Reboot FCC: Initial Results of Website

Suggestion Scorecard

Last week FCC opened the public version of reboot.fcc.gov including a call for suggestions in response to 47 issues.  Here is the scorecard of suggestions received as of10:30 AM EST 1/11.  The questions "How can the data released on FCC.gov/data be better formatted so as to be more useful to the public?" is by far the most popular.  Perhaps being first in the list is a major contributor to this lead.

In any case, vox populi, vox dei, we hope you check up on the suggestions, vote on those that are there, and input your own.  Oddly, using your Facebook account is the easiest way to sign in to input information or to vote.  No, you can not sign in using your FCBA membership or even your FRN.  That says something about the grassroot approach being used here!

Spectrum policy is too important to be left to lobbyists and lawyers!

Get involved!

"The Enlightenment Returns":
Science Magazine Editorial on Obama Memorandum on Scientific Integrity

A prominent communications attorney once told me "Some questions really do have answers". Many of the technical policy questions before FCC involve key nonquantitative factors that are an integral part of the FCC's jurisdiction. But many of them also involve technical subproblems that are often subject to quantitative analysis and answers. Examples include questions like

1) At what distance will a TV White Space device of power x cause interference to a cochannel TV signal of power y?
2) How many terrestrial emitters can be in satellite uplink band z before they impact the uplink adversely?
3) Does cell phone jamming in prisons inevitably lead to harmful interference outside of prisons?

These questions have explicit answers. How the policy makers should make final policy based on these is a subjective question and that is why there are 5 presidential appointees at FCC to make the final decisions.

But in recent years FCC has at times bent the science to meet the needs of powerful interests before it. Will System X cause interference? Let's pick the answer that makes the 8th Floor's job easier That's why I was happy to report on the President's Memorandum on Scientific Integrity recently. This policy applies directly to NTIA since it is an Executive Branch agency. I hope that FCC takes the initiative to adopt it also.

Here is an editorial from Science on this memorandum. Coauthor Varmus is former Director of NIH and a cochair of the President's Council of Advisors on Science and Technology.

The Enlightenment Returns
Kurt Gottfried and Harold Varmus

The authors of the Declaration of Independence and the Constitution of the United States were children of the Enlightenment. They understood the power that flows from combining human reason with empirical knowledge, and they assumed that the political system they were creating would thrive only in a culture that upheld the values of the Enlightenment. And thrive it did, in large part because our people and government upheld those values throughout most of U.S. history. Recently, however, the precepts of the Enlightenment were ignored and even disdained with respect to the manner in which science was used in the nation's governance. Dogma took precedence over evidence, and opinion over facts. Happily, as was made clear by two policy announcements by President Barack Obama on 9 March 2009, the break in the traditionally harmonious relationship between science and government is now ending.

The first announcement, which dealt decisively with a single important and politically volatile issue, the funding of stem cell research, received the most attention. But the second, on scientific integrity, has greater breadth and at least equal significance. For as the president put it, "promoting science isn't just about providing resources--it is also about protecting free and open inquiry … free from manipulation or coercion, and listening to what [scientists] tell us, even when it's inconvenient--especially when it's inconvenient." In using the words "manipulation" and "coercion," the president was not speaking purely in the abstract; he was alluding to recent breaches of a code to which government must adhere if science is to play its proper role in advising the government on such complex issues as public health, climate change, or environmental protection. When the government systematically disregards this code, it undermines the historic role of science as a bulwark of an enlightened democracy.

In the president's Memorandum on Scientific Integrity last week, addressed to the heads of all executive departments and agencies, he directed those officials to neither suppress nor alter scientific and technological findings solicited in the process of policy formulation. He also asked that scientific information developed or used by the government be made readily available to the public. To put these directives in place, the president requested the director of the Office of Science and Technology Policy to develop, within 120 days, recommendations "designed to guarantee scientific integrity throughout the executive branch" and to ensure "that scientific data is never distorted or concealed to serve a political agenda."

The recommendations called for to sustain these bold ambitions would place scientific competence and integrity among the core principles of the government's science-based endeavors. For example, they should ensure that the selection of scientists for government positions is based on scientific qualifications and experience, establish means for addressing instances in which scientific integrity may be compromised, and provide protections for those who draw attention to possible assaults on the integrity of scientific advice. The need for these measures derives, in part, from the many well-documented cases in which scientific integrity was recently breached, as when political appointees shut government scientists out of critical decisions that hinged on scientific information, prevented the transmission of scientific reports to Congress, appointed unqualified individuals to scientific panels because of their ideological or political persuasion, or censored government reports dealing with climate change and species extinction.

The U.S. scientific community now has an opportunity to strengthen the president's initiative by informing students, colleagues, and fellow citizens about the issues at stake; by willingly offering professional advice to government either informally or when invited to serve on agency panels; by supporting and encouraging scientists who are considering careers in government; or by taking a turn in government service. The president has taken a large and inspiring step to restore the historically beneficial balance between science and government; we should all now offer to help with the enlightened effort just launched.

A New Day Dawns at FCC:

Acting Chairman Copps
Addresses FCC Staff


Welcome change came to FCC yesterday with an address by Acting Chairman Copps to the FCC staff. Paralleling actions at the White House, Copps took quick action to try to undo some of the more pernicious policies of the ancienne regime and improve FCC effectiveness. Here is his statement on improved communications within FCC:

"Second is how Commissioners and Bureaus communicate between and among themselves. In order for all of us to do our jobs well, make reasonable policy decisions, oversee the regulated industries under our purview, and represent American consumers, we must improve these lines of communication as well. To promote more openness, starting this coming week, we will have a weekly Chairman’s Office Briefing with Bureau and Office chiefs, or their designees, and we will include a representative from each Commissioner’s office.

Opening up these meetings will, I am convinced, significantly improve the quality of our decision-making. It will also expedite the business of the Commission. I also want to ensure that my Commissioner colleagues have unfettered access to the Bureaus, with the presumption being that requests for information will be honored, and that there will be positive outreach from the Bureaus and Offices to them, with the presumption being that important information shouldn’t have to be asked for—it should be provided.

I realize this is not a bureau-created problem but, beginning now, requests from Commissioners’ offices—not just the Chairman’s Office—should be answered directly and as quickly as possibly, just as if the Chairman’s Office is asking for it and without the need for running those requests through the Chairman’s office first—the only exception I can currently think of being the very narrow one that such requests not be unusually time-consuming or necessitate an excessive juggling of Bureau or Office resources. In those cases, we will attempt to craft a workable solution."

I hope the new FCC will also consider one of my suggestions at the FCC Reform Conference:

"Open Door Policy
The House Energy and Commerce report documents how employees have been forbidden to speak to commissioners without the approval of the Chairman’s Office. This policy should be immediately revoked and a responsible system for staff members to express concerns over policy issues should be developed. The State Department model might be one for follow. Allowing responsible expression of employee concerns may actually decrease “leaks” as staffers feel that their thoughts are at least being considered rather than being totally ignored."

Congratulations Chmn. Copps on a good new beginning!

(From Ars Technica)

DOJ IG Wins "Lawyer of the Year"Award

FCC IG Under Investigation

The Washington Post recently had an editorial praising Department of Justice Inspector General Glenn Fine:

"Glenn A. Fine has had an extraordinarily busy year. As inspector general of the Justice Department, Mr. Fine has overseen investigations of politicized hiring practices, breaches of security involving classified documents, and the FBI's prosecution of the war on terrorism and its interrogation of terrorism suspects. His conclusions often have been unflattering to his nominal colleagues at the department, yet they have always been measured and backed up by copious documentation. As a result, his reports have not always been welcomed -- especially by those under scrutiny -- but they have rarely been questioned or criticized as being politically motivated or factually flawed. That's a rare feat in today's ultrapolarized Washington, and it is a testament to the professionalism of Mr. Fine and his office."

The editorial was occasioned by Mr. Fine being recognized by The National Law Journal as "Lawyer of the Year". NLJ wrote,

"Fine and the team he has assembled in the past eight years emerged as beacons of nonpartisanship and independence as they thoroughly investigated problem after problem and revealed where the department went off track. Fine's office also recommended steps to department leaders and Congress for restoring the department's position as the nation's pre-eminent law enforcement agency."

The NY Times quoted Mr. Fine talking about his job, “You have to recognize that you’re not going to be popular.”

The FCC's Inspector General has also be in the news, but in a different context: The 12/08 House Energy and Commerce Committee report on FCC reported that there were several complaints about him pending before the Integrity Committee of the President's Council on Integrity and Efficiency. These complaints are reported to deal with possible violations of

"federal procurement regulations while hiring outside contractors and overseeing contracts, demonstrated incompetence in overseeing audits, and creat(ing) a hostile work environment in his own office."

The House Committee report added that

"several FCC employees ... described the Inspector General as actively supporting the Chairman and other FCC officials, while discouraging independent investigations by his own office when the outcome might be critical of FCC management."

FCC's IG describes his office's job as follows,

"The Office of the Inspector General (“OIG”) is dedicated to ensuring compliance with the requirements of the Inspectors’ General Act and assisting the Chairman in his continuing efforts to improve the effectiveness and efficiency of the Federal Communications Commission."

Under the Inspector General Act, FCC's IG's responsibilities are exactly the same as DOJ's (with the minor exception that under § 8E the DOJ IG is under special restriction on investigations of certain very sensitive criminal and intelligence matters, so FCC's IG actually has more independence.) The FCC's IG's role with respect to the Chairman is governed by § 8G(d)

"Each Inspector General shall report to and be under the general supervision of the head of the designated Federal entity (e.g. FCC), but shall not report to, or be subject to supervision by, any other officer or employee of such designated Federal entity. The head of the designated Federal entity shall not prevent or prohibit the Inspector General from initiating, carrying out, or completing any audit or investigation, or from issuing any subpoena during the course of any audit or investigation."

But the DOJ IG is also under the "general supervision" of the Attorney General per § 3(a). The duties and responsibilities of both IGs under § 4 are exactly the same.

A review of the FCC's IG's semiannual reports shows a continuing lack of any criticism of FCC management except in the most minor matters. (For example in the most recent report, they mildly criticized Media Bureau's handling of new non-commercial educational (NCE) FM stations and also commented on a MB database system:

"The OIG concluded that, while the Media Bureau articulated legitimate reasons for proceeding as it did, this office will make recommendations to help devise a system that will better address the needs of the regulated community."
...
"During this period, the OIG initiated an inquiry into allegations that the Media Bureau’s Consolidated Database System (“CDBS”) was flawed. CDBS is the licensing application software system that the Media Bureau has made available for public filings since 2000. Because remedial efforts regarding this system were already underway,OIG noted the alleged flaws to the Office of Managing Director and may test the new system once it is publicly available."

Why had it taken 8 years to take corrective action in the database system? What was the root cause of the problem? The world wonders.

The current FCC IG and all his predecessors had been long time career FCC employees with no previous investigative experience before becoming IG. This is probably the root cause of the long term ineffectiveness of the FCC IG office with respect to internal operation of the FCC. Reliability and unwillingness to "shake the boat" may have been a key factor in selecting these individuals. The House report suggests that the FCC IG become a presidential appointment subject to Senate confirmation. However, that would be a time consuming legislative change and there are already too many such appointments in the federal government.

A more pragmatic approach is to select a new IG from career IG staffers in larger agencies with proven independence, judgment, and investigative abilities. I am sure that some of Mr. Fine's senior staffers, for example, would jump at the opportunity of being the IG of an independent agency like FCC. I hope the new Chairman and the oversight committees give this serious consideration.

Does FCC need a better IG only to ferret out internal wrongdoing? No. The presence of normal checks and balances, like having an effective IG, will discourage some of the bizarre things that have been happening in recent years and make the FCC more self-correcting and credible. Also as the NY Times article on Mr. Fine points out, a credible IG would make his findings of no improprieties credible also.

Other agencies' IGs in action:

• HHS: "The inspector general of the Department of Health and Human Services reviewed all 118 applications for marketing drugs and medical devices that were approved by the F.D.A. in fiscal year 2007. It found appalling failures to collect information and act on it."
• Interior: " The inspector general of the Interior Department has found that agency officials often interfered with scientific work in order to limit protections for species at risk of becoming extinct, reviving attention to years of disputes over the Bush administration’s science policies."
• USDA: "The Agriculture Department's new testing plan for mad cow disease, which calls for testing up to 220,000 cows by the end of 2005, is seriously flawed and will result in ''questionable estimates'' of the prevalence of the disease in the nation's cattle, according to a draft report by the department's inspector general."
• EPA: "In a rebuke of the Bush administration, the inspector general of the Environmental Protection Agency said on Thursday that legal actions against major polluters had stalled because of the agency's decision to revise rules governing emissions at older coal-fired power plants."
• DoD: "The report by the Pentagon inspector general found the employee, David Tenenbaum, an Orthodox Jew, was targeted by counterintelligence agents because of his religion. The conclusion vindicated Tenenbaum, who was never charged with a crime and has spent a decade trying to clear his name. "

Note: Comments here on the FCC IG's past performance relate to his role with respect to internal FCC operations. A large part of the FCC IG position deals with misuse of Universal Service Fund money - a different issue about which no representations are made.

New FCC Reform Website

Yesterday was the FCC Reform conference sponsored by The University of Colorado's Silicon Flatirons program and Public Knowledge. Much of the conference focused on the keynote paper by Phil Weiser, "FCC Reform and the Future of Telecommunications Policy". A new website on FCC reform has the paper, along with several responses including mine. The site allows you to make your own suggestions! (Perhaps taking a clue from the transition website.)

(Wikipedia photo)
Surf on over!

Here is a summary by Gigi Sohn of Public Knowledge of the ideas suggested for the new FCC by the conference speakers:

• make policy decisions based on objective data and facts, not ideology and industry-purchased data;

• engage in more strategic planning and be forthright about its policy goals;

• restore procedural fairness, including, but not limited to stopping abuses of the ex parte rules, making sure Notices of Proposed Rulemaking actually propose rules, and issuing texts of decisions on the day the item is voted upon;

• be more transparent in two ways: first, it must give the public more information about what decisions it is making, how it is making them and why; and it must allow for the public to have more meaningful input into the policymaking process. The former might necessitate revision of the Government in Sunshine Act, which requires public notice and a public meeting anytime more than two Commissioners meet at one time.

• be reorganized into functions, not into technological silos;

• be staffed with people whose mission is to promote the public interest, not to get a high paying job with industry;

• be staffed with a diversity of expertise (e.g., more economists, technologists and real business people) and cultural experiences);

• rely more on adjudication in enforcement matters where there are facts in dispute;

• better balance the power between the Chair and the Commissioners;

• develop and empower staff in a way that restores morale and makes them feel like vital players in the operation of the agency;

• lead, listen and learn, particularly through input by the academic community;

• ensure that every staff member has a clear role that promotes the agency’s policy goals; and

• promote innovation.