating economists in a 
centralized bureau, others have noted the need to maintain economic 
expertise within the bureaus. Officials from each bureau we spoke with 
told us having economists imbedded in each bureau was useful because it 
allows the bureaus to access economic expertise more easily. For 
example, economists may lead teams on particular issues, review 
mergers, gather subscriber data, create economic development policies, 
manage industry reporting, and produce economic reports and 
information, and a bureau's ability to function could suffer if the 
economists were taken out of the bureau. One study that examined 
organizational structures for attorneys and economists in enforcement 
agencies found that having economists and attorneys working together in 
the same division and organized around a particular industry or sector, 
as they do at FCC, is advantageous for a number of reasons.[Footnote 
41] The study found the main advantage of this structure is that it 
focuses economic analysis on the questions of interest to the ultimate 
decision makers. Additionally, the strong links between economists and 
attorneys working in the same division help to ensure that economists 
are answering all the legally relevant questions and the decision 
makers can direct the efforts of economists to answer the questions 
that concern them. However, these arguments do not necessarily preclude 
the need to examine OSP's role and determine whether it is able to 
address the economic implications of broad policy issues. 

Little Consensus Exists on Whether or How to Restructure FCC's Bureaus 
and Offices: 

Several stakeholders have proposed a variety of options for 
restructuring FCC. One proposal is to replace industry-based bureaus 
with bureaus divided along functional goals. Some stakeholders have 
expressed concerns that FCC's current bureau structure may lead to 
bureaus identifying with the industry they regulate, rather than taking 
an overarching view of an issue. One trade group representative and a 
former FCC chairman stated that this leads to "fiefdoms," where the 
staff members begin to act more like advocates for the industry they 
are regulating than as experts looking for the best decision. In 
addition, stakeholders stated that the culture of the bureaus may vary-
-depending on their history and the industry they regulate--and that 
this could create problems if competing services are treated 
differently based on which bureau is responsible for regulating the 
service. In response to such concerns, some stakeholders suggested that 
FCC create new functional bureaus that focus on areas that span a 
variety of service providers and industries, such as competition, 
licensing, and spectrum management. For example, one former FCC 
official suggested that FCC could create one bureau to handle spectrum 
management issues, which are currently divided among the Wireless 
Telecommunications Bureau, the Office of Engineering and Technology, 
the International Bureau, and the Public Safety and Homeland Security 
Bureau. Another stakeholder suggested FCC structure bureaus along 
overarching policy goals, such as culture and values (which would 
include broad issues such as obscenity, advertising rules, and public 
broadcasting) and markets (which would include allocation of spectrum, 
competition, and market analysis). The stakeholder stated that by 
reorganizing along such lines, FCC would create departments with 
technology and industry-neutral responsibilities for key social 
mandates, which would better enable FCC to address issues that span 
industry lines. 

However, a number of stakeholders and FCC officials expressed caution 
when discussing restructuring or reforming the bureaus. Restructuring 
is often resource-intensive and disruptive for an agency and can impact 
staff morale. In addition, it is unclear whether restructuring the 
bureaus would improve FCC's ability to regulate these industries, since 
the Communications Act, as amended, establishes different regulatory 
regimes based on how a service is provided. Some industry and FCC 
stakeholders we interviewed also noted that in some cases, the current 
bureau structure works well, such as when issues fall within a specific 
bureau's purview. For example, one FCC official noted that in some 
cases, it is useful to have various functions housed in a specific 
industry-based bureau, explaining that since rulemaking and licensing 
functions are housed in the Wireless Telecommunications Bureau, bureau 
staff understand the implications of administering the licensing rules 
made during the rulemaking process. Similarly, FCC officials stated 
that the industry-based bureaus allow staff to develop in-depth 
expertise on an issue. For example, an FCC official stated that the 
Media Bureau's video division staff understand how to address most 
broadcast licensing and market issues and that splitting up the staff 
could result in a loss of group cohesion and institutional knowledge. 

Regardless of the organizational structure FCC decides to pursue, it is 
certain that technological advances and marketplace changes will 
contribute to an evolving regulatory landscape for the commission. To 
anticipate and quickly respond to these changing conditions, FCC will 
need mechanisms to ensure that staff can routinely and reliably 
coordinate and communicate across bureaus in order to foster and 
harness FCC's collective knowledge on issues that span the bureaus. The 
absence of written policies outlining how bureaus should communicate 
and collaborate on crosscutting issues has led to inefficiencies in 
FCC's decision-making process by leaving the extent to which 
interbureau collaboration occurs subject to the preferences of the 
chairman. 

Weaknesses in FCC's Processes for Collecting and Using Information Can 
Undermine the Transparency and Effectiveness of the Decision-Making 
Process: 

Inconsistent Policies Regarding Commissioner Access to Bureau and 
Office Analyses Raise Concerns about the Transparency and Effectiveness 
of the Decision-Making Process: 

FCC chairmen have varied in their policies regarding commissioner 
access to bureau and office analyses during the decision-making 
process. For example, then-Acting Chairman Copps publicly stated that 
commissioners would have unfettered access to the bureaus, adding that 
bureaus should respond to requests from commissioners' offices directly 
and as quickly as possible, without preapproval from the chairman's 
office.[Footnote 42] In addition, former Chairman Kennard established 
internal procedures outlining how commissioners should receive 
information from bureaus and offices during the decision-making 
process.[Footnote 43] These procedures specified that bureau and office 
chiefs would provide detailed oral briefings or memoranda on upcoming 
items upon the request of commissioners and would solicit feedback from 
commissioners while developing draft items. Under Chairman Martin, 
there was a perception among some FCC commissioners and staff that the 
commissioners could not easily access bureau and office analyses. 
Stakeholders also told us that some previous chairmen had similarly 
limited commissioner access to bureau and office analyses. One 
rationale behind such policies was that giving the commissioners 
unrestricted access to agency staff could hinder the decision-making 
process by allowing commissioners to search for support among the 
bureau staff for any given position. Similarly, some stakeholders 
expressed concerns about providing commissioners full access to bureau 
staff. For example, one FCC official recounted prior instances in which 
commissioners requested information that placed bureau staff in the 
middle of commission-level policy disputes, and a former FCC official 
expressed concerns about commissioners making requests that could tie 
up bureau resources. 

No explicit statutory or regulatory language exists that outlines 
commissioners' access to internal information. The Communications Act, 
as amended, states that it is the duty of the chairman to coordinate 
and organize the work of the commission in such a manner as to promote 
prompt and efficient disposition of all matters within the jurisdiction 
of the commission.[Footnote 44] In implementing this, FCC's chairman 
sets the agency's agenda by directing the work of the bureaus and 
offices to include drafting agenda items for commission consideration. 
While FCC's Agenda Handbook does specify that the bureaus and offices 
should provide commissioners copies of draft items for consideration 
and editing 3 weeks before the commission votes on the item at a public 
meeting, it does not specify the extent to which commissioners have 
access to the bureau and office staff and their analyses, including 
their ability to ask the staff questions about draft items or the 
analyses supporting those items. The absence of internal policies or 
statutory requirements has enabled each chairman to define how and when 
other commissioners receive bureau and office analyses during the 
decision-making process. 

Controlling commissioner access to staff analysis and opinions may 
subvert the commission decision-making process and raises concerns 
among FCC officials and external stakeholders regarding the 
transparency and informed nature of the decision-making process. Many 
stakeholders we interviewed, including former FCC officials and current 
FCC commissioners and bureau officials, noted the importance of bureau 
analyses to the commission's decision-making process, with some stating 
that commissioners' lack of access to bureau analyses can negatively 
impact the quality of FCC's decisions. Two bureau officials explained 
that providing commissioners access to information improves FCC's 
decisions by allowing for more informed deliberations. FCC officials 
also told us that in situations where commissioners are unable to 
access information from the bureaus and offices, commissioners may 
refuse to vote on an item, thereby delaying decision making. The 
ability of the chairman to exert control over the bureau and office 
analyses provided to commissioners has raised concerns as to whether 
the information provided reflects the bureaus' and offices' independent 
analyses or the chairman's position on an issue. In addition, a current 
and a former commissioner stated that the chairman's ability to 
influence what information FCC staff provided to commissioners 
increased the commissioners' reliance on outside sources of 
information. The former commissioner noted that this raises concerns 
about the quality of information the commissioners may rely on and the 
transparency of the decision-making process, since private groups may 
be providing data that supports a particular agenda. 

Regulatory bodies headed by multimember commissions, such as FCC, are 
often advocated and preferred over a department or agency headed by a 
single administrator because group decision making under conditions of 
relative independence is preferable to dominance by a single 
individual. For example, a major review of independent regulatory 
agencies concluded that a distinctive attribute of commission action is 
that it requires concurrence by a majority of members of equal standing 
after full discussion and deliberation, and that collective decision 
making is advantageous where the problems are complex, the relative 
weight of various factors affecting policy is not clear, and the 
choices are numerous.[Footnote 45] Another study promoted the use of 
the commission structure for FCC in particular, stressing that the 
commission prevents a single administrator from having undue influence 
over the sources of public information.[Footnote 46] We have also 
recognized the need to provide decision makers with the information 
needed to carry out their responsibilities. Our internal control 
standards state that information should be recorded and communicated to 
management and others within the entity who need it and in a form and 
within a time frame that enables them to carry out their 
responsibilities.[Footnote 47] 

We also reviewed the policies of other independent regulatory agencies 
with regard to commissioner access to staff analyses. Officials at the 
Federal Energy Regulatory Commission and the Federal Trade Commission 
(FTC) told us that they do not have formal policies ensuring 
commissioner access to information, but stated that commissioners have 
not experienced problems obtaining information in the past. For 
example, an FTC official told us that the commission has had a long-
standing practice that the commissioners have access to all of the 
information needed to perform their duties. However, the Nuclear 
Regulatory Commission (NRC) is statutorily required to ensure that 
commissioners have full access to the information needed to perform 
their duties and that commissioners share "equal responsibility and 
authority in all decisions and actions of the commission."[Footnote 48] 
In implementing this policy, NRC has developed and made publicly 
available its decision-making procedures, including commissioners' 
rights to information.[Footnote 49] These procedures outline the 
responsibilities of the chairman and the commissioners, how 
commissioners receive items from commission staff, and how items are 
voted on. Some of the key ways in which NRC's procedures provide 
commissioners access to information include: 

* Requiring that draft and final analyses by NRC staff are 
simultaneously provided to all commissioners, including the chairman. 

* Establishing that each commissioner, including the chairman, has 
equal responsibility and authority in all commission decisions and 
actions, and has full and equal access to all agency information 
pertaining to commission responsibilities. 

* Balancing commissioner access to staff analyses with the ability of 
the chairman to direct resource expenditures. For example, although 
individual commissioners can request information or analyses from NRC 
staff, if the request requires significant resources to fulfill and 
questions of priority arise, the office or the commissioner can request 
the chairman resolve the matter. If the chairman's decision is not 
satisfactory to the requesting commissioner or the office, either can 
bring the matter for a vote before the full commission. 

NRC officials told us that these long-standing internal procedures, 
which are reviewed approximately every 2 years, have been helpful in 
avoiding protracted disputes over the prerogatives and responsibilities 
of the chairman and the other commissioners and ensuring that access 
issues are handled consistently. 

Stakeholders Have Raised Concerns about FCC's Collection of Information 
during the Rulemaking Process: 

FCC Typically Does Not Include the Text of a Proposed Rule in Its 
NPRMs, Which May Limit the Effectiveness of the Public Comment Process: 

When issuing an NPRM to gather public input before adopting, modifying, 
or deleting a rule, FCC rarely includes the text of the proposed rule 
in the notice, which may limit the effectiveness of the public comment 
process. A 2008 FCC draft order noted that during the period 1990 
through 2007, the commission issued approximately 3,408 NPRMs, 390 (or 
11.4 percent) of which contained the text of proposed rules under 
consideration. According to A Guide to Federal Agency Rulemaking, a 
resource guide created by the Administrative Law and Regulatory 
Practice and Government and Public Sector Lawyers Division of the 
American Bar Association,[Footnote 50] "most agencies publish the text 
of the proposed rule when commencing rulemaking, and some enabling 
statutes expressly require that the agency do so."[Footnote 51] 
Widespread concern exists regarding the lack of details provided in 
FCC's NPRMs, which generally ask for comment on wide-ranging issues, 
making the NPRM more like a Notice of Inquiry (NOI). FCC officials told 
us that FCC uses NPRMs rather than NOIs (the traditional method of 
gathering broad input on a topic) so that it can proceed directly to 
issuing a rule once one is developed. By contrast, if FCC used an NOI 
to gather information, then it would need to issue an NPRM before 
issuing a rule. Several stakeholders have stated that such broad NPRMs 
limit their ability to submit meaningful comments that address FCC's 
information needs and increase FCC's reliance on information provided 
in ex parte contacts. For example, the Small Business Administration's 
(SBA) Office of Advocacy noted its concerns about FCC's use of NPRMs 
instead of NOIs to collect broad information on a number of issues. 
[Footnote 52] It argues that by issuing an NPRM that lacks specific 
proposals, the FCC creates uncertainty in the industry, resulting in 
thousands of comments that can only speculate as to what action the FCC 
may take and the potential impacts. SBA's Office of Advocacy adds that 
small businesses, in particular, are often overwhelmed by the scope of 
a vague NPRM and cannot contribute meaningfully to the rulemaking 
process. In addition, part of the value of the public comment process 
is derived from external stakeholders' ability to respond to other 
groups' comments, thereby improving the public debate on an item. 
However, if parties are unsure of FCC's intentions due to a lack of 
specificity in the NPRM and they submit general comments or wait until 
the ex parte process to provide input on an item, public debate can be 
limited. 

The APA requires that an NPRM include "either the terms or substance of 
a proposed rule or a description of the subjects and issues 
involved."[Footnote 53] Since the public is generally entitled to 
submit their views and relevant data on any proposals, the notice must 
be sufficient to fairly apprise interested parties of the issues 
involved, but it need not specify every precise proposal which the 
agency may ultimately adopt as a rule.[Footnote 54] APA's requirements 
are satisfied when the rule is a "logical outgrowth" of the actions 
proposed, which means that interested parties "should have anticipated 
the agency's final course in light of the initial notice."[Footnote 55] 

Although APA does not specifically require that NPRMs contain proposed 
rule text, some studies of federal rulemaking have identified the 
benefits of providing proposed rule text for public comment. For 
example, A Guide to Federal Agency Rulemaking notes that "specific 
proposals help focus public comment, and that, in turn, assists 
reviewing courts in deciding whether interested persons were given a 
meaningful opportunity to participate in the rulemaking … a focused and 
well-explained NPRM can educate the public and generate more helpful 
information from interested persons."[Footnote 56] Similarly, in its 
analyses of transparent governing and public participation in the 
rulemaking process, ICF International[Footnote 57] recommended that 
agencies garner more substantive public comments by issuing an Advanced 
Notice of Proposed Rulemaking that lays out specific options under 
consideration and asks specific questions that are linked to a Web 
form.[Footnote 58] 

Several stakeholders, including officials at FCC, have recognized that 
the lack of details in NPRMs is an issue and have proposed changes. A 
2008 FCC draft order[Footnote 59] advocated that FCC publish the text 
of proposed rules in NPRMs to better inform the debate about matters 
under commission consideration and to increase FCC's accountability to 
the American public. A current and a former commissioner we interviewed 
also suggested that FCC publish the proposed rules for comment in its 
NPRMs, stressing the importance of the information provided in NPRMs in 
the decision-making process. For example, in a letter proposing various 
reforms to incoming Chairman Genachowski, Commissioner McDowell noted 
the need for NPRMs to include proposed rules, stating this would 
benefit Congress, the public, and the other commissioners. In addition, 
trade organizations sent letters to the Presidential Transition Task 
Team supporting the inclusion of proposed rule text in FCC's NPRMs. In 
April 2009, Representatives Joe Barton and Cliff Stearns introduced 
H.R. 2183, which proposed a number of FCC reforms, including provisions 
that require the agency to publish the specific language of any 
proposed adoption, modification, or deletion of regulations, and 
provide the public 30 days to submit comments and another 30 days to 
submit reply comments before the commission acts on the proposed 
adoption, modification, or deletion.[Footnote 60] 

In addition, some stakeholders have suggested that FCC should rely more 
heavily on its administrative law judges[Footnote 61] to develop a 
record on which to base decisions. These stakeholders stated that by 
allowing parties to cross-examine one another, and to testify and 
submit evidence under oath, administrative law judge proceedings would 
ensure the commission was basing its decisions on tested facts and 
data. However, officials from other commissions that use administrative 
law judges noted that while these proceedings are useful for addressing 
factual disputes, such as rate disputes or contesting charges of law 
violations, they are not useful in making policy decisions because they 
are too legalistic and time-consuming. An official in FCC's Office of 
General Counsel expressed concern about the usefulness of 
administrative law judges in a rulemaking proceeding, noting that 
stakeholders generally submit policy arguments, rather than arguments 
about factual issues. In addition, while the rulemaking process allows 
for a large number of parties to submit comments, an administrative law 
judge proceeding could not accommodate the same volume of participants 
and would require that FCC decide which parties should participate in 
cross-examining witnesses and evidence. In addition, an official in 
FCC's Office of General Counsel and other stakeholders raised concerns 
that the process could lengthen the decision-making process and would 
require that FCC increase its administrative law judge staff. 

Weaknesses in FCC's ex parte Process Have Negatively Impacted 
Stakeholder Perceptions of Transparency and Public Participation in 
FCC's Decision-Making Process: 

FCC's current ex parte process can lead to vague or last-minute ex 
parte summaries of meetings between FCC and external officials. The APA 
places no restriction on ex parte communication between agency decision 
makers and other persons during informal rulemaking. However, FCC has 
rules about such contacts that are intended to protect the fairness of 
its proceedings by providing an assurance that FCC decisions are not 
influenced by off-the-record communications between decision makers and 
others. Stakeholders must provide FCC with two copies of written ex 
parte presentations and the original and a copy of a summary of the new 
information provided during oral ex parte contacts to be filed in the 
public record. FCC places the burden of preparing and ensuring that an 
ex parte summary is complete on the external party.[Footnote 62] FCC's 
ex parte rules provide general guidance on what is sufficient, stating 
that the summaries should generally be "more than a one or two sentence 
description" and not just a listing of the subjects discussed.[Footnote 
63] When it is unclear whether data or arguments presented in an ex 
parte contact are already in the public record, FCC advises that 
parties briefly summarize the matters discussed at the meeting. FCC 
officials told us that they are in the process of reviewing and 
potentially changing the ex parte process. 

However, stakeholders expressed concerns about the submission of vague 
ex parte summaries under the current process. For example, an ex parte 
summary may simply state that an outside party met with FCC officials 
to share its thoughts on a proceeding. Stakeholders told us that vague 
ex parte summaries reduce transparency and public discourse in FCC's 
decision-making process by limiting stakeholders' ability to determine 
what information was provided in the meeting and to discuss or rebut 
that information. In 2002, an FCC commissioner stated that she believed 
that the "cursory [ex parte] filings that [FCC] routinely permits" are 
an apparent violation of its rules requiring more than a one or two 
sentence description.[Footnote 64] Similarly, a former acting chairman 
noted the need to "enhance, or at least enforce," FCC's ex parte rules 
so that the public will find more than a brief ex parte letter that 
only identifies who attended a meeting, rather than what was said in 
the meeting.[Footnote 65] 

According to FCC, the ex parte process is an important avenue for FCC 
in collecting and examining information during the decision-making 
process. FCC has previously told us that it generally does not produce 
its own studies to develop a rule. Rather, FCC relies on stakeholders 
to submit information and analysis that is then placed in the docket so 
that FCC and other stakeholders can critique the information. According 
to FCC officials, this results in both transparency and quality 
information because each stakeholder has had an opportunity to review 
and comment on all of the information in the docket. In addition, 
according to an official in FCC's Office of General Counsel, ex parte 
meetings allow stakeholders and FCC to focus on specific issues of 
interest to FCC and to identify potential weaknesses in the existing 
arguments. An official in FCC's Office of General Counsel recognizes 
concerns that some ex parte summaries are cursory and vague and noted 
that to address this, FCC periodically sends reminders to commenters 
regarding the information required in ex parte summaries and has placed 
additional information about the required information on FCC's Web 
site. In 2000, FCC issued a public notice reiterating the public's 
responsibilities in the ex parte process. This notice stated "the duty 
to ensure the adequacy of ex parte notices …rests with the person 
making the presentation. Staff members have the discretion to request 
supplemental filings if they feel that the original filing is 
inadequate, but the obligation to file a sufficient notice must be 
satisfied regardless of possible requests by the staff."[Footnote 66] 

FCC does not proactively determine whether the content of the summaries 
is sufficient. Specifically, FCC relies on a complaint-driven process 
to ensure that ex parte submissions comply with FCC's rules. FCC's 
Office of General Counsel reviews ex parte communications if it 
receives a complaint.[Footnote 67] However, since the parties not 
present at the meeting are generally unsure as to what occurred, it is 
difficult for external stakeholders to determine whether an ex parte 
submission is sufficiently detailed. In addition, it can be difficult 
to determine if an ex parte summary is sufficient, because if a party 
is simply restating information it has already presented, then it can 
file a short ex parte summary or none at all. After the Office of 
General Counsel receives a complaint, it provides copies to the party 
referred to in the complaint and to the FCC staff present during the 
meeting, and the parties provide a written response to the office about 
their version of events. The Office of General Counsel is responsible 
for determining whether the issue has been appropriately resolved. FCC 
receives, on average, one complaint a month about ex parte 
communications. 

Other aspects of the ex parte process can challenge stakeholders' 
ability to submit information during FCC's decision-making process. For 
example, one group noted that unlike public comments, which must be 
submitted by a specific deadline, the ex parte process does not have a 
definitive end date and groups must expend their resources tracking ex 
parte submissions until the relevant item is voted on by the 
commission. In addition, stakeholders must attempt to determine what 
information was provided based on summaries of the ex parte meeting and 
submit written responses or attempt to meet with FCC officials to offer 
a countervailing viewpoint. This can present a particular burden for 
stakeholders with limited resources for tracking and responding to ex 
parte contacts. For example, two organizations told us that it is more 
difficult for groups that must travel to Washington, D.C., to 
participate in person at ex parte meetings than for groups with a 
presence inside Washington. One organization told us of instances in 
which FCC canceled meetings with them at the last minute, after the 
group traveled from outside of Washington, D.C, to meet with FCC. 

Several stakeholders also raised concerns regarding prior incidents in 
which parties made substantive ex parte submissions just before or 
during the Sunshine period, during which external contact with FCC 
officials is restricted, and thus, other groups are unable to respond 
to the information provided. Although, subject to certain exceptions, 
external parties are forbidden from contacting FCC officials after 
release of the Sunshine Notice (generally 1 week prior to a vote), FCC 
officials are allowed to initiate contact with external parties for 
additional information on an agenda item. This can lead to ex parte 
submissions affecting decisions without allowing for public comment on 
the information provided. For example, during the AT&T BellSouth merger 
review, an ex parte communication occurred the day before the scheduled 
vote. During the communication, FCC proposed merger conditions and the 
ex parte summary was filed the day of the proposed vote, thus 
preventing public comment and expert review. However, in response to 
complaints from the other commissioners, Chairman Martin delayed the 
merger vote to allow for public comment on the new changes. An official 
in FCC's Office of General Counsel told us that there are legitimate 
concerns about stakeholders' ability to respond to ex parte 
presentations made during the Sunshine period, pursuant to a Sunshine 
period exception, but added that if this occurs, stakeholders can 
request to be invited by FCC officials to file a counter ex parte 
communication. Finally, although parties are required to file a summary 
of ex parte contacts with FCC's Secretary, all commissioners may not 
receive a copy of this summary. For example, if a paper copy is filed 
shortly before a scheduled vote, there may not be adequate time for the 
summary to be scanned and placed in the public record. FCC officials 
told us that there is currently no mechanism for notifying 
commissioners that ex parte summaries have been filed and added that 
commissioners rely on the public record to identify this information. 

Other federal agencies have implemented different guidelines for the ex 
parte process. For example, the Department of Transportation (DOT) 
issued an order and accompanying procedures, noting the importance of 
providing interested members of the public adequate knowledge of 
contacts between agency decision makers and the public during the 
rulemaking process. DOT establishes that if such contact occurs prior 
to the issuance of an NPRM and is one of the bases for the issuance of 
the NPRM, the contact should be discussed in the preamble of the 
notice. In addition, although DOT recommends holding such contact to a 
minimum after the close of the reply comment period, noting that 
contacts occurring at this stage of the process tend to be hidden, DOT 
states that if such contacts do occur, the meeting should be announced 
publicly or all persons who have expressed interest in the rulemaking 
should be invited to participate. In addition, DOT requires that 
records of such contacts be promptly filed in the public record and 
states that while a verbatim transcript is not required, a mere 
recitation that the listed participants met to discuss a named general 
subject on a specified day is inadequate. Rather, DOT notes that such 
records should include a list of the participants, a summary of the 
discussion, and a specific statement of any commitments made by 
department personnel. 

Officials from FTC told us that the agency personnel are responsible 
for submitting ex parte communications in writing to the FTC Secretary 
so that they can be placed on the public record.[Footnote 68] NRC 
officials told us that if comments submitted after the public comment 
period raise a significant new idea, NRC would place those comments in 
the record and might reopen the comment period to get reactions to the 
submission. NRC officials also noted that when NRC issues a request for 
public comments, comments received after the due date will be 
considered if it is practical to do so, and that NRC does reopen or 
extend a comment period to give people more time to consider complex 
issues. 

Stakeholders concerned about FCC's current ex parte process have 
suggested a number of changes. Some of the suggestions included 
enhancing FCC's guidelines regarding ex parte summaries to include 
requiring that FCC officials reject incomplete ex parte summaries or 
requiring them to certify that the ex parte summaries they receive 
accurately capture the substance of the information provided in 
meetings, improving FCC's enforcement of its ex parte requirements, and 
limiting FCC's use of last-minute ex parte contacts to inform its 
decisions. An FCC official noted that one possible solution to ex parte 
submissions made during the Sunshine period would be to create an 
automatic right to respond for other stakeholders, but added that 
allowing for more contact during the Sunshine period would run counter 
to the idea of establishing a quiet period for the commissioners to 
consider an issue before voting. FCC is currently in the process of 
considering possible revisions to its ex parte policies and is 
exploring new methods of collecting public comment. One method under 
consideration includes collecting comments through its Web site, 
[hyperlink, http://www.broadband.gov] which allows members of the 
public to comment on a blog, request ex parte meetings, and obtain 
information about upcoming workshops. On October 28, 2009, FCC held a 
workshop on improving disclosure of ex parte contacts, during which 
participants discussed possible revisions to FCC's current ex parte 
rules and processes. 

Some Academic and Industry Stakeholders Think FCC's Merger Review 
Process Allows the Agency to Implement Policy Decisions Outside of the 
Rulemaking Process: 

Some academic and industry stakeholders have voiced concerns that FCC's 
merger review process allows the agency to implement policy decisions 
without going through the rulemaking process. Companies holding 
licenses issued by FCC and wishing to merge must obtain approval from 
two federal agencies: the Department of Justice (DOJ)[Footnote 69] and 
FCC, which do not follow the same standards when reviewing mergers. 
While DOJ is charged with evaluating mergers through an antitrust lens, 
FCC examines proposed mergers under its Communications Act authority to 
grant license transfers. The act permits the commission to grant the 
transfer only if the agency determines that the transaction would be in 
the "public interest, convenience, and necessity."[Footnote 70] A 
recent Congressional Research Service report noted that the public 
interest standard is generally considered broader than the competition 
analysis authorized by the antitrust laws and conducted by DOJ. 
[Footnote 71] The report concludes that the commission possesses 
greater latitude to examine other potential effects of a proposed 
merger beyond its possible effect on competition in the relevant 
market. In addition, FCC negotiates and enforces voluntary conditions 
on license transfers under the authority provided by §303(r) of the 
Communications Act,[Footnote 72] which grants the commission the 
authority to "prescribe such restrictions and conditions, not 
inconsistent with the law, as may be necessary to carry out the 
provisions" of the act, and §214(c),[Footnote 73] which grants the 
commission the power to place "such terms and conditions as in its 
judgment the public convenience and necessity may require." 

Several stakeholders told us that FCC has used its merger review 
authority to get agreements from merging parties on issues that affect 
the entire industry and should be handled via rulemaking, rather than 
fashioning merger-specific remedies. Stakeholders argue that this may 
lead to one set of rules for the merged parties and another set of 
rules for the rest of the industry. For example, rather than using an 
industry-wide rulemaking to address the issue of whether local 
telephone companies should be required to provide Digital Subscriber 
Line (DSL) service[Footnote 74] without requiring telephone service, 
FCC imposed this requirement solely on AT&T and Verizon during merger 
reviews.[Footnote 75] One stakeholder stated that by addressing broad 
policy issues through merger reviews rather than rulemakings, FCC is 
limiting public insight and participation in the regulatory process. 
Other stakeholders argue that FCC's merger review process provides a 
needed public interest perspective. 

In addition to concerns about FCC's merger review process, there are 
also concerns about how FCC enforces its merger conditions. For 
example, one observer noted that despite requests from consumer groups 
such as Media Access Project and Public Knowledge, FCC declined to 
adopt specific enforcement mechanisms to ensure compliance with a 
series of conditions imposed during the merger review of XM and Sirius, 
including an "a la carte"[Footnote 76] mandate and a requirement to 
provide noncommercial channels.[Footnote 77] FCC officials told us that 
each bureau is responsible for ensuring merger conditions are adhered 
to. 

FCC Faces a Number of Workforce Challenges but Does Not Track the 
Progress of Its Efforts to Address Those Challenges: 

Declines in the Number of FCC Engineering and Economic Staff and Large 
Numbers of Retirement-Eligible Staff May Impact FCC's Ability to Meet 
Its Mission: 

As part of the general decrease in FCC staff that occurred from fiscal 
year 2003 to 2008, the number of engineers and economists at FCC 
declined. (See figure 3.) From fiscal year 2003 to 2008, the number of 
engineers at FCC decreased by 10 percent, from 310 to 280. Similarly, 
from fiscal year 2003 to 2008, the overall number of economists 
decreased by 14 percent, from 63 to 54. Although the number of 
engineers and economists has decreased from 2003 to 2008, the 
percentage of the workforce comprised of engineers and economists 
remained the same. 

Figure 3: Changes in the Number of Economists, Engineers, and Other 
Staff Employed at FCC: 

[Refer to PDF for image: stacked vertical bar graph] 

Fiscal year: 2003; 
Economists: 63; 
Engineers: 310; 
Other Staff: 1,646; 
Total: 2,019. 

Fiscal year: 2004; 
Economists: 62; 
Engineers: 300; 
Other Staff: 1.574; 
Total: 1,936. 

Fiscal year: 2005; 
Economists: 56; 
Engineers: 285; 
Other Staff: 1,517; 
Total: 1,858. 

Fiscal year: 2006; 
Economists: 57; 
Engineers: 268; 
Other Staff: 1,496; 
Total: 1,821. 

Fiscal year: 2007; 
Economists: 56; 
Engineers: 273; 
Other Staff: 1,465; 
Total: 1,758. 

Fiscal year: 2008; 
Economists: 54; 
Engineers: 280; 
Other Staff: 1,466; 
Total: 1,800. 

Source: GAO analysis of FCC data. 

[End of figure] 

The overall decline in the number of key occupational staff occurred 
during a period of increased need for technical, economic, and business 
expertise. New technologies, such as rapid growth in handheld and 
wireless devices, are challenging existing regulatory structures. FCC 
also cited a number of economic issues that impact the expertise and 
workforce required, such as marketplace consolidation and the need to 
craft economic incentives for incumbent spectrum users to relocate to 
other spectrum. 

Additionally, 24 percent of FCC staff responses to the 2008 Office of 
Personnel Management (OPM) Federal Human Capital Survey disagreed with 
the statement "the skill level in my work unit has improved in the last 
year." This was significantly more than the 17 percent of staff from 
all other agencies responding to the survey who disagreed with the 
statement. Similarly, several stakeholders we interviewed echoed the 
importance of increasing the level of expertise in certain areas at FCC 
and cited concerns regarding insufficient numbers of staff. 

In addition to the decrease in engineers and economists, FCC faces 
challenges in ensuring that its workforce remains experienced and 
skilled enough to meet its mission, including a large number of staff 
who will be eligible for retirement.[Footnote 78] FCC estimates that 45 
percent of supervisory engineers are projected to be eligible for 
retirement by 2011. While FCC has started hiring a larger number of 
engineers to replace retiring engineers and augment its engineering 
staff, most hires have been at the entry level. Of the 53 engineers 
hired in fiscal years 2007 and 2008, 43 were entry-level hires. During 
this same period, 30 engineers retired. Stakeholders stated that recent 
graduates sometimes have little experience or understanding of how 
policies affect industry. Increasing the number of staff with 
backgrounds and experience in industry would help improve FCC's 
understanding of industry issues and can lead to better policies, 
according to stakeholders. For economists, FCC faces an even higher 
share of staff eligible for retirement by 2011. FCC reports that, as of 
April 2009, 67 percent of supervisory economists will be eligible to 
retire,[Footnote 79] as shown in table 1. FCC may face challenges in 
addressing these impending retirements because 56 percent of 
nonsupervisory economists are also eligible to retire, and FCC has not 
hired any economists in fiscal years 2007 and 2008. 

Table 1: Projected 2011 Retirement Eligibility for FCC Engineers and 
Economists: 

Supervisory engineers: 
Estimate as of 2011: 45%. 

Nonsupervisory engineers: 
Estimate as of 2011: 23. 

Supervisory economists: 
Estimate as of 2011: 67. 

Nonsupervisory economists: 
Estimate as of 2011: 56. 

Source: FCC data. 

[End of table] 

Despite these trends, it is not clear how significantly the agency has 
been impacted in its ability to meet its mission. For example, the 2008 
OPM Federal Human Capital Survey showed that, similar to the rest of 
government, 75 percent of FCC staff agreed with the statement that the 
workforce has the knowledge and skills necessary to accomplish 
organization goals. Agency officials also noted that they can shift 
staff from one bureau to another as needs arise and the regulatory 
environment changes. For example, as the need for tariff regulation 
decreased, FCC shifted staff from that area into other areas. However, 
an FCC official indicated that with the decrease in the number of 
experienced engineers throughout the agency, more work has shifted to 
OET. The official added that if the bureaus had additional resources to 
recruit and retain more experienced engineers, then they could handle 
more complex issues within the bureau without relying on OET as much. 
Furthermore, additional engineering staff would allow the bureau to 
reduce the amount of time it takes to conduct analyses and draft items. 
Additionally, former FCC officials told us that OSP needs additional 
resources to fulfill its mission. 

Recruiting Has Been an Issue at FCC, and Staff Morale and Motivation 
Issues Could Exacerbate This Challenge: 

FCC faces multiple challenges in recruiting new staff. One challenge 
FCC faces (similar to other federal agencies) is the inability to offer 
more competitive pay. Additionally, not having an approved budget and 
working under congressional continuing resolutions has hampered hiring 
efforts for engineers and economists. Competing priorities may also 
delay internal decisions regarding hiring. For example, OSP has not 
received the budgetary allocation for hiring new economists in time for 
the annual American Economic Association meeting for at least the past 
4 years. This meeting is the primary recruiting venue for recently- 
graduated economists. When FCC is not able to hire economists at the 
annual meeting, the agency potentially loses out on skilled employees 
who have been offered employment elsewhere. FCC officials told us that 
OSP has received permission to attend the 2010 American Economic 
Association meeting and hire at least one economist. 

FCC also faces issues regarding the morale and motivation of its staff. 
According to the 2008 OPM Federal Human Capital Survey, FCC staff 
responses were significantly lower than other federal agencies' staff 
in areas related to motivation, engagement, and views of senior 
leadership. (See table 2.) 

Table 2: Comparison of FCC Responses and Responses from the Rest of the 
Government on Selected Items from the 2008 OPM Federal Human Capital 
Survey: 

Questions: Leaders generate high levels of motivation and commitment in 
the workforce; 
Percent of FCC respondents agreeing with statement: 31; 
Percent of all other government respondents agreeing with statement: 
40; 
Difference between FCC and all other government responses: -9. 

Questions: Satisfied with the policies and practices of the 
organization's senior leaders; 
Percent of FCC respondents agreeing with statement: 32; 
Percent of all other government respondents agreeing with statement: 
42; 
Difference between FCC and all other government responses: -10. 

Questions: Employees have a feeling of personal empowerment with 
respect to work processes; 
Percent of FCC respondents agreeing with statement: 33; 
Percent of all other government respondents agreeing with statement: 
44; 
Difference between FCC and all other government responses: -11. 

Questions: Arbitrary action, favoritism, and coercion for partisan 
purposes are not tolerated; 
Percent of FCC respondents agreeing with statement: 35; 
Percent of all other government respondents agreeing with statement: 
48; 
Difference between FCC and all other government responses: -13. 

Source: GAO analysis of OPM Federal Human Capital Survey, 2008. 

[End of table] 

Low levels of motivation, commitment, and personal empowerment may 
exacerbate the challenges FCC faces in recruiting and maintaining an 
experienced staff. For example, stakeholders told us that part of 
attracting and retaining professional staff is using and valuing their 
expertise. If expertise is not used or valued, as has occurred in some 
instances at FCC, then this can have a negative impact on FCC's ability 
to recruit top candidates in a given professional field. FCC officials 
told us that in response to the results from the OPM Federal Human 
Capital Survey, FCC identified leadership and communication skills as 
areas of focus. To address these needs, FCC has developed an internal 
Web site that provides a forum for communication and solicitation of 
information, concerns, and suggestions from staff within FCC. In 
support of leadership, FCC is working to implement an executive 
leadership program for existing leaders and an emerging leadership 
training program to identify potential leaders within FCC and enhance 
their skills. 

FCC Has Implemented Initiatives to Recruit and Develop Staff and Takes 
Actions to Determine Expertise Needs, but It Does Not Track Overall 
Progress Toward Meeting These Needs: 

FCC has instituted hiring and staff development programs designed to 
recruit new staff and develop the skills of its existing staff. While 
these programs are positive steps that can help attract, retain, and 
train new staff, it is not clear that these efforts are sufficient to 
address expertise gaps caused by retirements. Specific efforts include 
the following: 

* FCC University was established to provide the resources needed to 
increase the fluency of commission staff in a number of competency 
areas. Subject matter experts have been continuously and actively 
involved in defining the training needs and evaluating, designing, and 
delivering internal courses, and in updating the courses available in 
the FCC University catalog. 

- Excellence in Engineering Program: A program that includes both basic 
and advanced courses in communications technology, a graduate degree 
program in engineering, and a knowledge-sharing program to increase the 
exchange of information among staff. The Excellence in Engineering 
award recognizes engineers, scientists, and other technical staff for 
outstanding contributions performed in the course of their work at the 
commission. 

- Excellence in Economic Analysis Program: A program to ensure staff is 
fluent in the principles of communication economics. The program 
consists of ongoing training and development opportunities targeted at, 
but not limited to, staff economists, economics training for 
noneconomists, and research tools such as data analysis software. 
Another component of the program is the Excellence in Economic Analysis 
Award, which recognizes outstanding contributions to economic analysis 
at FCC based on the impact of the contribution on FCC policy or its 
significance for the general base of knowledge in economics or public 
policy analysis. 

- Engineer in Training Program: A combined recruitment and accelerated 
promotion program designed to attract recent engineering graduates and 
provide them with accelerated promotion opportunities through 
successful completion of on-the-job training. 

FCC has also pursued a variety of strategies to address new expertise 
needs and human capital challenges. In certain cases, FCC has been able 
to use direct-hire authority, which streamlines and expedites the 
typical competitive placement process. FCC was granted direct-hire 
authority from OPM in response to congressionally-mandated requirements 
for a national broadband plan. In addition to using direct-hire 
authority, FCC used appointing authorities, which are outside of the 
competitive hiring processes, such as Recovery Act appointing 
authority, temporary consultants, and student appointments, as well as 
details for staff from other federal agencies to more quickly ramp up 
its broadband efforts. 

FCC also makes multiple efforts to determine the critical skills and 
competencies that are needed to achieve its mission, including meetings 
with bureau chiefs, as well as surveys of supervisors and staff. It has 
set forth occupation-specific competencies for its three key 
professional areas--engineers, attorneys, and economists. As part of 
FCC's workforce planning efforts, bureau and office chiefs identify, 
justify, and make their requests for positions, including the type of 
expertise needed, directly to the chairman's office. According to FCC, 
the chairman's office considers these requests from a commissionwide 
perspective, which includes the agency's strategic goals, the 
chairman's priorities, and other factors such as congressional 
mandates. The chairman's office communicates the approval of requests 
directly to the bureau or office chiefs and informs the Office of 
Managing Director of the decision. Human resources works with bureaus 
and offices to implement approved hiring. 

This process can make it difficult for FCC to develop and implement a 
long-term workforce plan because workforce needs are driven by short- 
term priorities and are identified by compartmentalized bureaus rather 
than by a cohesive long-range plan that considers emerging issues. In 
addition, an FCC official noted that since FCC is a small agency and 
expertise needs change quickly, a particular area could be fully 
staffed with no need for additional hiring, but if two staff leave in a 
short time period, then an expertise gap could quickly develop and new 
staff would need to be hired. FCC officials told us that, because of 
this, they avoid laying out specific targets that might be impossible 
or undesirable to achieve due to evolving needs. Additionally, FCC 
officials told us that due to its size and limited hiring 
opportunities, it is important for the chairman and senior leadership 
to be able to adjust the goals identified in its Strategic Human 
Capital Plan. 

Without specific targets, FCC cannot monitor and evaluate the agency's 
progress toward meeting its expertise needs. Previously, we identified 
several key principles that strategic workforce planning should 
address,[Footnote 80] including: 

* determining the critical skills and competencies that will be needed 
to achieve current and future programmatic results; 

* developing strategies that are tailored to address gaps in the 
number, deployment, and alignment of human capital approaches for 
enabling and sustaining the contributions of all critical skills and 
competencies; and: 

* monitoring and evaluating an agency's progress toward meeting its 
human capital goals. 

Periodic measurement of an agency's progress toward human capital goals 
provides information for effective oversight by identifying performance 
shortfalls and appropriate corrective actions. For example, a workforce 
plan can include measures that indicate whether the agency executed its 
hiring, training, or retention strategies as intended and achieved the 
goals for these strategies, and how these initiatives changed the 
workforce's skills and competencies. 

FCC has made efforts to determine the skills and competencies that are 
needed to achieve programmatic goals and has developed workforce hiring 
and training strategies. In addition, FCC's current Strategic Human 
Capital Plan identifies skills and subspecialties needed in the future 
workforce. However, FCC's Strategic Human Capital Plan does not 
establish specific targets for these needs or measures for evaluating 
its progress in meeting these skill needs. FCC officials told us they 
expect to develop a revised Strategic Human Capital Plan in support of 
a new FCC Strategic Plan, which they anticipate completing by the end 
of fiscal year 2010. Additionally, FCC is also in the process of 
finalizing an OPM-required accountability plan to accompany its 
Strategic Human Capital Plan. It remains unclear whether FCC's actions 
are sufficient to ensure that it retains a skilled workforce that can 
achieve its mission in the future. 

Conclusions: 

FCC regulates the telecommunications industry--an industry that is 
critical to the nation's economy and public safety and that directly 
affects the ways in which Americans conduct business, socialize, and 
get their news and entertainment. In recent years, the industry has 
rapidly evolved, and changing technologies have created new issues that 
span FCC bureaus and require the expertise of a variety of FCC staff. 
These changes highlight the need for FCC to ensure that its decisions 
are fully informed by promoting internal communication and coordination 
among various bureaus and offices, ensuring commissioner access to 
staff analyses, effectively collecting public input on its proposed 
policy changes, and developing methods to ensure it has the staff 
expertise needed to address these issues. However, we identified 
several challenges in these areas. 

At the bureau and office level, FCC's lack of written procedures for 
facilitating the flow of information within the agency has in some 
cases led to ineffective interbureau coordination and allowed prior 
chairmen to limit internal communication among staff. 

In addition, it is unclear whether the roles of OET and OSP--two 
offices established to provide independent expertise on complex, 
crosscutting issues--are clearly defined or are overly subject to a 
chairman's preferences. Without written interbureau coordination 
procedures or clearly defined roles and responsibilities, FCC may be 
limited in its ability to address crosscutting issues. 

At the commission level, the lack of statutory requirements or internal 
policies on commissioners' rights and responsibilities during the 
decision-making process, including their right to bureau and office 
analysis, has allowed some chairmen to control how and when 
commissioners receive information from the bureaus and offices. Other 
independent regulatory agencies have varied in how they address this 
issue. Ultimately, if commissioners do not have adequate access to 
information, then the benefits of the commission structure--robust 
group discourse and informed deliberation and decision making--may be 
hampered. 

In addition, while FCC relies heavily on public input to inform its 
decisions, we found two primary weaknesses in its processes for 
collecting that input. First, FCC's use of NPRMs to pose broad 
questions without providing actual rule text can limit stakeholders' 
ability to determine either what action FCC is considering or what 
information would be most helpful to FCC when developing a final rule. 
Second, although FCC has developed rules intended to protect the 
fairness of ex parte proceedings, FCC neither provides detailed 
guidance on what constitutes a sufficient ex parte summary, nor has a 
process for proactively ensuring that ex parte summaries are complete. 
If parties are able to submit vague ex parte summaries that may not 
fully reflect meetings between FCC officials and outside parties, then 
stakeholders will continue to question whether commission decisions are 
being influenced by information that was not subject to public comment 
or rebuttal and that, in some cases, is submitted just before a 
commission vote. FCC is currently exploring new methods of collecting 
public comment and potential revisions to its ex parte process. 

Finally, at a time when the telecommunications industry has become 
increasingly complex, a large percentage of FCC's economists and 
engineers will be eligible for retirement by 2011, and FCC has faced 
challenges in recruiting new staff. FCC has taken several positive 
steps to help meet its workforce needs, including instituting hiring 
and staff development programs and beginning efforts to identify its 
current workforce expertise needs. However, continued focus on 
identifying and instituting additional methods that improve its 
flexibility to meet its expertise needs, and developing measures for 
tracking its progress toward meeting its needs, will help to ensure 
that FCC is well-positioned to anticipate and address its current and 
future workforce and expertise needs. 

Recommendations for Executive Action: 

We have identified four areas of concern and are making seven 
recommendations to address these concerns. 

To ensure interbureau coordination on crosscutting issues, we recommend 
that the Federal Communications Commission (FCC) take the following two 
actions: 

* Develop written policies outlining how and when FCC will: 

- identify issues under the jurisdiction of more than one bureau; 

- determine which bureau will serve as the lead on crosscutting issues 
and outline the responsibilities entailed regarding coordinating with 
other bureaus; and: 

- ensure that staff from separate bureaus and offices can communicate 
on issues spanning more than one bureau. 

* Review whether it needs to redefine the roles and responsibilities of 
the Office of Engineering and Technology (OET) and the Office of 
Strategic Planning and Policy Analysis (OSP) and make any needed 
revisions. 

To clarify FCC's policies on providing commissioners access to 
information from bureaus and offices about agenda items, we recommend 
FCC take the following two actions: 

* Each chairman, at the beginning of his or her term, develop and make 
publicly available internal policies that outline the extent to which 
commissioners can access information from the bureaus and offices 
during the decision-making process, including how commissioners can 
request and receive information. 

* Provide this policy to FCC's congressional oversight committees to 
aid their oversight efforts. 

To improve the transparency and effectiveness of the decision-making 
process, we recommend that FCC take the following two actions: 

* Where appropriate, include the actual text of proposed rules or rule 
changes in either a Notice of Proposed Rulemaking or a Further Notice 
of Proposed Rulemaking before the commission votes on new or modified 
rules. 

* Revise its ex parte policies to include: 

- modifying its current guidance to further clarify FCC's criteria for 
determining what is a sufficient ex parte summary and address perceived 
discrepancies at the commission on this issue; 

- clarifying FCC officials' roles in ensuring the accuracy of ex parte 
summaries and establish a proactive review process of these summaries; 
and: 

- creating a mechanism to ensure all commissioners are promptly 
notified of substantive filings made on items that are on the Sunshine 
Agenda. 

To improve FCC's workforce planning efforts, we recommend that FCC take 
the following action: 

* In revising its current Strategic Human Capital Plan, include targets 
that identify the type of workforce expertise needed, strategies for 
meeting these targets--including methods to more flexibly augment the 
workforce--and measures for tracking progress toward these targets. 

Agency Comments: 

FCC provided written comments, which are reproduced in appendix III. In 
its comments FCC generally concurred with our recommendations and noted 
that they have already begun taking steps to address the areas of 
concern identified in our recommendations. For example, FCC stated that 
it is in the midst of a review of FCC's existing processes. As part of 
this process, FCC is reviewing prior procedures for interbureau 
communication, as well as prior and current practices for commissioner 
and staff communication. FCC stated that it would identify and 
incorporate lessons learned and best practices into future internal 
procedures. FCC did not specifically state whether future policies on 
commissioner access to bureau and office information during the 
decision-making process would be made publicly available or provided to 
FCC's congressional oversight committees. We believe these would be 
important steps in improving the transparency of FCC's decision-making 
process. FCC also did not specifically discuss our recommendation that 
it review whether it needs to redefine the roles and responsibilities 
of OET and OSP and make any needed revisions. Regarding the public 
comment process, FCC stated that it has worked to include the text of 
proposed rules in recently issued NPRMs. However, FCC did not state 
whether this would be an ongoing policy. FCC also noted that the Office 
of General Counsel is in the midst of reviewing proposals for modifying 
the current ex parte process, and stated that this may lead to a 
rulemaking to address this issue. Finally, FCC believes that it does 
not face significant challenges in recruiting top candidates and stated 
that its unique mission and the influence of its regulatory activities 
on the communications industry and practices help it attract qualified 
candidates. However, it concurred that revisions to the current 
Strategic Human Capital Plan should include targets and measures for 
tracking progress toward these targets. We recognize FCC's efforts to 
enhance internal and external communication, to update its comment 
filing system, and to continue to review other existing processes and 
workforce planning efforts. However, addressing our specific 
recommendations will further enhance FCC's efforts to date by promoting 
internal communication and coordination, clarifying policies on 
commissioner access to staff analyses, enhancing FCC's methods for 
collecting public input, and developing methods to ensure it has the 
staff expertise it needs. In addition, we provided the Federal Energy 
Regulatory Commission, Federal Trade Commission, and Nuclear Regulatory 
Commission with a draft of this report for review and comment. They did 
not offer any comments on our findings or recommendations, but provided 
technical corrections which we incorporated. 

As agreed with your offices, unless you publicly announce the contents 
of this report earlier, we plan no further distribution of it until 30 
days from the date of this report. At that time, we will send copies to 
the Chairman of the Federal Communications Commission and other 
interested parties. In addition, the report will be available at no 
charge on the GAO Web site at [hyperlink, http://www.gao.gov]. 

If you have any questions about this report, please contact me at (202) 
512-2834 or goldsteinm@gao.gov. Contact points for our Offices of 
Congressional Relations and Public Affairs may be found on the last 
page of this report. GAO staff who made major contributions to this 
report are listed in appendix IV. 

Signed by: 

Mark L. Goldstein: 
Director, Physical Infrastructure Issues: 

[End of section] 

Appendix I: Objectives, Scope, and Methodology: 

The report examines Federal Communications Commission's (FCC) 
organization, decision-making process, and personnel management. In 
particular, the report provides information on (1) the extent to which 
FCC's bureau structure presents challenges for the agency in adapting 
to an evolving marketplace; (2) the extent to which FCC's decision- 
making processes present challenges for FCC, and what opportunities, if 
any, exist for improvement; and (3) the extent to which FCC's personnel 
management and workforce planning efforts ensure that FCC has the 
workforce needed to achieve its mission. 

To respond to the overall objectives of this report, we interviewed 
current and former officials from FCC, including former chief 
economists and chiefs of staff, bureau and office chiefs and acting 
bureau and office chiefs, commissioners, and chairmen. In addition, we 
reviewed FCC documents, as well as relevant legislation, federal 
regulations, and GAO reports on the FCC and areas of focus for this 
review such as internal controls and workforce planning. We also 
interviewed industry associations representing broadcast and cable 
television, public television, consumer electronics, wireless, and 
telecommunications companies, public interest groups, and other 
individuals, such as academics with extensive telecommunications 
experience. Table 3 lists the organizations with whom we spoke. 

To describe the challenges FCC's bureau structure presents the agency 
in adapting to an evolving marketplace, we reviewed FCC's major 
internal reorganizations since the Telecommunications Act of 1996. We 
analyzed FCC procedures, applicable laws, and reviewed academic 
literature on organizational theory and various FCC reform proposals. 
We also reviewed academic literature on the commission structure, 
organizational theory, and various FCC reform proposals from a number 
of stakeholders. We used GAO's internal control and management tool to 
identify key mechanisms for facilitating the flow of information within 
an organization.[Footnote 81] 

To determine challenges the commission decision-making process presents 
for FCC and opportunities for improvement, we reviewed literature on 
federal rulemaking and potential reforms and on the commission 
structure and decision-making process. We reviewed FCC internal 
decision-making documents and the public comments of current and former 
FCC commissioners and former chairmen to determine how the decision- 
making process works. We also interviewed officials from independent 
regulatory agencies including the Nuclear Regulatory Commission, 
Federal Energy Regulatory Commission, and the Federal Trade Commission 
and, where available, reviewed their internal commission procedures to 
understand how other independent regulatory agencies implement the 
commission decision-making process. We reviewed FCC's decision-making 
procedures and public comment and ex parte rules, and compared certain 
aspects to standards established in GAO's internal control standards 
and other relevant documents. In addition, we interviewed industry, 
consumer advocate, and regulatory representatives to gain their 
perspectives on providing information to FCC during the decision-making 
process and to identify alternative approaches to the decision-making 
process. Finally, we reviewed FCC documents, policy papers from outside 
stakeholders, letters to the Presidential Transition Task Team, as well 
as proposed legislation to determine proposals for altering FCC's 
public comment process. 

To examine whether FCC's personnel management and workforce planning 
efforts ensure that FCC has the workforce needed to achieve its 
mission, we reviewed prior GAO products related to strategic workforce 
planning and human capital challenges. We then reviewed FCC-generated 
data on overall staff levels, hiring, attrition, and retirement 
eligibility over the period of 2003 to 2008. We also reviewed FCC's 
2007-2011 Strategic Human Capital Plan to determine the challenges FCC 
has identified for addressing future workforce issues, as well as its 
proposed solutions. We reviewed FCC's methods for identifying needed 
skill sets and competencies, including surveys of staff and focus 
groups. We analyzed results from the Office of Personnel Management's 
(OPM) Federal Human Capital Survey for 2008 and compared FCC's 
responses on various items with the responses of the rest of U.S. 
government staff. 

We performed our review from August 2008 to October 2009 in accordance 
with generally accepted government auditing standards. Those standards 
require that we plan and perform the audit to obtain sufficient, 
appropriate evidence to provide a reasonable basis for our findings and 
conclusions based on our review objectives. We believe that the 
evidence obtained provides a reasonable basis for our findings and 
conclusions based on our audit objectives. 

Table 3: Organizations Interviewed: 

American Cable Association: 
Association for Maximum Service Television: 
Association of Public Television Stations: 
AT&T: 
Consumer Electronics Association: 
COMPTEL: 
Consumers Union: 
CTIA-The Wireless Association: 
DIRECTV Satellite Television: 
Information Economy Project: 
Levine, Blaszak, Block & Boothby (Telecommunications and Technology Law 
Firm): 
Media Access Project: 
National Association of Broadcasters: 
National Association of Regulatory Utility Commissioners: 
National Association of State Utility Consumer Advocates: 
National Association of Telecommunications Officers and Advisors: 
National Cable & Telecommunications Association: 
National Telecommunications Cooperative Association: 
Progress and Freedom Foundation: 
USTelecom-The Broadband Association: 
Verizon: 
Wiley Rein, LLP (represents a broad range of telecommunications 
clients): 

Source: GAO. 

[End of table] 

[End of section] 

Appendix II: FCC Bureaus and Functions: 

FCC staff is organized into seven operating bureaus and 10 staff 
offices. The bureaus' responsibilities include: processing applications 
for licenses and other filings; analyzing complaints; conducting 
investigations; developing and implementing regulatory policies and 
programs; and taking part in hearings. FCC's offices provide support 
services for the bureaus and commission. 

Office of Inspector General: The Office of Inspector General conducts 
and supervises audits and investigations relating to FCC's operations. 
The Inspector General reports to the chairman and informs the chair and 
Congress of fraud or any serious problems with the administration of 
FCC programs and operations discovered during audits and 
investigations; reviews and recommends corrective action, where 
appropriate; and reports on progress made in the implementation of 
those corrective actions. 

Office of Engineering and Technology: The Office of Engineering and 
Technology (OET) advises FCC on engineering matters, manages spectrum, 
and provides leadership in creating new opportunities for competitive 
technologies and services for the American public. OET allocates 
spectrum for nonfederal use and provides expert advice on technical 
issues before the commission, including helping commissioners 
understand the tradeoffs of technical issues. In addition to providing 
technical guidance to the commissioners, FCC's other bureaus rely on 
OET to provide leadership on high-level technical and engineering 
issues that do not fall within the scope of a particular bureau and to 
provide advice on technical issues handled in the bureaus. 

Office of General Counsel: The Office of General Counsel serves as the 
chief legal advisor to the commission and to its various bureaus and 
offices. The General Counsel also represents the commission in 
litigation in federal courts, recommends decisions in adjudicatory 
matters before the commission, assists the commission in its decision- 
making capacity, and performs a variety of legal functions regarding 
internal and other administrative matters. 

Office of Managing Director: The Office of Managing Director functions 
as chief operating official, serving under the direction and 
supervision of the chairman. The office develops and manages FCC's 
budget and financial programs, personnel management process and policy, 
develops and implements agencywide management systems, coordinates the 
commission meeting schedule, and manages the distribution and 
publication of official FCC documents. 

Office of Media Relations: The Office of Media Relations is responsible 
for the dissemination of information on commission issues. The office 
is responsible for coordinating media requests for information and 
interviews on FCC proceedings and activities and for encouraging and 
facilitating media dissemination of commission announcements, orders, 
and other information. 

Office of Administrative Law Judges: The Office of Administrative Law 
Judges is responsible for conducting the hearings ordered by the 
commission. The hearing function includes acting on interlocutory 
requests filed in the proceedings, such as petitions to intervene, 
petitions to enlarge issues, and contested discovery requests. An 
administrative law judge, appointed under the Administrative Procedures 
Act, presides at the hearing during which documents and sworn testimony 
are received in evidence, and witnesses are cross-examined. At the 
conclusion of the evidentiary phase of a proceeding, the presiding 
administrative law judge writes and issues an initial decision which 
may be appealed to the commission. 

Office of Legislative Affairs: The Office of Legislative Affairs is the 
FCC's liaison to Congress and provides lawmakers with information 
regarding FCC regulatory decisions, answers to policy questions, and 
assistance with constituent concerns. The office also prepares FCC 
witnesses for congressional hearings and helps create FCC responses to 
legislative proposals and congressional inquiries. Additionally, the 
office is a liaison to other federal agencies, as well as state and 
local governments. 

Office of Communications and Business Opportunities: The Office of 
Communications and Business Opportunities provides advice to the 
commission on issues and policies concerning opportunities for 
ownership by small, minority, and women-owned communications 
businesses. The office works with entrepreneurs, industry, public 
interest organizations, individuals, and others to provide information 
about FCC policies, increase ownership and employment opportunities, 
foster a diversity of voices and viewpoints over the airwaves, and 
encourage participation in FCC proceedings. 

Office of Workplace Diversity: The Office of Workplace Diversity 
advises the commission on all issues related to workforce diversity, 
affirmative recruitment, and equal employment opportunity. 

Office of Strategic Planning and Policy Analysis: The Office of 
Strategic Planning and Policy Analysis (OSP) is responsible for working 
with the chairman, the commissioners, bureaus, and offices to develop a 
strategic plan identifying short-and long-term policy objectives for 
the agency. OSP consists of economists, attorneys, and MBAs who serve 
as expert consultants to the commission in areas of economic, business, 
and market analysis and other subjects that cut across traditional 
lines, such as the Internet. The office also reviews legal trends and 
developments not necessarily related to current FCC proceedings, such 
as intellectual property law, the Internet, and e-commerce issues. 

International Bureau: The International Bureau represents the 
commission in satellite and international matters. This includes 
advising the chairman and commissioners on matters of international 
telecommunications policy and the status of the commission's actions to 
promote the vital interests of the American public in international 
commerce, national defense, and foreign policy areas. The bureau also 
develops, recommends, and administers policies, rules, and procedures 
for the authorization and regulation of international 
telecommunications facilities and service and domestic and 
international satellite systems. 

Wireless Telecommunications Bureau: The Wireless Telecommunications 
Bureau handles all FCC domestic wireless telecommunications programs 
and policies--except those involving public safety, satellite 
communications, or broadcasting--including licensing, enforcement, and 
regulatory functions. Wireless communications services include cellular 
telephone, paging, personal communications services, and other 
commercial and private radio services. The bureau also regulates the 
use of radio spectrum to fulfill the communications needs of business, 
aircraft and ship operators, and individuals. The bureau is responsible 
for implementing the competitive bidding authority for spectrum 
auctions. 

Enforcement Bureau: The Enforcement Bureau is responsible for enforcing 
provisions of the Communications Act of 1934, FCC's rules and orders, 
and the terms and conditions of station authorizations. Major areas of 
enforcement that are handled by the Enforcement Bureau are (1) consumer 
protection enforcement, (2) local competition enforcement, and (3) 
public safety and homeland security enforcement. 

Consumer and Governmental Affairs Bureau: The Consumer and Governmental 
Affairs Bureau (CGB) develops and implements the commission's consumer 
policies, including disability access. The bureau conducts consumer 
outreach and education and maintains a Consumer Center that responds to 
consumer inquiries and complaints. CGB also maintains collaborative 
partnerships with state, local, and tribal governments in areas such as 
emergency preparedness and implementation of new technologies. 

Media Bureau: The Media Bureau develops, recommends, and administers 
the policy and licensing programs relating to electronic media, 
including cable television, broadcast television, and radio in the 
United States and its territories. The Media Bureau also handles 
postlicensing matters regarding direct broadcast satellite service. 

Wireline Competition Bureau: The Wireline Competition Bureau develops 
and recommends policy goals, objectives, programs, and plans for the 
commission on matters concerning wireline telecommunications. The 
Wireline Competition Bureau's overall objectives include ensuring 
choice, opportunity, and fairness in the development of wireline 
telecommunications services and markets; developing deregulatory 
initiatives; promoting economically efficient investment in wireline 
telecommunications infrastructure; promoting the development and 
widespread availability of wireline telecommunications services; and 
fostering economic growth. 

Public Safety and Homeland Security Bureau: The Public Safety and 
Homeland Security Bureau is responsible for developing, recommending, 
and administering the agency's policies pertaining to public safety 
communications issues. These policies include 911 and E911, operability 
and interoperability of public safety communications, communications 
infrastructure protection and disaster response, and network security 
and reliability. The bureau also serves as a clearinghouse for public 
safety communications information and takes the lead on emergency 
response issues. 

[End of section] 

Appendix III: Comments from the Federal Communications Commission: 

Federal Communications Commission: 
Washington, D.C. 20554: 

December 8, 2009: 

Mr. Mark Goldstein: 
Director, Physical Infrastructure: 
U.S. Government Accountability Office: 
Washington, DC 20548: 

Dear Mr. Goldstein: 

Thank you for the opportunity to respond to the draft Government 
Accountability Office (GAO) report concerning the management of the 
Federal Communications Commission (FCC or Commission). 

I am pleased to report that the Commission has already taken 
substantial, transparent, and measurable steps toward addressing the 
concerns identified in the GAO recommendations. In one of his first 
acts after taking office at the Commission, Chairman Genachowski 
appointed a Special Counsel for FCC reform. In August, at an FCC open 
meeting the Chairman announced that, in addition to the Special Counsel 
for reform, our new General Counsel and I would also focus on reform, 
transparency, and efficiency. We currently are performing a thorough 
review of the FCC's existing processes and have been making ongoing 
recommendations for improvement. This review includes: 

* A review of our public safety readiness;
* A review of our systems and processes for data collection, analysis 
and dissemination;
* Improvements in our licensing, comment, and complaint filing systems;
* Modernizing our information infrastructure to ensure the agency 
functions effectively and efficiently;
* Moving our workforce forward by streamlining our operations, greening 
the agency, and devising new plans for leadership development and 
training;
* Improving our institutional processes by better management of 
workflow, and reviewing our rules and policies to reduce backlogs; and
* Reviewing our financial operations. 

In its draft report on the management of the Commission, GAO makes 
three recommendations. We had begun action in each of these areas even 
before the GAO prepared its draft report. I address each of these 
recommendations and actions taken below. 

Inter-Bureau and Office Coordination and Commission Access to Staff 
Analysis: 

First, GAO recommends that the FCC "develop written policies on inter-
bureau coordination and Commission access to staff analyses." As GAO 
notes, the Commission has at times had various internal written 
processes and procedures regarding inter-bureau collaboration and 
communication, most of which are adhered to still to this day. As part 
of the FCC's reform agenda, the Special Counsel for FCC reform has been 
investigating how the Commissioners and staff communicate today, and 
how communication was accomplished in past Commissions. We will take 
the lessons learned from that inquiry and incorporate the best 
practices of the past and the present, into the agency's future 
internal procedures. 

In August, the Commission launched "reboot.fcc.gov" -- an internal 
online forum where employees can submit their ideas for improving and 
reforming the agency. The Commission's efforts to improve 
communications are not just internal, however. Chairman Genachowski is 
committed to altering how the agency works with the public as well. For 
instance, the Commission is soliciting public feedback and upgrading 
our website — one of the main ways in which our agency interacts with 
the public. We will focus on improving navigation, search capabilities, 
and the accessibility of information on our site. We will also be 
launching a section of the reboot.fcc.gov website where citizens can 
offer their ideas for FCC reform. 

The goal is an inclusive process through which the public can be 
involved in the work of the Commission. The process undertaken for 
developing the National Broadband Plan already has been and will 
continue to be the most inclusive in the agency's history. Since April 
2009, the Commission has held more than 30 public workshops: created 
Blogband, a new FCC blog dedicated to sharing ideas and progress in the 
development of the Broadband Plan; launched on an innovative "crowd 
sourcing" platform to generate and encourage public input into policy 
proposals; developed informational content viewable on YouTube, MySpace 
and Facebook; issued 25 public notices seeking input on broadband 
issues; and, as of December 1, had 192,598 followers on Twitter 
receiving FCC updates on the Broadband Plan. 

In addition, the process put into place for developing the National 
Broadband Plan s a prime example of Chairman Genachowski's model for 
inter-bureau and office coordination. The effort to date has involved 
unprecedented cooperation of almost every Bureau and Office in the 
Commission, sharing expertise and working closely with the core team 
dedicated to developing the National Broadband Plan. 

These activities provide a model for external communication efforts 
that will continue to be used well after the Commission delivers the 
Broadband Plan to Congress in February 2010. 

Ex Parte Reform: 

Another part of our communication reform effort involves the notice and 
comment process along with the ex parte policies of the Commission. In 
its second recommendation, GAO urges the Commission to "revise its 
notice and comment regulations and its ex parte policies." 

With respect to the ex parte rules, you correctly note that the 
Commission's current process can lead to vague or last-minute ex parts 
summaries of meetings held between Commission staff and outside 
parties. You also note that ex parte notices can be tiled up until an 
item is voted by the Commission (even during the Sunshine period that 
applies prior to the Commission's Open Meetings, if the ex parte notice 
fits into one of the current exceptions), making it difficult for 
outside parties (and sometimes even Commission staff) to track these 
notices and respond before an item is voted. Indeed, during the 
Sunshine period, a party may not respond unless it is invited to do so 
by Commission staff. We concur in your assessment that the current ex 
parte process should be reviewed and in August, Chairman Genachowski 
asked the Office of General Counsel to examine whether he should 
propose to the Commission that we begin a rulemaking proceeding to 
address some of these issues. 

In particular, the Chairman has asked the Office of General Counsel to 
look at possible proposals regarding how we ensure that ex parte 
summaries accurately and completely reflect what was said in oral ex 
ports meetings; whether we should examine the process by which ex ports 
notices are filed during the Sunshine period at the request of staff;
whether we could make better use of electronic filing of ex parte 
notices to increase their availability to Commission staff and outside 
parties; and also how we might enhance the enforcement of our rules 
requiring public disclosure of ex parte communications.
Our effort won't stop at reforming the ex ports process itself. We have 
already updated our Electronic Comment Filing System (ECFS), which 
allows consumers to submit, research, and print comments filed with the 
agency. The system is 10 years old and was in dire need of an upgrade. 
The improved ECFS is easier to navigate, has greater search 
capabilities, permits the filing of comments into multiple proceedings 
with a single submission, and allows filers to learn of new comments 
matching criteria via RSS feeds, among other enhancements. These 
changes to ECFS will directly improve an external stakeholder's ability 
to respond to ex parts summaries filed by other interested parties. 

With respect to notice and comment rulemakings, GAO states that the 
"FCC rarely includes the text of the proposed rule in the notice, which 
may limit the effectiveness of the public comment process." GAO Review 
at 24. GAO further notes that from 1990 through 2007, only 11.4% of the 
FCC's NPRMs contained the text of proposed rules. The Commission has 
worked to improve its record in this area by including the text of 
proposed rules in all of the recently issued NPRMs. The recent 
improvements to ECFS, moreover, will allow parties to review comments 
in the record of FCC proceedings more effectively — and thereby enhance 
their ability to respond. 

In addition, to ensure that the FCC is data-driven in its decision-
making, the Chairman directed the FCC's Office of Strategic Planning 
and Policy Analysis to conduct a top-to-bottom review of the FCC's 
systems and processes for data collection, processing, analysis, and 
dissemination. That review was completed on September 24. As the 
nation's expert agency on communications, the FCC must have access to, 
and base its decisions on, data that are robust, reliable, and 
relevant. The review looked at whether any new data should be 
collected, whether any existing data reporting requirements should be 
streamlined or eliminated, and whether existing technological platforms 
can be modernized to make our use of data more effective and efficient. 
We expect to report publicly on the findings of the review shortly. 

Strategic Human Capital Planning: 

In its third recommendation, GAO states that the Commission should 
"develop targets identifying expertise needs, strategies for meeting 
targets, and measures for tracking progress." 

The report states the FCC faces challenges in ensuring it has the 
expertise needed to adapt to the changing marketplace. It cites as an 
example the high percentage of staff engineers and economists who are 
eligible for retirement. It further states that the FCC faces 
difficulty recruiting top candidates. While agreeing that it is 
critical that the agency maintain needed expertise for effective 
decision making, I disagree that the Commission has difficulty 
recruiting top candidates. 

It is true that a significant number of Commission engineers and 
economists are eligible for retirement. It does not follow, however, 
that we lack (or will lack) the expertise needed to adapt to a changing 
marketplace or that we have difficulty recruiting top talent. Attrition 
is a healthy component of human capital management and provides an 
organization with the opportunity to infuse the agency with new talent 
and ensure we have the latest knowledge and thinking regarding 
technology and science. Putting aside issues faced by all federal 
agencies, particularly pay scales, the FCC does not have difficulty 
recruiting top talent. Because of our unique mission and the influence 
our regulatory activities have on the communications industry and 
practices, we have traditionally been able to attract large numbers of 
highly qualified candidates. 

Regarding the recommendations, we agree that revisions to our Strategic 
Human Capital plan should identify targets and the ability to measure 
those targets. Our current plan identifies workforce expertise and 
strategies. We will, however, revisit these plans and targets in 
conjunction with the issuance of a new Commission Strategic Plan in 
fiscal year 2010. 

Specifically, the GAO report recommends that to improve the FCC's 
workforce planning efforts, in revising the current strategic human 
capital plan, the FCC should include: 

* Targets that identify the type of workforce expertise needed;
* Strategies for meeting these targets —- including methods to more 
flexibly augment the workforce, and; 
* Measures for tracking progress towards these targets. 

The report further states that without specific targets, the FCC cannot 
monitor and evaluate the agency's progress towards meeting its 
expertise needs. 

As GAO recommends in its draft report, the FCC already makes efforts to 
determine the critical skills and competencies that are needed to 
achieve its mission and programmatic goals, and has developed workforce 
hiring and training strategics. Further, the FCC pursues a variety of 
strategies to address new expertise needs and human capital challenges. 

With regard to the example of economist and engineer retirement 
eligibility, as outlined in our Strategic Human Capital Plan, we 
identified the high number of economist and engineers eligible to 
retire and took steps to address this concern. We ramped up engineering 
recruitment with an emphasis on entry level hiring. As stated in the 
report, 30 engineers retired during fiscal years 2007 and 2008, and 53 
were hired. Of those hired, 43 were at the entry level (GS-7 through 
9), six were hired at the mid level (GS-11-13), and four at the top 
level (GS-14 and 15). As planned, we focused on the entry level hiring, 
but recognized the need for higher level expertise as well. We 
identified long term needs, and successfully addressed them in the 
context of short term conditions. We will continue to monitor and 
evaluate progress in hiring and human capital management, and, as 
recommended, will establish appropriate measures to document this 
activity. 

As Chairman Genachowski told Congress recently, revitalizing and 
retooling the FCC will be a marathon, not a sprint. The Commission has 
jumped off the starting line with strong strides and we will continue 
at this pace to establish this agency as the model for excellence in 
government. 

Perhaps most important, we are assembling an extraordinary team of 
individuals to help with FCC reform and with the many other challenges 
before us. This team includes top private-sector talent as well as 
individuals with many years of experience at the FCC, in other parts of 
government, and in non-profits. Because interdisciplinary collaboration 
is crucial to the FCC's success, our staff includes individuals from 
many disciplines. It is also increasingly clear that although the 
Commission has many experts in traditional fields, we will require 
additional engineers, technologists, economists and econometricians. To 
supplement our work in these areas, we have and will continue to look 
to experts outside the agency to challenge our thinking. This is most 
evident in our assembly of the team working to deliver the nation's 
first ever broadband plan to Congress in February 2010. 

While we cannot promise instant results, we can assure you of the 
Commission's commitment to institutionalizing change and to making the 
FCC a 21st-century agency for the information age — one that fights for 
consumers and families, and fosters investment and innovation, through 
fair, participatory, and data-driven processes. 

Sincerely, 

Signed by: 

Steven Van Rockel: 
Managing Director: 

[End of section] 

Appendix IV: GAO Contact and Staff Acknowledgments: 

GAO Contact: 

Mark L. Goldstein, (202) 512-2834 or goldsteinm@gao.gov: 

Staff Acknowledgments: 

In addition to the contact listed above, Andrew Von Ah (Assistant 
Director), Eli Albagli, Pedro Almoguera, Thomas Beall, Timothy Bober, 
Crystal Huggins, Delwen Jones, Aaron Kaminsky, Joshua Ormond, Sarah 
Veale, and Mindi Weisenbloom made major contributions to this report. 

[End of section] 

Footnotes: 

[1] 47 U.S.C. § 151. 

[2] The Telecommunications Act, which substantially amended the 
Communications Act, effected comprehensive reform of the nation's 
telecommunications statutory and legal framework. Pub. L. No. 104-104, 
110 Stat. 56 (1996). 

[3] Federal Communications Commission, Strategic Plan 2009-2014 
(Washington, D.C.). 

[4] The term "broadband" refers to advanced communications systems 
capable of providing high-speed transmission of services such as data, 
voice, and video over the Internet and other networks. Transmission is 
provided by a wide range of technologies, including digital subscriber 
line and fiber optic cable, coaxial cable, wireless technology, and 
satellite. Broadband platforms make possible the convergence of voice, 
video, and data services onto a single network. 

[5] Spectrum encompasses the entire range of electromagnetic radio 
frequencies used in the transmission of sound, data, and video. FCC is 
responsible for spectrum not used by the federal government, including 
spectrum used by individuals (e.g., garage door openers and computer 
modems), private organizations (e.g., radio and television 
broadcasters), and public safety and health officials (e.g., police and 
emergency medical technicians). 

[6] 47 U.S.C. § 154. 

[7] 47 U.S.C. § 155(b). 

[8] Id. 

[9] The commission has established four universal service programs. The 
high-cost program assists customers living in high-cost, rural, or 
remote areas through financial support to telephone companies. The 
schools and libraries program (commonly referred to as E-rate) assists 
eligible schools and libraries in procuring telecommunications and 
Internet services. The low-income program assists qualifying low-income 
customers through discounted installation and monthly telephone 
services and free toll limitation service. Rural health care assists 
health care providers located in rural areas through discounts for 
telecommunications and Internet access services. These programs are 
funded by the Universal Service Fund. Telecommunications carriers and 
certain other telecommunications providers must contribute to the fund 
based on a percentage of their interstate and international revenues. 
The Universal Service Administrative Company, or USAC, administers the 
daily operations of the federal Universal Service Programs on behalf of 
FCC. This report does not address FCC's management of this program. 

[10] Other laws and orders also apply to FCC rulemakings, including but 
not limited to the Regulatory Flexibility Act, the Congressional Review 
Act, the E-Government Act of 2002, and the Paperwork Reduction Act. 

[11] 5 U.S.C. § 552b. The term "agency," for purposes of the Sunshine 
Act, means "any agency…headed by a collegial body composed of two or 
more individual members, a majority of whom are appointed to such 
position by the President with the advice and consent of the Senate, 
and any subdivision thereof authorized to act on behalf of the agency." 
5 U.S.C. § 552b(a)(1). 

[12] The Communications Act specifies that FCC's meetings are to be 
held at least monthly. 47 U.S.C. § 155(d). 

[13] In addition, the Sunshine Act allows two of the five commissioners 
to deliberate with one another outside the context of a public meeting, 
even if there are fewer than five commissioners serving in office, 
since two commissioners do not constitute a quorum and cannot take 
action on behalf of the agency. A recently introduced bill would 
authorize three or more FCC commissioners to hold nonpublic 
collaborative discussions. See Federal Communications Commission 
Collaboration Act, H.R. 4167, 111th Cong. (2009). 

[14] Such meetings may be closed, in whole or in part, to the public 
under certain circumstances--for example, if the meetings relate to 
issues such as national defense, trade secrets, criminal 
investigations, and personal information. 5 U.S.C. § 552b(c). 

[15] 5 U.S.C. § 551 et seq. 

[16] 5 U.S.C. § 551(4) & (5). 

[17] FCC is not required to issue an NOI before issuing a Notice of 
Proposed Rulemaking, and as discussed later in the report, often does 
not. See 47 C.F.R. § 1.430. 

[18] 47 C.F.R. § 1.412. 

[19] 47 C.F.R. § 1.415. 

[20] 47 C.F.R. § 1.1202. 

[21] 47 C.F.R. § 1.1206(a)(1). 

[22] 47 C.F.R. § 1.1206(b). In permit-but-disclose proceedings, ex 
parte presentations by members of Congress or their staffs and other 
federal agencies or their staffs need be disclosed only if they are of 
substantial significance and clearly intended to affect the ultimate 
decision in the proceeding. Disclosure of ex parte presentations by 
members of Congress or their staffs and other federal agencies or their 
staffs will generally be made by the commission's staff. 

[23] 47 C.F.R. § 1.1203. 

[24] FCC Chairman, October 1997 to January 2001. 

[25] FCC Chairman, January 2001 to March 2005; FCC Commissioner, 
November 1997 to March 2005. 

[26] FCC Chairman, March 2005 to January 2009; FCC Commissioner, July 
2001 to March 2005. 

[27] Under the Telecommunications Act, telecommunications service is 
defined as the offering of telecommunications for a fee directly to the 
public, or to such classes of users as to be effectively available 
directly to the public, regardless of the facilities used. 47 U.S.C.§ 
153(46). Telecommunications is defined as the transmission, between or 
among points specified by the user, of information of the user's 
choosing, without change in the form or content of the information as 
sent and received. 47 U.S.C. § 153(48). 

[28] Under the Telecommunications Act, information service is defined 
as the offering of a capability for generating, acquiring, storing, 
transforming, processing, retrieving, utilizing, or making available 
information via telecommunications, and includes electronic publishing, 
but does not include any use of any such capability for the management, 
control, or operation of a telecommunications system or the management 
of a telecommunications service. 47 U.S.C. § 153(20). 

[29] Inquiry Concerning High-Speed Access to the Internet Over Cable 
and Other Facilities; Internet Over Cable Declaratory Ruling; 
Appropriate Regulatory Treatment for Broadband Access to the Internet 
Over Cable Facilities, Declaratory Ruling and Notice of Proposed 
Rulemaking, 17 FCC Rcd 4798 (2002). 

[30] Brand X Internet Servs. v. FCC, 345 F.3d 1120 (9th Cir. 2003), 
rev'd Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 
U.S. 967 (2005). 

[31] Appropriate Framework for Broadband Access to the Internet over 
Wireline Facilities; Universal Service Obligations of Broadband 
Providers, Report and Order and Notice of Proposed Rulemaking, 20 FCC 
Rcd 14853 (2005), aff'd Time Warner Telecom. Inc. v. FCC, 507 F.3d 205 
(3d Cir. 2007). 

[32] United Power Line Council's Petition for Declaratory Ruling 
Regarding the Classification of Broadband over Power Line Internet 
Access Service as an Information Service, Memorandum Opinion and Order, 
21 FCC Rcd 13281 (2006). 

[33] Appropriate Regulatory Treatment for Broadband Access to the 
Internet Over Wireless Networks, Declaratory Ruling, 22 FCC Rcd 5901 
(2007). 

[34] FCC's Agenda Handbook outlines the process for preparing, 
approving, and releasing decision documents at FCC and notes that 
"bureau/office chiefs are responsible for ensuring that their items are 
fully coordinated with other interested bureaus/offices" and "items 
should be fully coordinated with all applicable bureaus/offices before 
they are circulated to the commissioners." The most recent full version 
of the handbook was issued in March 2000, but FCC is updating selected 
sections for 2009. Neither the full version of the handbook or the 
draft 2009 update is publicly available. 

[35] For example, the Agenda Handbook noted that certain bureaus and 
offices should be consulted on specific issues, such as requiring a 
statement that the bureau or office coordinated with the International 
Bureau on issues with an international dimension. In addition, 
according to FCC's internal procedures, all items that raise spectrum 
allocation, technical standards, or efficiency issues should be 
coordinated with the Office of Engineering and Technology, and all 
items that have field enforcement consequences should be coordinated 
with the Consumer and Governmental Affairs Bureau. 

[36] GAO issues standards to provide an overall framework for 
establishing and maintaining internal control and for identifying and 
addressing major performance challenges and areas at the greatest risk 
for fraud, waste, abuse, and mismanagement. GAO, Internal Control 
Management and Evaluation Tool, [hyperlink, 
http://www.gao.gov/products/GAO-01-1008G] (Washington, D.C.: Aug. 1, 
2001). 

[37] Additionally, GAO previously found a number of practices that can 
help enhance and sustain collaboration among federal agencies that can 
also apply to collaboration between bureaus and offices. These 
practices include establishing compatible policies, procedures, and 
other means to operate across boundaries, identifying and addressing 
needs by leveraging resources, and agreeing on roles and 
responsibilities. GAO, Results-Oriented Government: Practices That Can 
Help Enhance and Sustain Collaboration among Federal Agencies, 
[hyperlink, http://www.gao.gov/products/GAO-06-15] (Washington, D.C.: 
Oct. 21, 2005). 

[38] Peer-to-peer applications allow individual computer users to 
transmit data directly to another user, without the use of an 
intermediate network server. Individuals use peer-to-peer applications 
as an alternative means of transmitting content and programs over the 
Internet. 

[39] This report focuses on OET and OSP because FCC officials told us 
these offices are responsible for addressing convergence and other 
crosscutting issues. See appendix II for a description of FCC's offices 
and bureaus. 

[40] Jonathan B. Baker, "Continuous' Regulatory Reform at the Federal 
Trade Commission," Administrative Law Review, vol. 49 (1997): 859-874. 

[41] Luke M. Froeb, Paul A. Pautler, and Lars-Hendrik Röller, "The 
Economics of Organizing Economists" Vanderbilt Law and Economics 
Research Paper No. 08-18 (July 3, 2008). Available at SSRN, [hyperlink, 
http://ssrn.com/abstract=1155237]. 

[42] Michael J. Copps, Remarks of Acting Chairman Michael J. Copps to 
the Federal Communications Commission Staff (Washington, D.C., Jan. 26, 
2009). 

[43] William E. Kennard, Memorandum on Decision-Making Procedures 
(Washington, D.C., Jan. 15, 1998). 

[44] 47 U.S.C. § 155. 

[45] The U.S. Commission on Organization of the Executive Branch of 
Government, "The Independent Regulatory Agencies: A Report With 
Recommendations" (Washington, D.C., 1949). 

[46] The President's Advisory Council on Executive Organization, "A New 
Regulatory Framework: Report on Selected Independent Regulatory 
Agencies" (Washington, D.C., 1971). 

[47] GAO, Standards for Internal Control in the Federal Government, 
[hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1] 
(Washington, D.C.: November 1999). 

[48] 42 U.S.C. § 5841(a)(1). 

[49] Nuclear Regulatory Commission, Internal Commission Procedures 
(online), http://www.nrc.gov/about-nrc/policy-making/internal.html 
(last updated August 4, 2006). 

[50] Jeffrey S Lubbers, A Guide to Federal Agency Rulemaking, 4th ed. 
(Chicago, Ill.: American Bar Association, 2006). 

[51] Lubbers, A Guide, p. 279, Federal Trade Commission Act, 15 U.S.C. 
§57 a(b)(1)(A) (stating that an agency must "publish a notice of 
proposed rulemaking including with particularity the text of the rule 
including any alternatives which the commission proposes to promulgate; 
and the reasons for the proposed rule"). 

[52] Small Business Administration, Office of Advocacy, RE: ex parte 
Presentation in a Non-Restricted Proceeding, Initial Regulatory 
Flexibility Analysis for 2002 Biennial Review - Review of the 
Commission's Broadcast Ownership Rules, MB Dkt. No. 02-277 (Washington, 
D.C., Apr. 9, 2003). 

[53] 5 U.S.C. § 553(b)(3). 

[54] Action for Children's Television v. FCC, 564 F.2d 458, 470 (D.C. 
Cir. 1977) (internal quotation marks and citations omitted). 

[55] See Long Island Care At Home, LTC v. Evelyn Coke, 551 U.S. 158, 
174 (2007). (The APA requires an agency conducting notice-and-comment 
rulemaking to publish in its NPRM "either the terms or substance of the 
proposed rule or a description of the subjects and issues involved." 5 
U.S.C. § 553(b)(3). The Courts of Appeals have generally interpreted 
this to mean that the final rule the agency adopts must be "a 'logical 
outgrowth' of the rule proposed." National Black Media Coalition v. 
FCC, 791 F.2d 1016, 1022 (CA2 1986). See also, e.g., United 
Steelworkers of America, AFL-CIO-CLC v. Marshall, 208 U.S. App. D.C. 
60, 647 F.2d 1189, 1221 (CADC 1980), cert. denied sub nom. Lead 
Industries Asso. v. Donovan, 453 U.S. 913, 101 S. Ct. 3148, 101 S. Ct. 
3149, 69 L. Ed. 2d 997 (1981); South Terminal Corp. v. EPA, 504 F.2d 
646, 659 (CA1 1974). The object, in short, is one of fair notice.) 

[56] Lubbers, A Guide, pp. 280, 292. 

[57] ICF International is a global professional services firm that 
partners with government and commercial clients to deliver consulting 
services and technology solutions in energy, climate change, 
environment, transportation, social programs, health, defense, and 
emergency management. 

[58] Gary Light, Will Baird, and David Bruce, Transparent Governing: 
Applying Information Technology to Improve Public Involvement in 
Rulemaking, a report prepared by ICF International, 2008, p.4. 

[59] According to an FCC official, this draft order was created in 
response to a request from then-Chairman Kevin Martin, but it was not 
circulated to the other commissioners. 

[60] H.R. 2183, 111th Cong. (2009). 

[61] An administrative law judge, appointed under the APA, presides at 
a hearing during which documents and sworn testimony are received in 
evidence and witnesses are cross-examined. At the conclusion of the 
evidentiary phase of a proceeding, the presiding administrative law 
judge writes and issues an initial decision which may be appealed to 
the commission. FCC currently has one administrative law judge, and the 
Office of Administrative Law Judges issued three initial decisions from 
2005 to 2007. FCC told us that during that time period, the two 
administrative law judges at FCC also issued at least three settlement 
decisions each year and handled cases for the Bureau of Alcohol, 
Tobacco, Firearms and Explosives and for U.S. Customs and Border 
Protection. 

[62] As previously noted, in permit-but-disclose proceedings, ex parte 
presentations by members of Congress or their staffs and other federal 
agencies or their staffs need be disclosed only if they are of 
substantial significance and clearly intended to affect the ultimate 
decision in the proceeding. Disclosure of ex parte presentations by 
members of Congress or their staffs and other federal agencies or their 
staffs will generally be made by the commission's staff. 

[63] 47 C.F.R. § 1.1206(b)(2). 

[64] Kathleen Q. Abernathy, "My View from the Doorstep of FCC Change," 
Federal Communications Law Journal, vol. 54, no. 2 (2002): 219. 

[65] Michael J. Copps, "Remarks of Acting FCC Chairman Michael J. 
Copps," FCBA Seminar: The Communications Act and the FCC at 75, 
(Washington, D.C., Feb. 24, 2009). 

[66] Commission Emphasizes the Public's Responsibilities in Permit-But- 
Disclose Proceedings, Public Notice, 15 FCC Rcd 19945 (2000). 

[67] 47 C.F.R. §0.251(g). 

[68] FTC's regulations regarding the permissibility of ex parte 
contacts vary depending on the type of proceeding. 

[69] Although DOJ generally will investigate telecommunications 
mergers, FTC may, in certain circumstances, investigate the proposed 
merger. 

[70] 47 U.S.C. §214(a) and §310(d). 

[71] Congressional Research Service, Merger Review Authority of the 
Federal Communications Commission (Washington, D.C., 2009). 

[72] 47 U.S.C. §303(r). 

[73] 47 U.S.C. § 214(c). 

[74] DSL is a technology commonly used by local telephone carriers for 
providing high-speed data services by electronically enhancing 
conventional copper telephone voice line, enabling it to simultaneously 
provide both voice and high-speed data traffic. 

[75] AT&T Inc. and BellSouth Corporation Application for Transfer of 
Control, Memorandum Opinion and Order, 22 FCC Rcd 5662 (2007); SBC 
Communications, Inc. and AT&T Corp. Applications for Approval of 
Transfer of Control, Memorandum Opinion and Order, 20 FCC Rcd 18290 
(2005) ("SBC/AT&T Order"); Verizon Communications Inc. and MCI, Inc. 
Applications for Approval of Transfer of Control, WC Docket FCC 06-189 
(rel. March 26, 2007); Verizon Communications Inc. and MCI, Inc. 
Applications for Approval of Transfer of Control, Memorandum Opinion 
and Order, 20 FCC Rcd 18433 (2005). 

[76] The "a la carte" option allows consumers to subscribe to and pay 
for only the programming they choose. 

[77] Philip J. Weiser, "FCC Reform and the Future of Telecommunications 
Policy," paper presented at Reforming the FCC conference held by Public 
Knowledge and Silicon Flatirons at the National Press Club, Washington, 
D.C., January 5, 2009. The paper is available online at [hyperlink, 
http://fcc-reform.org/paper/fcc-reform-and-future-telecommunications-
policy]. 

[78] Although most federal employees do not retire immediately upon 
becoming eligible, the number of employees becoming retirement-eligible 
in the near future points to the need for agencies to examine how these 
trends will affect them. OPM data from 2008 have indicated that roughly 
half of retirement-eligible employees are likely to still be employed 4 
years after becoming eligible. 

[79] According to FCC, although the number of supervisory economists 
eligible to retire is high, it is important to note that within FCC, 
economists are located throughout the bureaus and offices and are not 
necessarily supervised by other economists. 

[80] GAO, Human Capital: Key Principles for Effective Strategic 
Workforce Planning, [hyperlink, http://www.gao.gov/products/GAO-04-39] 
(Washington, D.C.: December 11, 2003). 

[81] GAO issues standards to provide the overall framework for 
establishing and maintaining internal control and for identifying and 
addressing major performance challenges and areas at the greatest risk 
for fraud, waste, abuse, and mismanagement. See [hyperlink, 
http://www.gao.gov/products/GAO-01-1008G]. 

[End of section] 

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