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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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