Wallsten Analysis Sheds Light on FCC Process
Contact: Amy Smorodin
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February 10, 2015 – The Federal Communications Commission’s unique custom of voting on orders not yet released to the public, and granting “editorial privileges” after approval, raises obvious transparency concerns, explains Scott Wallsten in “Administrative Procedures, Bureaucracy, and Transparency: Why Does the FCC Vote on Secret Texts?” released today by the Technology Policy Institute. Moreover, an analysis of delays in publication in the federal register after the vote suggests that edits made after the approval of an order go beyond simple copy editing and are probably of a more substantive nature.
In his paper, Wallsten, TPI Vice President for Research and Senior Fellow, performed an empirical analysis of FCC voting and publication delays in order to reveal how prevalent the transparency issues have been historically for the agency. Wallsten finds:
- Delays in publication increased radically in the 1970s, when previously the mean delay between vote and publication was about one day and the median delay was zero days. While it has fallen since then, delays still remain the norm, especially for major orders.
- The number of ex partes filed before the vote is correlated with a smaller share of commissioners voting “yes” on the order. A lower share of “yes” votes translates to a longer delay between vote and publication.
- While delays differed significantly across chairmen, there is no statistically significant difference in delay across bureaus.
- Commissioners are most likely to vote yes on orders covering public safety than any other topic, while orders that cover spectrum have significantly longer publication delays.
- The length of the order is not correlated with voting outcome or delay. The lack of correlation between the length of the order and the delay suggest that “editorial privileges” are not granted merely to copy edit a document.
“Generally speaking,” Wallsten concludes, “the data suggest that despite detailed instructions in the Administrative Procedure Act, the chairman can have significant influence on the rulemaking process. More importantly, the data suggest that ‘editorial privileges’ are granted for more than mere copyediting.” In addition, Wallsten states, “More controversial orders yield more dissent and longer delays, implying either that commissioners engage in substantive negotiating following a vote or that the commission pays extra attention to the details of an order the more likely the commissioners believe it will be challenged in court.”
“Administrative Procedures, Bureaucracy, and Transparency: Why Does the FCC Vote on Secret Texts?” is available on the TPI website.
The Technology Policy Institute
The Technology Policy Institute is a non-profit research and educational organization that focuses on the economics of innovation, technological change, and related regulation in the United States and around the world. More information is available at https://techpolicyinstitute.org/.
