Federal Communications Commission Chairman Ajit Pai yesterday announced a seemingly simple step to make the FCC's rulemaking process more open to the public: the FCC intends to release the full text of rulemakings before they're voted on instead of days after the vote.

Pai and fellow Republican Michael O'Rielly repeatedly complained about the secrecy of rulemakings when Democrat Tom Wheeler was chairman. Wheeler followed the practice of previous chairs by publicly releasing a summary of the proposed rules a few weeks before the FCC's meetings, while negotiations over the final text of orders continued behind closed doors. The actual text of rulemakings wasn't released until after the vote.

In the case of net neutrality, Pai complained three weeks before the vote that he couldn't share the full text of the draft order with the public. The full text wasn't released until two weeks after the vote.

Here is President Obama's 332-page plan to regulate the Internet. I wish the public could see what's inside. pic.twitter.com/bwwAsk8ZiB — Ajit Pai (@AjitPaiFCC) February 6, 2015

"Today, we begin the process of making the FCC more open and transparent," Pai said yesterday. He then released the text of two proposals scheduled for a vote at the commission's meeting on February 23, one on allowing TV broadcasters to use the new ATSC 3.0 broadcast standard and another on "giving AM radio broadcasters more flexibility in siting their FM translators."

Possible complications

But Pai didn't commit to releasing the text of all items voted on by the FCC in advance. There are four other votes scheduled for the February 23 meeting on items for which the full text hasn't been made public. Pai acknowledged that changing the FCC process isn't as easy as flipping a switch.

He called releasing two draft decisions "a pilot project that, if successful, will become a commission practice... Between now and our monthly meeting on February 23, we will closely assess how the process plays out with respect to these items. Should things go well, my hope is to make it the norm to publicly release, well in advance, the text of all agenda items for monthly commission meetings."

This would certainly make it easier for journalists to report on the impacts of rulemakings before they're voted on. Congressional Republicans pressed Wheeler to make releasing the text of orders in advance a standard practice, and there is pending legislation that would make it a requirement.

But Wheeler said during his chairmanship that such a practice would cause long delays in rulemakings. Wheeler told Republicans in Congress in May 2015 that making the full text public in advance could make it easier for opponents to kill proposals they don't like. Wheeler said:

Releasing the text of a draft order in advance of a commission vote effectively re-opens the comment period. That’s because, under judicial precedent, the commission must "respond in a reasoned manner to those comments that raise significant problems." It won’t take much for a legion of lawyers to pore over the text of an order and file comments arguing that new issues are raised by its paragraphs, sentences, words, perhaps even punctuation. This means the commission would be faced with litigation risk unless it addressed the comments received on the draft order. This would result in the production of a new draft order, which in turn could lead to another public comment period—and another if a new draft order were released in response to subsequent public comment. The end result: the threat of a never-ending story that prevents the commission from acting—or forces it to accept undue legal risk of reversal if it ever does. This potential for extreme delay undermines the commission’s efficiency without enhancing its expertise. And it does so at the cost of the consumers and businesses that rely on commission decisions.

That doesn't mean the public can't offer input on FCC proposals, because there are lengthy comment periods before orders are finalized. The process begins with a detailed Notice of Proposed Rulemaking (NPRM), kicking off a comment period, and then the FCC takes the public input into account and writes a final order. With net neutrality, a 99-page PRM was issued in May 2014. Four million public comments followed, the plan was changed substantially over the objections of broadband industry lobbyists, and it was then voted on in February 2015.

"To release the draft [before a vote] would only step between the commissioners and their responsibilities," Wheeler said. "The FCC is an expert agency. Staff and commissioners draw upon their expertise, supplemented by the input received in the notice-and-comment process, to analyze an issue. Then based on that record, the commissioners work to reach a majority consensus."

Pai argued yesterday that keeping order text secret before a vote lets FCC leadership manipulate public opinion. "The contents of FCC proposals and orders [don't] remain secret to everyone," he said. "Lobbyists with inside-the-Beltway connections are typically able to find out what’s in them. But the best that average Americans will get is selective disclosures authorized by the Chairman’s Office—disclosures designed to paint items in the most favorable light. More often, the public is kept completely in the dark."

Pai criticized Wheeler's process in March 2016 after a vote on changing the Lifeline phone subsidy program so that it can also be used to buy Internet service. Pai said there had been a bipartisan compromise but that Wheeler undermined the compromise by leaking information to the press. Wheeler was able to gain enough Democratic votes to push through a version of the proposal that Republicans disapproved of.

Pai and O'Rielly also received criticism in September 2016 from Congressional Democrats who said the Republican commissioners refused to give Congress documents needed to complete an investigation into the FCC's net neutrality rulemaking process.

While Pai hasn't yet committed to making the pre-vote release of orders permanent, O'Rielly said he's confident that the pilot project will go smoothly. "If this initial attempt goes well—and I see no reason why it wouldn’t—I think we will all find this to be a significant upgrade in terms of quality of feedback, quality of process, and ultimately quality of the commission's work product," O'Rielly said.

O'Rielly acknowledged that the change "may make our jobs a bit more challenging," but he added that "it is the right thing to do for the American people, the practitioners before the commission and the professional press who report on commission activities."