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Ajit Pai is making the FCC more transparent — but only when it suits him

Ajit Pai is making the FCC more transparent — but only when it suits him

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Senate Judiciary Committee Hears Testimony From FCC Leaders On Proposed FCC Privacy Rules
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FCC chairman Ajit Pai has had a whirlwind first month, taking immediate action to scale back net neutrality, slow broadband subsidies for low-income households, and block efforts to reform the exorbitant calling rates to prisons.

But in the background of all of this, Pai has also made a series of changes at the commission in the name of transparency. He’s explored publishing FCC orders a month before they're voted on, alongside a one-page summary (instead of close to one month after they’re voted on); limited the extent to which the commission can edit orders after a vote; and given commissioners more oversight of enforcement actions (fines, mostly) that punish companies for violating FCC rules

“The jury is probably a little bit out.”

These appear to be positive developments for the public. We get more insight into what the FCC is up to, and more assurance that the commission won't try to meaningfully alter orders at the last second. Politicians and former FCC insiders seem to agree, to a point. But many also express concerns that the changes could backfire, by working in lobbyists’ favor, slowing down the commission, or putting its rulings in a legally precarious position. Some also questioned how committed Pai was to transparency, pointing out that he’s been less than forthcoming about the commission’s most controversial actions.

Michael Copps, who served as a Democratic FCC commissioner between 2001 and 2011 and even had a brief stint as acting chairman, said the changes generally seemed like a good move. But in some cases, "the jury is probably a little bit out."

"Any organization can be improved in the way it runs," Copps, now an adviser to the watchdog group Common Cause, told The Verge over the phone. "I've always been in favor of such things as getting paper circulated and informing the public about what the commission is considering on its docket, so I'm willing to try that."

Republican Representatives with oversight of the FCC praised the moves as well, saying they "create a more open, transparent, and accountable FCC." In a joint statement, Representatives Greg Walden (R-OR) and Marsha Blackburn (R-TN), who hold leadership positions in the House Energy and Commerce committee, said Pai's changes bring "the type of transparency we’ve been urging the FCC to implement for the last several Congresses."

Everyone gets more access — lobbyists included

But others expressed concern. Gigi Sohn, who worked at the FCC until recently as a counselor to then-chairman Tom Wheeler, said that while she supports Pai's intentions, publishing entire orders before a vote could put the commission's actions in a risky legal situation. If the commission proceeds to a vote without addressing concerns and comments, it may be in violation of the Administrative Procedure Act, which establishes a step-by-step process the commission has to abide by. On the other hand, if the commission decided to address comments and republish an order, Sohn says it could end up in “an unending cycle” requiring yet another round of comments.

"If they want to do that with their net neutrality repeal, have at it," she said. "Because they'll never be able to get to a decision without having [Administrative Procedure Act] problems."

Two people we spoke with, Copps and Representative Anna Eshoo, who sits on a House Energy and Commerce subcommittee that oversees the FCC, were also worried that publishing the full order before a vote could benefit lobbyists.

"Every last special interest is gonna be in there lobbying," Eshoo said during a call earlier this month with The Verge. "You have to think it through so that you bring about transparency after the commission has done some of its study and groundwork on a given issue. So we'll see."

“I'm glad it's a pilot project because it might not work.”

Copps said he was concerned that groups like Native Americans, inner-city residents, or people with disabilities wouldn't have the resources to quickly respond to FCC orders impacting them. "If you put something out ahead of time, we all know who has the inside track," Copps said. "It's the big companies, lobbyists, law firms."

But while Sohn opposed revealing the entire order, she said that publishing it, or a summary, for everyone to see could actually level the playing field.

"There's an information asymmetry," Sohn said. "[Lobbyists] are gonna know more" than someone who isn't able to meet with FCC staff, "and similarly, they'll have more influence. ...A detailed summary could solve that problem."

In a statement to The Verge, the commission also argued that early publication of upcoming orders would help to ensure that items were in the public interest. “The chairman’s pilot transparency initiative to pull back the curtain on draft items before the commission and other process reforms will go a long way toward ensuring that items are in the public interest before they are adopted and that the American people are more informed about the commission’s activities,” said a commission spokesperson.

As the comment notes, Pai's plan to release the full text of FCC orders remains a "pilot program." It kicked off last month with the release of two orders to be voted on this Thursday. Sohn points out that these are relatively uncontroversial orders, which may be why Pai decided to start with them.

"I hope that it would work," Copps said. "I'm glad it's a pilot project because it might not work."

Democrats say Pai’s most controversial actions weren’t very transparent

Procedural changes aside, Democrats haven't viewed Pai’s commission as a bastion of transparency. That's largely thanks to Pai’s second week on the job, during which he killed a major investigation into net neutrality violations with little comment and without consensus from commissioners; he retracted several already published papers without presenting any reasoning; he slowed the expansion of broadband subsidies for low-income households, citing largely unproven claims of fraud; and he removed the FCC from a lawsuit defending an order, passed under his predecessor, that would lower calling rates for inmates.

"If we're gonna talk about 'everything's gonna be open and above board,' then I think we ought to apply that into a number of items like these," says Copps.

Copps points out that these controversial changes were "released kind of quietly" (all on a Friday evening) and didn't give the commissioners any say.

“People are upset about the substance of what he's doing.”

The only sitting Democratic commissioner on the FCC, Mignon Clyburn, also chided Pai for not sticking to "our shared commitment to increased transparency” when making this slew of retractions, reversals, and decisions.

A commission spokesperson said that the reversals were actually done to make the commission more transparent, saying they hadn’t received proper scrutiny in the first place. The rescinded items “were adopted in the final hours of the previous administration without proper vetting and review,” a spokesperson told The Verge. “Wiping the slate clean with respect to these items will enable the commission to move forward with a fresh start on a more transparent basis to correct mistakes of the past.”

Month two of Pai’s tenure at the FCC begins this week. He’ll host his second commission meeting as chairman and, some days thereafter, announce the next series of items he’ll put up for a vote. He may take the opportunity to provide an update on his transparency initiatives, too — he’s already taken to writing lengthy posts on Medium. If he does, critics will be watching how open he is about the commission’s most contentious actions.

"It's a good way for him to get accolades from friends on the hill, but nobody is really fooled, right?" Sohn asks. "People are upset about the substance of what he's doing. He's trying to use it as a smokescreen. It isn't working."