FCC Management:

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

GAO-10-79: Published: Dec 17, 2009. Publicly Released: Jan 19, 2010.

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Rapid changes in the telecommunications industry, such as the development of broadband technologies, present new regulatory challenges for the Federal Communications Commission (FCC). Government Accountability Office (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.

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.

Recommendations for Executive Action

  1. Status: Closed - Implemented

    Comments: In December 2009, we reported that the Federal Communication Commission (FCC) lacked written procedures for facilitating the flow of information within the agency which led to ineffective interbureau coordination and allowed prior chairmen to limit internal communication among staff and to exclude staff, which can result in items being developed without relevant expertise and knowledge. We therefore recommended that FCC develop written policies outlining how and when FCC will identify issues under jurisdiction of more that one bureau, assign lead bureaus, and ensure coordination and communication among staff with relevant expertise. In response to our recommendations, the Chairman issued written consultation procedures that identify items that should be brought to the attention of the various offices and bureaus within FCC, a process for how offices and bureaus should initiate consultation, and points of contact for each office and bureau. These procedures are publicly available on FCC's Web site. According to an FCC official, weekly steering committee meetings have also been instituted to help identify cross-cutting issues, and internal task forces have been created on topics ranging from spectrum to consumer issues to diversity, in order to facilitate offices working together on these cross-cutting issues. These actions have helped to ensure that expertise across the agency has been consulted on complex and cross-cutting issues, improving FCC's ability to respond to an evolving telecommunications marketplace.

    Recommendation: To ensure interbureau coordination on crosscutting issues, the FCC should develop written policies outlining how and when FCC will (1) identify issues under the jurisdiction of more than one bureau; (2) determine which bureau will serve as the lead on crosscutting issues and outline the responsibilities entailed regarding coordinating with other bureaus; and (3) ensure that staff from separate bureaus and offices can communicate on issues spanning more than one bureau.

    Agency Affected: Federal Communications Commission

  2. Status: Closed - Implemented

    Comments: After GAO issued this recommendation, FCC reviewed the need for coordination among all Bureaus and Offices on crosscutting issues. As a result, the Chairman issued a memorandum on "Consultation on Items Among the Bureaus and Offices" dated February 18, 2010. The memorandum requires the Bureau or Office originating an item for adoption by the Commission, or an item to be taken on delegated authority, to seek concurrence of the other relevant Bureaus and Offices. The memorandum specifies a process for such coordination. The memorandum lists conditions under which an item should be coordinated specifically with the Office of Engineering and Technology (OET) and the Office of Strategic Planning and Policy Analysis (OSP), respectively. After issuing this memorandum to improve interbureau coordination, the FCC did not find it desirable to redefine the roles and responsibilities of OET or OSP.

    Recommendation: To ensure interbureau coordination on crosscutting issues, the FCC should 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.

    Agency Affected: Federal Communications Commission

  3. Status: Open

    Comments: The Chairman has established guidance for how offices and bureaus should consult one another and work together. However, this guidance does not address or clarify policies on commissioner access to information from bureaus and offices.

    Recommendation: To clarify FCC's policies on providing commissioners access to information from bureaus and offices about agenda items, each FCC chairman, at the beginning of his or her term, should 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.

    Agency Affected: Federal Communications Commission

  4. Status: Open

    Comments: The Chairman has established guidance for how offices and bureaus should consult one another and work together. However, this guidance does not address or clarify policies on commissioner access to information from bureaus and offices.

    Recommendation: To clarify FCC's policies on providing commissioners access to information from bureaus and offices about agenda items, the FCC should provide this policy to FCC's congressional oversight committees to aid their oversight efforts.

    Agency Affected: Federal Communications Commission

  5. Status: Closed - Implemented

    Comments: In 2009, we found that weaknesses in the Federal Communications Commission's (FCC) processes for collecting public input on proposed rules may limit the effectiveness of the public comment process. Specifically, FCC typically did not include the text of a proposed rule in its notices of proposed rulemaking (NPRMs), which are used to provide an opportunity for stakeholders to submit their comments on proposals to create new rules or modify existing ones. Instead, FCC would ask for comments on wide-ranging issues. Several stakeholders stated that such broad NPRMs limit their ability to submit meaningful comments that address FCC's information needs. We therefore recommended that FCC, 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. In response, FCC's Chairman testified in May 2011 that FCC has significantly increased the number of NPRMs that contained the text of proposed rules from 38% to 85%, stating that this was a best practice FCC has been working to achieve. We reviewed a sample of NPRMs issued in 2011 and found that 20 of the 24 NPRMs we selected included proposed rule text. These actions will improve the transparency and effectiveness of FCC's decision-making process by allowing stakeholders to more easily determine what action FCC is considering and what information would be most helpful to FCC when developing a final rule.

    Recommendation: To improve the transparency and effectiveness of the decision-making process, the FCC should, 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.

    Agency Affected: Federal Communications Commission

  6. Status: Closed - Implemented

    Comments: In December 2009, we found that weaknesses in the Federal Communications Commission's (FCC) process for documenting ex parte contacts between FCC officials and external parties--which, if oral, are made without advanced notice to other parties and without opportunity for them to be present--had negatively impacted stakeholder perceptions of transparency and public participation in FCC's decision-making process. Specifically, several stakeholders told us that FCC's process allowed vague ex parte summaries. In addition, stakeholders told us that in some cases, ex parte contacts occurred 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, or sometimes just before a commission vote, which limited stakeholders' ability to determine what information was provided and to rebut or discuss that information. We therefore recommended that FCC revise its ex parte policies to include: (1) modifying its current guidance to further clarify FCC's criteria for determining what is a sufficient ex parte summary; (2) clarifying FCC officials' roles in ensuring the accuracy of ex parte summaries and establish a review process of these summaries; and (3) creating a mechanism to ensure all commissioners are promptly notified of substantive filings made on items that are on the Sunshine Agenda. FCC issued a notice of proposed rulemaking to gather public comment on reforming its ex parte process, citing our report when discussing concerns with the ex parte process. FCC then issued a report and order amending the Commission's ex parte rules. In the report and order, FCC provided guidance to clarify what constituted a sufficient ex parte summary, noting that if the presentation is limited to material already in the written record, then the ex parte filing must contain either a brief summary of the matters discussed or a citation to the page or paragraph number in the party's written submission(s) where the matters discussed can be found. FCC also stated that parties should summarize any new information provided during an oral ex parte, and that summaries must be sufficiently detailed that they would inform a person who did not attend the presentation of the facts that were discussed, the arguments made, and the support offered for those arguments. In addition, FCC clarified the roles of FCC officials by modifying its rules to require that parties send electronic copies of all electronically filed ex parte notices to all staff and Commissioners present at the ex parte meeting, so as to enable them to review the notices for accuracy and completeness. FCC noted that filers may be asked to submit corrections or further information as necessary for compliance with the rules, and explained that when FCC staff believes there are instances of substantial or repeated violations of the ex parte rules, they should report such to the General Counsel. To facilitate stricter enforcement of the ex parte rules, FCC also authorized the Enforcement Bureau to levy fines for ex parte rule violations. Finally, to ensure that commissioners are notified of substantive filings during the Sunshine period, FCC required that parties making ex parte presentations on items that are on the Sunshine Agenda file their ex parte summaries in the record by the end of the same day on which the presentation was made. These actions will improve the transparency and effectiveness of FCC's decision-making process by enabling stakeholders to more easily determine and, if necessary, rebut the information provided during ex parte meetings.

    Recommendation: To improve the transparency and effectiveness of the decision-making process, the FCC should revise its ex parte policies to include (1) 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; (2) clarifying FCC officials' roles in ensuring the accuracy of ex parte summaries and establish a proactive review process of these summaries; and (3) creating a mechanism to ensure all commissioners are promptly notified of substantive filings made on items that are on the Sunshine Agenda.

    Agency Affected: Federal Communications Commission

  7. Status: Open

    Comments: FCC has begun development of a new strategic workforce plan to be folded into its overall strategic plan. FCC is working with OPM to provide assistance. Specifically, OPM has been tasked with developing a product that will improve workforce planning, to be completed in the fall of 2014. The product will be the basis of FCC's next strategic workforce plan. According to FCC officials, the plan will align with FCC's strategic plan and OPM's requirements for small agencies. It will include metrics on specific HR and workforce activities to evaluate the effectiveness and implementation of the plan's strategic goals. The plan will provide a roadmap for implementing the strategies but include flexibility to meet the dynamic and changing FCC organizational requirements. Given the ongoing nature of FCC's work in this area, we are keeping this recommendation open until OPM and FCC complete their work product.

    Recommendation: To improve FCC's workforce planning efforts, the FCC should, 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 Affected: Federal Communications Commission

 

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