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Report to the Chairman, Subcommittee on Telecommunications and the 
Internet, Committee on Energy and Commerce, House of Representatives: 

United States Government Accountability Office: 

GAO: 

September 2007: 

Telecommunications: 

FCC Should Take Steps to Ensure Equal Access to Rulemaking Information: 

Telecommunications: 

GAO-07-1046: 

GAO Highlights: 

Highlights of GAO-07-1046, a report to the Chairman, Subcommittee on 
Telecommunications and the Internet, Committee on Energy and Commerce, 
House of Representatives. 

Why GAO Did This Study: 

The Federal Communications Commission (FCC) is charged with regulating 
interstate and international communications by radio, television, wire, 
satellite, and cable. The Telecommunications Act of 1996 established 
that FCC should promote competition and reduce regulation to secure 
lower prices and higher-quality services for American consumers. FCC 
implements its policy aims through rulemaking, whereby the agency 
notifies the public of a proposed rule and provides an opportunity for 
the public to participate in the rule’s development. These rulemakings 
are documented within a public docket that contains the rulemaking 
record. 

In response to a congressional request on FCC rulemaking, GAO (1) 
described FCC’s rulemaking process; (2) determined, for specific 
rulemakings, the extent to which FCC followed its process; and (3) 
identified factors that contributed to some dockets and rulemakings 
remaining open. GAO reviewed recent FCC rules, interviewed FCC 
officials and stakeholders, and conducted case studies of rulemakings. 

What GAO Found: 

FCC’s rulemaking process includes multiple steps as outlined by law, 
with several opportunities for public participation. FCC generally 
begins the process by releasing a Notice of Proposed Rulemaking and 
establishing a docket to gather information submitted by the public or 
developed within FCC to support the proposed rule. Outside parties may 
meet with FCC officials but must file a disclosure in the docket, 
called an ex parte filing, that includes any new data or arguments 
presented at the meeting. FCC analyzes information in the docket and 
drafts a final rule for the commission to adopt. The FCC chairman 
decides which rules the commission will consider and whether to adopt 
them by vote at a public meeting or by circulating them to each 
commissioner for approval. Stakeholders unsatisfied with a rule may 
file a petition for reconsideration with the commission or petition for 
review in federal court. 

FCC generally followed the rulemaking process in the four case studies 
of completed rulemakings that GAO reviewed, but several stakeholders 
had access to nonpublic information. Specifically, each of the four 
rulemakings included steps as required by law and opportunities for 
public participation. Within the case studies, most ex parte filings 
complied with FCC rules. However, in the case studies and in 
discussions with other stakeholders that regularly participate in FCC 
rulemakings, multiple stakeholders generally knew when the commission 
scheduled votes on proposed rules well before FCC notified the public. 
FCC rules prohibit disclosing this information outside of FCC. Other 
stakeholders said that they cannot learn when rules are scheduled for a 
vote until FCC releases the public meeting agenda, at which time FCC 
rules prohibit stakeholders from lobbying FCC. As a result, 
stakeholders with advance information about which rules are scheduled 
for a vote would know when it is most effective to lobby FCC, while 
stakeholders without this information would not. 

The complexity and number of rulemakings within a docket and the 
priority the commission places on a rulemaking contribute to dockets 
and rulemakings remaining open. The commission determines when to open 
and close a docket and which rulemakings are a priority; therefore, the 
commission determines how a docket and rulemaking progress. Dockets and 
the rulemakings within them may remain open because the dockets are 
broad and include multiple rulemakings, or because the commission has 
not yet voted to close the dockets even though they include completed 
rules. Within dockets, some rulemakings may remain open because they 
involve complex, technical issues or because competing priorities can 
force FCC officials to work on one rulemaking as opposed to another. 
Stakeholders generally said they are not concerned about the number of 
open dockets. 

What GAO Recommends: 

To ensure transparency in the rulemaking process, GAO recommends that 
the FCC Chairman take steps to ensure equal access to rulemaking 
information. FCC took no position on GAO’s recommendation. 

[hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-07-1046]. 

To view the full product, including the scope and methodology, click on 
the link above. For more information, contact Mark Goldstein at (202) 
512-2834 or goldsteinm@gao.gov. 

[End of section] 

Contents: 

Letter: 

Results in Brief: 

Background: 

FCC's Rulemaking Process Includes Multiple Steps with Opportunities for 
Public Participation: 

FCC Generally Followed the Rulemaking Process for Selected Rules, but 
Unequal Access to Nonpublic Information May Give Some Stakeholders an 
Advantage: 

Several Factors May Contribute to Dockets and Rulemakings Remaining 
Open: 

Conclusions: 

Recommendation for Executive Action: 

Agency Comments: 

Appendix I: Scope and Methodology: 

Appendix II: GAO Contact and Staff Acknowledgments: 

Tables: 

Table 1: Overview of Completed FCC Rules Selected as Case Studies: 

Table 2: Overview of Open FCC Dockets Selected for Case Study: 

Table 3: Industry and Public Interest Groups Interviewed in Our Study: 

Figures: 

Figure 1: Examples of Communications Services Affected by FCC 
Rulemaking: 

Figure 2: FCC Organization: 

Abbreviations: 

APA: Administrative Procedure Act of 1946: 

DTS: distributed transmission systems: 

ECFS: Electronic Comment Filing System: 

FCC: Federal Communications Commission: 

ILEC: Incumbent Local Exchange Carrier: 

NPRM: Notice of Proposed Rulemaking: 

R&O: report and order: 

United States Government Accountability Office: 

Washington, DC 20548: 

September 6, 2007: 

The Honorable Edward J. Markey: 
Chairman: 
Subcommittee on Telecommunications and the Internet: 
Committee on Energy: 
Commerce House of Representatives: 

Dear Mr. Chairman: 

Federal Communications Commission (FCC) regulations potentially affect 
the daily lives of every American, from rules governing who may own the 
morning newspaper to the networks connecting the last long-distance 
telephone call at night. These regulations have a direct influence on 
how consumers and businesses access telecommunications and media 
services by, for example, providing the regulatory framework for the 
digital broadcasting transition, facilitating the deployment of 
broadband services, and fostering competition to achieve a wider range 
of communications services. FCC-regulated industries provide Americans 
with daily access to local and long-distance communications services, 
mobile telephone services, broadband Internet services, and free over- 
the-air radio and television broadcasts. FCC also serves other 
important public interests, working to ensure that Americans have 
access to 911 services, that emergency responders can communicate 
effectively to provide for public safety, and that underserved 
(typically, rural or low-income) areas have access to reasonably priced 
communications services. 

The Communications Act of 1934 (Communications Act) established FCC as 
an independent regulatory agency responsible to Congress. The 
Communications Act, which the Telecommunications Act of 1996 
(Telecommunications Act) substantially revised, tasks FCC with 
regulating methods of electronic communication to foster a competitive 
environment, with an emphasis on the public interest. To implement the 
intent of these and other laws, FCC makes regulations (or rules) 
through a process that is largely defined in law. This process requires 
FCC to provide the public with notice of its proposed and final rules 
and with an opportunity to comment as the rules are developed. All 
comments and information gathered by FCC constitute the public record 
to support rulemakings and are electronically maintained in a docket. A 
docket may address a number of issues, and, as a result, there may be 
several rulemakings within one docket. 

Seeking information about FCC's efforts to maintain transparency and 
opportunities for public participation, you asked us to review FCC's 
rulemaking process. Accordingly, this report (1) describes FCC's 
rulemaking process; (2) determines, for specific rulemakings, the 
extent to which FCC followed its process; and (3) identifies factors 
that contributed to some dockets and rulemakings remaining open. 

To describe FCC's rulemaking process, we reviewed FCC documents and 
applicable laws and interviewed FCC officials and representatives from 
industry and public interest organizations that have participated in 
FCC rulemaking proceedings. These proceedings are known as "informal" 
or "notice and comment" rulemakings. We also (1) gathered and analyzed 
available data on FCC rulemaking orders published in the Federal 
Register over the 5-year period from 2002 through 2006--we refer to 
these rules throughout this report as "recent rules"--and (2) reviewed 
selected U.S. Courts of Appeals opinions that addressed challenges to 
these orders.[Footnote 1] To determine the extent to which FCC followed 
its process for specific rules, we selected four of FCC's rules 
published between 2002 and 2006 as case studies.[Footnote 2] Each of 
these rules originated in a different bureau--Media, Wireless 
Telecommunications, or Wireline Competition--or in FCC's Office of 
Engineering and Technology. These bureaus and office had the most 
rulemakings during the period of our analysis. We also based our 
selection of rules on why the rules were initiated, how long they took 
to complete, and whether they were challenged in court. To help 
identify factors that may contribute to dockets and rulemakings 
remaining open, we selected four rulemakings for case studies from a 
list of ongoing rulemakings that FCC publishes in the Federal Register 
every 6 months. We selected these cases from the three bureaus and one 
office that conducted the most rulemakings during the 5-year period 
from 2002 through 2006.[Footnote 3] We also selected these rules to 
include rules that were initiated in different ways and had been open 
for different lengths of time. For all case studies, we reviewed and 
analyzed the rulemaking records and interviewed FCC officials and 
stakeholders involved in the rulemakings. The findings in our case 
studies cannot be generalized to all FCC rulemakings. We determined 
that these data were sufficiently reliable for our review. We conducted 
our review from October 2006 through July 2007 in accordance with 
generally accepted government auditing standards. A detailed discussion 
of our scope and methodology appears in appendix I. 

Results in Brief: 

FCC's rulemaking process includes multiple steps as outlined by the 
Administrative Procedure Act of 1946 (APA) and other laws, with several 
opportunities for public participation. FCC initiates rulemaking in 
response to a statute, a petition for rulemaking, or its own 
initiative. Any person may petition FCC to amend rules or create new 
rules. FCC generally begins a rulemaking by releasing a Notice of 
Proposed Rulemaking (NPRM), and then gathers and analyzes information 
submitted by public participants or developed within FCC to support a 
rule, leading to a final rule for the commission to adopt. The public 
may participate in the development of the rulemaking record by filing 
comments on FCC's notices, filing replies to other parties' comments, 
and meeting with FCC officials. Outside parties that discuss 
rulemakings with FCC must file a disclosure in the public record, 
called an ex parte filing, including any new data or arguments 
presented during the meeting. The FCC chairman controls the 
commission's agenda and decides when and how to adopt rules. The 
commission may adopt final rules either by vote at a monthly public 
meeting or by circulating the proposed final rules to each commissioner 
for approval. Stakeholders unsatisfied with an FCC rule may file a 
petition for reconsideration with the commission or petition for review 
in the U.S. Courts of Appeals. Twenty-five of the 240 substantive FCC 
rules published in the Federal Register from 2002 to 2006 were 
challenged in court and had published court opinions; 19 of these 
challenges were denied; and 6 rules, either wholly or in part, were 
determined to be unlawful or sent back to FCC for further 
consideration. In addition, according to FCC data, challenges to 12 of 
the 240 recent rules are pending in the U.S. Courts of Appeals. 

FCC generally followed its rulemaking process in the four case studies 
of completed rulemakings we reviewed, but we found that some 
stakeholders had access to nonpublic information that could give them 
an advantage in the rulemaking process. Specifically, each of the four 
rulemakings included items that are required by law and FCC regulations 
and provided opportunities for public participation. Within our case 
studies, we found that most--but not all--ex parte filings complied 
with FCC's ex parte rules, and there was no evidence that FCC violated 
its rule prohibiting outside contact about items scheduled for a vote 
after the agenda for a public meeting was released. However, we also 
were told by 9 of 12 stakeholders--both those involved with our case 
studies and stakeholders who regularly participated in FCC rulemakings-
-that they knew when proposed rules were scheduled for an upcoming vote 
well before FCC released the agenda to the public because they hear 
this information from FCC bureau staff and commissioner staff. This 
advance information is not supposed to be disclosed outside of FCC. 
Three stakeholders with whom we spoke told us that they cannot learn 
when rules are scheduled for a vote until the agenda is publicly 
available. Once the agenda is public, FCC rules generally prohibit 
stakeholders from lobbying FCC. As a result, stakeholders with advance 
information about which rules are scheduled for a vote would know when 
it may be most effective to present their arguments to FCC, while 
stakeholders without access to this information may not. We are 
recommending that FCC take steps to ensure equal access to information 
by making sure that nonpublic information is safeguarded from 
disclosure, and to determine what actions FCC should take if a 
prohibited disclosure is made, so that all stakeholders have the same 
information to inform their participation in the rulemaking process. 
FCC took no position on our recommendation. 

The complexity and number of rulemakings within a docket and the 
priority the commission places on a rulemaking may all contribute to 
dockets and rulemakings remaining open. FCC tracks open dockets, which 
may contain one or more rulemakings. FCC has 133 open dockets, as 
reported in the Federal Register in December 2006. The commission 
determines when to open and close a docket and which rulemakings are a 
priority; therefore, the commission determines how a docket and 
rulemaking progress. Through our analysis of the four open dockets we 
selected as case studies, we found several factors that may contribute 
to these dockets, and the rulemakings within these dockets, remaining 
open. Specifically, some dockets may remain open because they are broad 
dockets intended to include multiple rulemakings or because the 
commission has not voted to close the docket, even though the docket 
includes only completed rulemakings that have addressed all of the 
issues in the docket. Within dockets, some rulemakings may remain open 
because they involve complex, technical issues, such as worldwide 
coordination of satellite systems, or because competing priorities can 
force FCC officials to work on one rulemaking as opposed to another. 
Stakeholders generally told us that they are not concerned about the 
number of open dockets and are satisfied with the rulemaking process. 

Background: 

Purpose and Organization of FCC: 

Established by the Communications Act, FCC is charged with regulating 
interstate and international communications by radio, television, wire, 
satellite, and cable.[Footnote 4] The Telecommunications Act, which 
substantially revised the Communications Act, established that FCC 
should promote competition and reduce regulation to secure lower prices 
and higher-quality services for American telecommunications consumers 
and should encourage the rapid deployment of new telecommunications 
technologies.[Footnote 5] The law grants FCC broad authority to execute 
its functions. FCC implements its policy initiatives through a process 
known as rulemaking, which is the agency process for implementing, 
interpreting, or prescribing law or policy.[Footnote 6] Figure 1 shows 
some common communications services affected by FCC rulemaking. 

Figure 1: Examples of Communications Services Affected by FCC 
Rulemaking: 

This figure is an illustration of communications affected by FCC 
rulemaking, such as Orbital satellite transmission, low power 
broadcasting, tv/radio broadcasting and wireless transmission, 
earth station satellite transmissions, mobile telephone, etc. 

[See PDF for image] 

Source: GAO. 

[End of figure] 

FCC is an independent regulatory agency that must follow many, but not 
all, federal laws related to rulemaking.[Footnote 7] Under the 
Communications Act, the commission is composed of five commissioners 
appointed by the President with Senate confirmation. The President 
designates one of the commissioners as chairman.[Footnote 8] The 
chairman derives authority from provisions in the act and FCC's rules, 
which define the chairman's duties to include (1) presiding at all 
meetings and sessions of the commission, (2) representing the 
commission in all matters relating to legislation and before other 
government offices, and (3) generally coordinating and organizing the 
work of the commission. The commissioners delegate many of FCC's day- 
to-day responsibilities to the agency's 7 bureaus and 10 offices (see 
fig. 2). While this report focuses on the rulemaking process, FCC also 
makes decisions on many other issues, such as enforcement actions and 
issuing licenses for communications devices. Between 2002 and 2006, FCC 
data show that the agency made 1,835 decisions by FCC commissioners and 
17,406 decisions within FCC bureaus and offices. 

Figure 2: FCC Organization: 

This figure is a tree chart. It illustrates the hierarchy of the FCC 
organization. 

[See PDF for image] 

Source: FCC. 

[End of figure] 

Laws Governing FCC Rulemaking: 

Administrative Procedure Act of 1946: 

APA is the principal law governing how agencies make rules.[Footnote 9] 
The law prescribes uniform standards for rulemaking, requires agencies 
to inform the public about their rules, and provides opportunities for 
public participation in the rulemaking process. Most federal rules are 
promulgated using the APA-established informal rulemaking process, also 
known as "notice and comment" rulemaking.[Footnote 10] APA outlines a 
multistep process to initiate and develop rules and includes provisions 
for parties to challenge them, which FCC must follow. Many steps 
require agencies to provide public notice of proposed or final actions 
as well as provide a period for interested parties to comment on the 
notices--hence the "notice and comment" label.[Footnote 11] APA does 
not generally address time frames for informal rulemaking actions, 
limits on contacts between agency officials and stakeholders, or 
requirements for "closing" dockets. 

Communications Act of 1934: 

The Communications Act outlines procedures for addressing petitions for 
reconsideration by FCC and appeals to federal court for FCC 
rules.[Footnote 12] The act states that a petition for reconsideration 
may be filed within 30 days of the date of public notice. The U.S. 
Courts of Appeals have jurisdiction to review all final FCC 
rules.[Footnote 13] 

Other Laws: 

Other laws and orders also apply to FCC rulemakings, including but not 
limited to the following: 

* Regulatory Flexibility Act.[Footnote 14] This act requires federal 
agencies to assess the impact of their forthcoming regulations on small 
businesses, small governmental jurisdictions, and certain small not- 
for-profit organizations. The act also requires rulemaking agencies to 
publish a "regulatory flexibility agenda" in the Federal Register each 
October and April, listing regulations that the agency expects to 
propose or promote and that are likely to have a significant economic 
impact on a substantial number of small entities.[Footnote 15] This 
requirement, as well as a similar requirement in Executive Order 12866, 
is generally met with entries in the Unified Agenda of Federal 
Regulatory and Deregulatory Actions. The Unified Agenda is published 
twice a year in the Federal Register and provides uniform reporting of 
data on regulatory activities under development throughout the federal 
government. 

* Congressional Review Act.[Footnote 16] This act requires agencies to 
submit final rules to Congress and GAO before they can take effect. We 
compile and make available on our Web site basic information about the 
rules we receive through an on-line database, including the rule's 
priority, listed as either "significant/substantive" or "routine/info/ 
other" as indicated by the agency's submission.[Footnote 17] According 
to the GAO database, 240 significant/substantive FCC rules were 
published in the Federal Register between January 2002 and December 
2006.[Footnote 18] 

* The Government in the Sunshine Act of 1976 (Sunshine Act).[Footnote 
19] This act requires federal agencies headed by a collegial body 
composed of two or more individual members, such as FCC, to hold 
regular public meetings with sufficient public notice that the meeting 
will take place.[Footnote 20] The agency must release the meeting's 
agenda, known as the Sunshine Agenda, no later than 1 week before the 
meeting. In addition, the act prohibits more than two of the five FCC 
commissioners from deliberating with one another to conduct agency 
business outside the context of the public meeting. 

* E-Government Act of 2002.[Footnote 21] This act requires agencies, to 
the extent practicable, to accept public comments on proposed rules by 
electronic means and to ensure that a publicly accessible Web site 
contains electronic dockets for their proposed rules. 

* Paperwork Reduction Act.[Footnote 22] This act seeks to minimize the 
paperwork burden imposed by government on the public and requires an 
agency to seek clearance from the Office of Management and Budget if it 
proposes to collect information from 10 or more people on a particular 
matter. For example, this requirement would apply to an agency's 
proposed rule that might seek information from the public. 

Ex parte and Nonpublic Information Rules: 

APA places no restriction on "off-the record" or "ex parte" 
communication between agency decision makers and other persons during 
informal rulemaking.[Footnote 23] However, FCC has rules about such 
contacts 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. The rules also give 
FCC the flexibility to obtain the information it needs for making 
decisions. Under its ex parte rules, FCC generally classifies its 
rulemaking proceedings as "permit-but-disclose," meaning that outside 
parties are allowed to present information to FCC either in writing or 
in person, but are required to disclose such communications in the 
public record.[Footnote 24] The rules require a person making an oral 
ex parte presentation that includes data or arguments not already 
reflected in that person's other filings to submit a disclosure to the 
record summarizing the new data and arguments.[Footnote 25] The rules 
state that the summary should generally be "more than a one or two 
sentence description" and not just a listing of the subjects 
discussed.[Footnote 26] When there is ambiguity about whether data or 
arguments are already in the public record, FCC encourages parties to 
briefly summarize the matters discussed at a meeting. FCC's ex parte 
rules also establish the Sunshine Period, which begins when FCC 
releases the Sunshine Agenda of items scheduled for a vote at a public 
meeting and ends when those items are released to the public after the 
vote or are removed from the agenda before the meeting. During the 
Sunshine Period, the public may not contact the agency to discuss any 
matters that appear on the Sunshine Agenda unless there is a specific 
exemption.[Footnote 27] The Sunshine Period does not apply to items 
that are voted on by circulation. 

FCC rules state that staff must not directly or indirectly disclose 
nonpublic information outside the agency without authorization by the 
chairman.[Footnote 28] Nonpublic information includes the content of 
public meeting agenda items, except for as required to comply with the 
Sunshine Act, and actions or decisions made by the commission at closed 
meetings or by circulation prior to the public release of such 
information.[Footnote 29] 

FCC's Rulemaking Process Includes Multiple Steps with Opportunities for 
Public Participation: 

FCC's rulemaking process includes multiple steps as outlined by law 
with opportunities for the public to participate during each step. FCC 
initiates rulemaking in response to statutes, petitions for rulemaking, 
or its own initiative. Any person may petition FCC to amend or create 
new rules. After FCC releases an NPRM, it develops and analyzes the 
public record to support a rule, leading to a final rule for the 
commission to adopt. Anyone may participate in the development of the 
public record through electronic filings and meetings with FCC 
officials. The FCC chairman has the flexibility to decide what proposed 
and final rules the commission will consider for adoption. At the 
chairman's discretion, the commission may adopt final rules either at a 
monthly public meeting or by circulating written items to each 
commissioner. Stakeholders unsatisfied with an FCC rule may file a 
petition for reconsideration with the commission or seek federal 
judicial review. 

Initiation: 

FCC initiates rulemaking in response to statutes, petitions for 
rulemaking, or its own initiative.[Footnote 30] FCC may propose rules 
under its broad regulatory authority granted by the Communications Act 
or in response to a specific statutory requirement. Congress may also 
impose a time frame or conditions for rulemaking.[Footnote 31] FCC may 
also propose rules in response to petitions for rulemaking filed by 
outside parties. FCC puts petitions for rulemaking out for public 
comment and, after reviewing any comments, may initiate rulemaking on 
the issue or deny the petition. FCC does not have to respond to a 
rulemaking petition within a set time frame, so a petition for 
rulemaking can remain open indefinitely. 

When initiating a new rulemaking, FCC has the flexibility to organize 
the public record in the manner that it deems most appropriate. FCC may 
establish a new docket to house the rule's supporting documents or 
initiate the proceeding in an existing docket, particularly if the 
filings already in that docket would be germane to the new proceeding. 
As we have previously discussed, there were 240 significant/substantive 
rules in our database published in the Federal Register between 2002 
and 2006. Among these recent rules, 47 were initiated in response to a 
petition for rulemaking, 172 were initiated on FCC's own authority or 
in response to a specific legal requirement, and 21 were initiated for 
a combination of these reasons.[Footnote 32] 

Rule Development: 

The commission's release of an NPRM signals the beginning of a 
rulemaking; the NPRM may or may not contain the text of the proposed 
new or revised rules. The NPRM provides an opportunity for comment on 
the proposal and indicates the length of the comment and reply comment 
periods, which stakeholders can use to submit comments and reply to 
other comments. These periods begin once the NPRM is published in the 
Federal Register. The NPRM also indicates the ex parte rules for 
contact under the rulemaking, which are generally "permit-but- 
disclose." After FCC releases an NPRM, it begins developing and 
analyzing the public record to support a rule, leading to proposed 
final rules for the commission's adoption. 

FCC provides multiple avenues for public participation during rule 
development, including opportunities to submit filings electronically 
and to meet with FCC officials. Outside parties provide FCC with 
written comments, reply comments, and other types of data to support 
their positions on a rulemaking. Outside parties are permitted to 
discuss rulemakings with FCC officials, including commissioners, at any 
time except during the Sunshine Period. FCC officials said they make 
every effort to meet with any outside party that requests a meeting. 
For these meetings, FCC rules require the outside party to submit an ex 
parte disclosure for each meeting, indicating what new data or 
arguments were presented during the meeting. This disclosure, like any 
other filing in the docket, becomes part of the public record available 
electronically to the public through FCC's Electronic Comment Filing 
System (ECFS), a searchable Web-based depository of rulemaking notices 
and filings. Each document filed as part of the public record is 
associated with one or more dockets. FCC provides guidance to the 
public on its Web site for how to use ECFS and file comments. 

FCC officials said that they do not usually conduct their own studies 
in support of rulemaking issues.[Footnote 33] Instead, they rely mostly 
on external stakeholders to submit this information into the public 
record, and FCC staff analyze the information. In addition, 
stakeholders can critique each other's data that are in the public 
record. On more technical issues, FCC's Office of Engineering and 
Technology may conduct analyses for the public record, and information 
FCC routinely collects, such as data on broadband use, may be placed in 
a docket if it is relevant to a rulemaking. Also, while FCC officials 
said that they do not typically identify and reach out to parties to 
participate in rulemakings, they may contact a particular stakeholder 
and request additional information for the public record or use 
publicly available data, such as data from the U.S. Census, to augment 
the public record. For example, officials from the Wireline Competition 
Bureau told us they contact rulemaking participants if they need an 
additional level of detail in the public record to adequately support a 
rule. In some cases, FCC also holds field hearings, such as the current 
series of hearings on media ownership, to solicit comment for the 
public record on specific rulemaking issues. 

Using information contained in the public record as support, bureau 
staff draft proposed final rules for the commission to vote on. FCC 
officials must consider all timely filed comments and reply comments 
when developing a rule and have the flexibility to also consider 
information from ex parte filings. FCC officials said that they 
consider all types of comments filed in ECFS to support rulemakings; 
however, they said that specific comments on contentious rulemaking 
issues are more helpful than general comments that express support or 
opposition to a rule. FCC officials told us that they may also consider 
comments from stakeholders with a vested interest in an issue more 
seriously than those from other parties. FCC's Office of General 
Counsel and Office of Managing Director provide rulemaking guidance to 
bureaus and review rules to determine whether the bureaus followed the 
steps required by various rulemaking laws. FCC uses an electronic 
system, known as the Electronic Management Tracking System to track 
rulemakings and manage associated staff workload. 

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. According to FCC officials, while it is not 
possible to vote on every rulemaking at a public meeting, items that 
are controversial or have a broad impact on the industry are more 
likely to be voted on during a public meeting. Of the 240 recent rules, 
101 were adopted on the day the commission held a public meeting, 
indicating they may have been voted on at the meeting, while the other 
139 appear to have been adopted by circulation.[Footnote 34] 

Three weeks before the commission considers an item at a public 
meeting, the chairman's office releases to FCC officials the draft 
version of the proposed rules the commission expects to vote on at the 
public meeting. These drafts are internal, nonpublic documents. FCC 
officials told us they do not release information to the public about 
what items the commission is planning to vote on at public meetings or 
items being circulated by the commission for adoption. FCC's written 
rulemaking guidance states that such information is nonpublic and may 
not be disclosed in any format, including via paper, electronic, or 
oral means, unless the chairman authorizes its disclosure. 

For items to be voted on during a public meeting, the Office of 
Managing Director releases the Sunshine Agenda no later than 1 week 
before the meeting. The agenda includes a list of items the commission 
intends to vote on at the meeting and notifies the public that it may 
not contact the commission about those items during the week before the 
vote, the period known as the Sunshine Period. Items voted on through 
circulation do not usually appear on the Sunshine Agenda and, 
therefore, are not subject to the contact prohibition. According to FCC 
officials, at the chairman's discretion, the commission could adopt 
items included on the Sunshine Agenda by circulation in advance of the 
public meeting. No more than two commissioners may meet to deliberate 
on rulemaking matters outside of an official public meeting, according 
to a requirement of the Sunshine Act. Some FCC commissioners have said 
that this requirement should be changed because it creates logistical 
complications and transfers the daily discussion of rules down from the 
commissioners to their staff. We did not evaluate these 
claims.[Footnote 35] 

Once the commission adopts a rule, the originating bureau often makes 
technical corrections to it and may also make substantive changes. Each 
commissioner is given the final rule before it is released and can 
decide if the rule has undergone substantive changes. Any substantive 
changes are approved by the commissioners, and the rule goes through a 
final internal review before FCC releases the rule and submits it to 
the Federal Register for publication.[Footnote 36] FCC may adopt and 
release some rules on the same day, while other rules may require 
months of revision because the commission may vote on a particular 
issue or policy position and not the precise wording of the rule. When 
this occurs, the final wording of the rule is approved by all 
commissioners before the order is released. 

It is difficult to determine time frames for FCC rules because FCC 
tracks which dockets are open, and many rules are in dockets that have 
been open for a long time. These dockets may include other rules or may 
have remaining issues to address. For example, one docket that has been 
open since 1980 includes several NPRMs and rules. A recent rule in this 
docket, issued in 2006, was attached to a Further Notice of Proposed 
Rulemaking, and was published in the Federal Register as an "interim 
rule," indicating the issue is ongoing even though FCC has released 
several rules in the docket. Documents that are both an NPRM and a rule 
can be difficult to find in FCC's database because the database allows 
a document to have only one document-type label, even if the document 
serves multiple purposes. As a result, if a document is filed as a rule 
and it also includes an NPRM, when searching for NPRMs this document 
would not be found. 

FCC may also develop rules on the basis of comments solicited from 
notices other than a docket's first NPRM. For example, a 2005 rule from 
a docket that began in 1997 was supported by an analysis of comments 
solicited in 2000 and 2003. FCC officials told us that some dockets-- 
particularly those that address complex issues--contain multiple 
rulemakings. Specifically, a docket may contain different NPRMs and 
rules that are issued at different times. Therefore, a rule may be made 
in a docket to address a long-standing issue, but relate specifically 
to an NPRM that was not released until years after the docket was 
established.[Footnote 37] Consequently, some rules could be considered 
to have shorter time frames because they address issues primarily 
raised in subsequent NPRMs released in the same docket. FCC officials 
told us that they do not track the time it takes to complete a 
rulemaking and generally are not required by statute to complete rules 
within certain time frames.[Footnote 38] The time it takes to complete 
rules may vary because of the unique nature of each rulemaking. Certain 
factors, such as the technical complexity of the issue being address 
and the priority of the rulemaking in comparison to other issues, can 
also affect rulemaking time frames. We also reviewed rulemaking at the 
Environmental Protection Agency and Federal Trade Commission, but we 
could not compare their time frames with FCC's because of differences 
in their rulemaking processes. 

Reconsideration and Appeal: 

Stakeholders unsatisfied with an FCC rule may file a petition for 
reconsideration with the commission or petition for federal judicial 
review. Stakeholders are allowed 30 days after a rule is published in 
the Federal Register to file a petition for reconsideration, although 
FCC usually has no required time frame for acting on such a 
petition.[Footnote 39] FCC officials said they give priority 
consideration to petitions identifying problems with the rules they 
should correct quickly. 

Parties may also petition the U.S. Courts of Appeals for review of an 
FCC rule, typically after the commission has already considered the 
issue, such as after FCC has denied a party's reconsideration petition. 
An appeals court may uphold, vacate (hold unlawful or set aside), or 
remand an FCC rule (send it back to the agency for further 
consideration) entirely or in part, which may lead the commission to 
take additional action on the rulemaking, such as issuing a new version 
of the rule to address the court's concerns. Twenty-five of the 240 
recent rules had published opinions from the U.S. Courts of Appeals 
resulting from challenges. According to these opinions, the court 
denied or dismissed the challenges to 19 rules, and 6 rules, either 
wholly or in part, were determined to be unlawful or sent back to FCC 
for further consideration.[Footnote 40] In addition, according to FCC 
data, challenges to 12 of the 240 recent rules were pending in the U.S. 
Courts of Appeals as of June 2007. 

FCC Generally Followed the Rulemaking Process for Selected Rules, but 
Unequal Access to Nonpublic Information May Give Some Stakeholders an 
Advantage: 

FCC generally followed the rulemaking process in the four case studies 
we reviewed. Specifically, each rulemaking included an NPRM and a 
notice and comment period. In reviewing the docket for each case study, 
we found that most--but not all--ex parte filings complied with the ex 
parte rules, and there was no evidence that FCC violated its Sunshine 
Period rule. However, we found that multiple stakeholders--both those 
involved in our case studies and other stakeholders who often file 
comments in FCC rulemakings--often knew when proposed rules were 
scheduled for a vote well before FCC released the agenda to the public 
and before the Sunshine Period began. This advance information is not 
supposed to be released outside of FCC. Other stakeholders with whom we 
spoke told us that they cannot learn when rules are scheduled for a 
vote until the agenda is publicly available. At that time, FCC rules 
prohibit stakeholders from lobbying, or making presentations to, FCC. 
This unequal access to information could create an unfair advantage for 
FCC stakeholders who know when FCC is about to vote on a rulemaking 
and, therefore, would know when it is most effective to present their 
arguments to FCC officials. 

In the Rulemakings We Reviewed, FCC Generally Followed the Rulemaking 
Process: 

We reviewed four case studies of rules that were released from 2002 
through 2006. Each of these rules originated in a different bureau-- 
Media, Wireless Telecommunications, or Wireline Competition--or in 
FCC's Office of Engineering and Technology. These bureaus and office 
had the most rulemakings during the period of our analysis. Table 1 
describes each of our case studies. 

Table 1: Overview of Completed FCC Rules Selected as Case Studies: 

Case study characteristics: Issue; 
Bureau or office: Wireline Competition: Incumbent Local Exchange 
Carrier unbundling - competitors' access to incumbent telephone service 
infrastructure; 
Bureau or office: Wireless Telecommunications: Public safety 
interference - potential remedies for interference in the public safety 
communications band; 
Bureau or office: Media: Cable boxes - development of retail market for 
set-top cable boxes; 
Bureau or office: Engineering and Technology: Amateur radio service - 
allotment of radio frequencies for amateur radio. 

Case study characteristics: Subject; 
Bureau or office: Wireline Competition: Congress required FCC to foster 
competition in local telephone service by requiring incumbent telephone 
companies to provide competitors with access to telephone network 
elements. This 2003 rule was FCC's third attempt to meet this 
requirement; 
Bureau or office: Wireless Telecommunications: Responding to increased 
harmful interference between cellular telephone services and public 
safety communications sharing the same band of frequencies, FCC adopted 
rules to reconfigure the band to reduce interference; 
Bureau or office: Media: Congress required FCC to foster a retail 
market for the set-top boxes used to access cable television services. 
Finding that efforts by cable and electronics interests had not 
achieved this, FCC adopted rules to spur the market's development; 
Bureau or office: Engineering and Technology: Responding to petitions 
for rulemaking from an association representing amateur radio service 
users, FCC adopted rules modifying the classification of certain 
amateur radio channels and providing some additional channels for this 
purpose. 

Case study characteristics: Date of first NPRM in related docket; 
Bureau or office: Wireline Competition: December 20, 2001; 
Bureau or office: Wireless Telecommunications: March 15, 2002; 
Bureau or office: Media: February 20, 1997; 
Bureau or office: Engineering and Technology: May 15, 2002. 

Case study characteristics: Date(s) of NPRM(s) directly related to case 
study rule; 
Bureau or office: Wireline Competition: December 20, 2001; 
Bureau or office: Wireless Telecommunications: March 15, 2002; 
Bureau or office: Media: September 18, 2000, and April 25, 2003; 
Bureau or office: Engineering and Technology: May 15, 2002. 

Case study characteristics: Date case study rule was released; 
Bureau or office: Wireline Competition: August 21, 2003; 
Bureau or office: Wireless Telecommunications: August 6, 2004; 
Bureau or office: Media: March 17, 2005; 
Bureau or office: Engineering and Technology: May 14, 2003. 

Case study characteristics: Court opinion; 
Bureau or office: Wireline Competition: The Court of Appeals for the 
D.C. Circuit vacated and remanded the rule in part, resulting in FCC's 
issuing another order in February 2005; 
Bureau or office: Wireless Telecommunications: The Court of Appeals for 
the D.C. Circuit denied a petition for review of this rule, deciding 
that FCC did not act in an arbitrary and capricious manner in 
reconfiguring the band; 
Bureau or office: Media: The Court of Appeals for the D.C. Circuit 
denied a petition for review of this order, finding that the court was 
barred from considering the issue because the time frame during which 
parties could petition FCC for reconsideration had not passed. The 
court also found nothing unreasonable about FCC's decision; 
Bureau or office: Engineering and Technology: No published opinions on 
this rule exist. 

Source: GAO analysis of FCC and U.S. Courts of Appeals data. 

[End of table] 

Among our four case studies, three rules were initiated by FCC in 
response to specific statutory requirements or on its own initiative, 
and one rule--amateur radio service--was initiated in response to 
petitions for rulemaking. Each of our case studies began with an NPRM, 
which, among other things, included either the language of the proposed 
rule or a description of the subjects and issues involved. The NPRM 
also described the notice and comment period during which stakeholders 
could file comments that FCC must consider. One NPRM--amateur radio 
service--included a specific proposal for the rule, while the other 
NPRMs included only the subject of the rulemaking. For example, in the 
public safety interference rulemaking, the NPRM discussed various 
methods to minimize interference and asked for comments on these 
proposals. Some stakeholders told us that it is much easier to comment 
on an NPRM that includes a proposed rule. According to these 
stakeholders, it is easier to comment on a specific proposal instead of 
trying to comment on an entire subject or a range of proposals. 
However, there is no requirement that an NPRM include a proposed rule. 

One NPRM that we reviewed contained an error, but that error did not 
appear to substantially affect the rulemaking. Specifically, the NPRM 
for the rulemaking on cable boxes incorrectly stated that the 
rulemaking was not bound by ex parte rules. FCC officials told us that 
this error occurred because language was inadvertently carried over 
from an earlier drafting of a notice of inquiry on cable boxes. FCC 
later decided to issue an NPRM instead of a notice of inquiry, but 
accidentally left in the language that the proceeding was not bound by 
ex parte rules. FCC officials told us that this mistake had no bearing 
on the rulemaking because stakeholders submitted ex parte filings 
anyway. Our review of the docket confirmed that stakeholders submitted 
ex parte filings in this rulemaking. 

In each case study, numerous stakeholders participated in rule 
development, both during and after the comment period. Specifically, 
the case studies had between 42 comments (for the cable boxes rule) and 
273 comments (for the public safety interference rule) filed during the 
comment period. In addition, FCC received between 8 (for the amateur 
radio service rule) and 2,237 (for the Incumbent Local Exchange Carrier 
(ILEC) unbundling rule) ex parte filings and comments in the docket 
after the formal comment period ended. These filings and comments, 
which were filed through FCC's Web site, either reflect a meeting 
between FCC officials and stakeholders or are written comments that 
stakeholders submitted after the formal comment period had ended. The 
comments range from lengthy studies to one-page, mass-produced e-mails. 
In formulating a rule, FCC must consider all comments that are filed 
during the comment period and may consider comments that are filed 
after the comment period. Each filed comment is placed in a docket that 
is publicly accessible through FCC's Web site. Generally, FCC 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 to submitting comments, stakeholders often meet with FCC 
staff to discuss issues. Stakeholders involved in our studies told us 
that they were able to meet with FCC officials when they requested 
meetings. Other stakeholders with whom we spoke who were not involved 
in these case studies but regularly comment on FCC rulemakings also 
told us that they were able to meet with FCC officials. A few of these 
stakeholders told us that, while FCC officials were always willing to 
meet with them, they were sometimes unsure if FCC officials were 
currently focused on the rulemaking that was being discussed. FCC 
officials told us that they meet with stakeholders who request a 
meeting, even if the stakeholders have no new information to present. 

We found that most of the hundreds of ex parte filings in the four case 
studies appeared to meet the requirements, but several did not appear 
to be sufficient. These filings, which publicly document when 
stakeholders meet with FCC officials, generally detailed who attended 
the meeting or what arguments were raised. However, in the cable boxes 
rulemaking, one filing did not reveal which organization was 
represented at the meeting or what was discussed. Another filing 
discussed new information that was supported by a research report, but 
the report was not included with the ex parte filing. If the 
information is not filed in the public record with the ex parte filing, 
then it cannot be used to support a rulemaking. Therefore, stakeholders 
have an incentive to file complete ex parte disclosures. We also found 
some ex parte comments in three of the four case studies that do not 
describe the discussion at the meeting, but refer to comments already 
in the docket. While such filings may comply with ex parte rules, the 
effect of this type of filing is mixed. Since the ex parte filing did 
not explain those positions, it may not be very helpful to other 
stakeholders because other stakeholders would have to go to the docket 
and look up the party's filed comments. Some stakeholders told us that 
there is nothing wrong with these kinds of ex parte filings. According 
to these stakeholders, they already know the other stakeholders and 
what their arguments are. As a result, these stakeholders are not 
concerned about the adequacy of ex parte filings. In contrast, a few 
stakeholders told us that they do not have the time or the resources to 
monitor each docket and, therefore, such ex parte filings are not 
helpful. FCC officials told us that, generally, bureau staff both 
remind stakeholders to submit ex parte filings and review them for 
accuracy. If a filing is not accurate or complete, the staff member 
asks the stakeholder to resubmit the filing. Stakeholders may file a 
complaint with FCC if they believe that other stakeholders have not 
provided complete ex parte filings. However, according to FCC 
officials, very few complaints have been filed. 

We found that FCC followed its Sunshine Period rule that prohibits 
unauthorized contact with FCC. In reviewing dockets and meeting with 
stakeholders and FCC officials, we found no evidence of any prohibited 
contact during the Sunshine Period. According to FCC officials and 
numerous stakeholders, the rules are well known and stakeholders do not 
generally request meetings or submit comments during this time. FCC 
officials told us that, if stakeholders do try to contact FCC or submit 
comments during the Sunshine Period, then FCC takes steps to ensure 
that the comments are not seen by the FCC staff working on the 
rulemaking. In the ILEC unbundling rulemaking, we found that several 
stakeholders submitted comments to FCC during the Sunshine Period. We 
also found that those comments were prominently marked in FCC's ECFS as 
comments that were submitted during the Sunshine Period and were not to 
be viewed by FCC staff working on the rulemaking. 

The ILEC unbundling case study took a number of months to be released 
after the commission voted to approve it. The rule was adopted at a 
public meeting in February 2003, but was not released until August 
2003. According to FCC officials, this delay was necessary because the 
final order was approximately 800 pages and the actual wording of the 
order was not voted on during the public meeting. Rather, the meeting 
included votes on the policy positions and issues associated with the 
order but not on the actual language. After the rule was adopted by the 
commission, Wireline Competition Bureau staff worked with relevant 
offices to draft the precise wording of the order, and then there were 
multiple discussions, comments, and revisions as the order went through 
each commissioner's office and each substantive change was approved by 
the commissioners. 

The rules in our four case studies took between 1.0 and 4.5 years to 
complete from the time the related NPRM was issued. Generally, however, 
stakeholders told us that they are not concerned about the time it 
takes to conduct a rulemaking. Stakeholders told us that, if they 
support a rulemaking, they would like it to be completed more quickly. 
However, these same stakeholders said they may oppose another 
rulemaking and would like that rulemaking to proceed slowly or not be 
completed at all. In contrast, another stakeholder told us that they 
always support quick rulemakings because the businesses they represent 
prefer a stable regulatory market, and ongoing rulemakings create 
uncertainty for some businesses and their investors. 

Three of the four rulemakings we reviewed were challenged in court. 
Both the public safety interference and the cable boxes rules were 
upheld by the U.S. Court of Appeals for the D.C. Circuit.[Footnote 41] 
In the ILEC unbundling rulemaking, the D.C. Circuit vacated and 
remanded the rule in part, which means that part of the rule was struck 
down, part of the rule was returned to FCC for reconsideration, and 
part of the rule was upheld.[Footnote 42] In response to the court's 
ruling, in August 2004, FCC issued another rule and NPRM soliciting 
comment on alternatives that would be consistent with the court's 
ruling, as well as a rule implementing a 12-month plan to stabilize the 
telecommunications market while the new rules were being 
written.[Footnote 43] Six months later, FCC issued a rule that the 
commission said was consistent with the court's guidance.[Footnote 44] 
This rule was also challenged and upheld by the D.C. Circuit.[Footnote 
45] 

Multiple Stakeholders May Have an Advantage Because They Are Given 
Nonpublic Information: 

Several stakeholders told us that they learn which items FCC is about 
to vote on even though that information is not supposed to be released 
outside of FCC. FCC circulates information internally approximately 3 
weeks before a public meeting to inform FCC staff of what is scheduled 
to be voted on at the public meeting. FCC rules prohibit the disclosure 
of this information to anyone outside of FCC. Specifically, the 
information is considered nonpublic information and cannot be released 
by any FCC employee without authorization from the FCC chairman. FCC 
officials in the units responsible for the case study rules and FCC 
officials in the units that conducted most of the rulemakings between 
2002 and 2006 all told us that this is nonpublic information, and that 
they do not release it outside of FCC. 

However, nine stakeholders--both those involved in the case studies we 
reviewed and other stakeholders with whom we spoke who regularly 
participate in FCC rulemakings--told us that they hear this information 
from both FCC bureau staff and commissioner staff. One stakeholder-- 
representing a large organization that is involved in numerous 
rulemakings--told us that FCC staff call them and tell them what items 
are scheduled for a vote. 

In contrast, a number of other stakeholders told us that they do not 
learn this information and do not know which items are scheduled for a 
vote. These stakeholders, who generally represent consumer and public- 
interest groups, told us that they do not know when FCC is about to 
vote on a rulemaking or when it would be best to meet with FCC staff to 
make their arguments. In contrast, stakeholders who know which items 
have been scheduled for a vote know when to schedule a meeting with FCC 
commissioners and staff because they know when FCC is about to vote on 
a rulemaking. 

FCC officials told us that, for stakeholders to successfully make their 
case before FCC, "timing is everything." Specifically, if a stakeholder 
knows that a proposed rule has been scheduled for a vote and may be 
voted on in 3 weeks, that stakeholder can schedule a meeting with FCC 
officials before the rule is voted on. In contrast, a stakeholder who 
does not know that the rule is scheduled for a vote may not learn that 
the rule will be voted on until the agenda is announced 1 week before 
the public meeting. However, once the agenda has been announced, the 
Sunshine Period begins, and no one can lobby FCC officials about the 
proposed rule. As a result, the stakeholder who learns that a rule has 
been scheduled for a vote 3 weeks before the vote can have a distinct 
advantage over a stakeholder who learns about an upcoming vote through 
the public agenda. Our case study reviews and discussions with multiple 
stakeholders showed that some stakeholders know this nonpublic 
information and, as a result, these stakeholders may have an advantage 
in the rulemaking process. 

Even though advance knowledge that a rule is scheduled for a vote is 
nonpublic information, it has been reported by news agencies in the 
past. Specifically, in the cable boxes rulemaking, an industry 
newspaper published a story stating that the proposed rule would likely 
be circulated among the commissioners for a vote within the next few 
weeks. The newspaper attributed this information to unnamed "FCC 
sources."[Footnote 46] 

Several Factors May Contribute to Dockets and Rulemakings Remaining 
Open: 

The complexity and number of issues within a docket and the priority 
the commission places on an issue may all factor into how long dockets, 
and the rulemakings within these dockets, remain open. FCC tracks open 
dockets, which may contain one or more rulemakings. The commission 
determines which rulemakings are a priority and when to open and close 
a docket; therefore, the commission determines how a rulemaking and a 
docket progress. Specifically, a docket may remain open because it is 
broad and is intended to include multiple rulemakings or because the 
commission has not voted to close the docket even though the docket 
includes completed rulemakings. Some rulemakings may remain open 
because they involve complex, technical issues or because competing 
priorities can force FCC officials to work on one rulemaking as opposed 
to another. 

As of December 2006, FCC had 133 open dockets on the Unified 
Agenda,[Footnote 47] 99 of which originated from three bureaus--Media, 
Wireless Telecommunications, or Wireline Competition--and one office-- 
Engineering and Technology.[Footnote 48] These four units had the most 
dockets during the period of our analysis. These dockets remain open 
for a variety of reasons. According to FCC officials, rulemakings may 
be completed within a docket even if the docket remains open. As we 
have previously discussed, one docket that has remained open since 1980 
includes a number of NPRMs and rulemakings that were issued. 

We selected four open dockets as case studies, each of which originated 
in a different FCC unit and had been open for a different length of 
time. Table 2 provides an overview of these dockets. 

Table 2: Overview of Open FCC Dockets Selected for Case Study: 

Case study characteristics: Issue; 
Bureau or office: Wireline Competition: Internet protocol (IP) 
services -examination of issues relating to services and applications 
making use of IP, including voice-over-IP services; 
Bureau or office: Wireless Telecommunications: Airport terminal use 
(ATU) -revision of communication frequencies at airports; 
Bureau or office: Media: Distributed transmission systems (DTS) - 
implementation of a new digital television technology; 
Bureau or office: Engineering and Technology: Satellite coordination - 
coordinating between terrestrial fixed stations and orbiting satellites 
in three different bands. 

Case study characteristics: Subject; 
Bureau or office: Wireline Competition: Seeks comments on what FCC's 
role should be in regulating IP services; 
Bureau or office: Wireless Telecommunications: Responds to a petition 
for rulemaking to remove any limitation on the output power 
requirements for ATU frequencies; 
Bureau or office: Media: Examines issues related to the use of DTS and 
proposes rules for future DTS operation; 
Bureau or office: Engineering and Technology: Responds to a petition 
for rulemaking to adopt a growth zone proposal for satellites and 
protect satellites from interference. 

Case study characteristics: Date of first NPRM; 
Bureau or office: Wireline Competition: March 10, 2004; 
Bureau or office: Wireless Telecommunications: October 10, 2002; 
Bureau or office: Media: November 4, 2005[A]; 
Bureau or office: Engineering and Technology: December 15, 2003. 

Case study characteristics: Date(s) of other NPRM(s) in docket; 
Bureau or office: Wireline Competition: June 3, 2005 June 27, 2006 
April 2, 2007; 
Bureau or office: Wireless Telecommunications: Not applicable; 
Bureau or office: Media: Not applicable; 
Bureau or office: Engineering and Technology: Not applicable. 

Case study characteristics: Date rule(s) released; 
Bureau or office: Wireline Competition: June 3, 2005 June 27, 2006 
April 2, 2007 June 15, 2007; 
Bureau or office: Wireless Telecommunications: January 24, 2005; 
Bureau or office: Media: November 4, 2005[A]; 
Bureau or office: Engineering and Technology: Not applicable. 

Source: GAO analysis of FCC documents. 

[A] The rule was a clarification of an interim rule that was released 
in another docket. 

[End of table] 

According to FCC officials, there is no way to determine exactly why a 
docket or a rulemaking remains open. While the chairman sets the FCC's 
agenda, the commission decides when to open and close dockets and when 
action will be taken on specific rulemakings, so whether or not a 
docket and rulemaking remain open is ultimately a commission decision. 
However, certain factors may contribute to dockets and rulemakings 
remaining open, including the following: 

* Broad dockets. Some dockets may remain open because FCC designed them 
to be broad with multiple rulemakings. For example, FCC officials 
involved in the Internet protocol services case study told us that this 
docket was created to encompass a variety of issues related to this 
topic. Specifically, the commission wanted to initiate a rulemaking 
that looked at a number of issues related to Internet protocol services 
and anticipated that the docket would be open for years and would 
include a broad NPRM followed by a number of rules. FCC has already 
completed four rules within this open docket, including rules related 
to 911 service and voice-over-Internet-protocol service. 

* Housekeeping. Some dockets may remain open even though the issue(s) 
within the docket has been addressed by a rulemaking. For example, in 
the airport terminal use case study, the docket remains open even 
though the issue raised in the NPRM has been addressed with a rule. FCC 
officials told us that the commission must vote to formally close a 
docket, and the commission will generally wait until after stakeholders 
have had a chance to file a petition for reconsideration or challenge 
the rulemaking in court. As a result, dockets often remain open for a 
time after a rule has been issued. FCC officials also told us that an 
open docket is a "housekeeping" issue, and that there is no harm in 
having dockets remain open. Stakeholders generally agreed that having 
dockets remain open is not an issue. 

* Complex/Technical issues. Within open dockets, some rulemakings may 
remain open for many years because they involve complex, technical 
issues. For example, the satellite coordination case study involves the 
technical properties of different types of satellites and involves 
worldwide coordination and complex decisions about a satellite's 
potential interference with another satellite. FCC officials also told 
us that satellite issues take a long time to resolve in part because of 
the nature of satellites, which require a worldwide frequency, a number 
of different applications, and millions of dollars. In the distributed 
transmission systems (DTS) case study, FCC officials and stakeholders 
told us that the issue involves complex new technology. Specifically, 
DTS technology would allow broadcasters to place towers around urban 
areas to more easily transmit digital programming. Within the 
rulemaking, stakeholders have submitted items such as proposed 
geographic locations for siting the towers to implement DTS, proposed 
criteria for determining if the towers are interfering with other 
broadcasts, and procedures to allow for potential additional 
transmitters without interference with adjacent channels. 

* Competing priorities. Some rulemakings may remain open because other 
rulemakings take precedence and the number of staff available to work 
on rulemakings is limited. For example, FCC officials told us that they 
worked on some rulemakings that are more important to the transition to 
digital television instead of the DTS rulemaking because Congress has 
set a deadline for the end of the digital television transition. FCC 
officials decided to focus their staff resources on more important 
rulemakings, especially since only a few companies have applied to use 
DTS since FCC adopted the interim DTS policy. All of the stakeholders 
involved in the DTS rulemaking with whom we spoke agreed with FCC 
officials and told us that other issues related to digital television 
are more important than establishing permanent DTS rules. FCC officials 
also told us that the issues in the DTS case study are similar to other 
rulemakings on the transition to digital television. Since the staff 
with expertise in digital television cannot work on every rulemaking, 
FCC officials have to prioritize the rulemakings on which they work. As 
a result, some rulemakings, such as DTS, remain open. 

Stakeholders generally told us that they are not concerned about the 
number of open dockets. According to these stakeholders, an open docket 
is not important; what matters is whether the rulemaking has been 
addressed. However, as we have previously discussed, stakeholders also 
told us that their views on the length of the rulemaking process could 
change depending on whether or not they favor the proposed rule. 
Specifically, supporters of an issue generally prefer a quick 
rulemaking, while opponents are likely to favor a lengthy rulemaking 
process. 

Conclusions: 

As a regulatory agency, FCC is routinely lobbied by stakeholders with a 
vested interest in the issues FCC regulates. It is critical that FCC 
maintain an environment in which all stakeholders have an equal 
opportunity to participate in the rulemaking process and that the 
process is perceived as fair and transparent. Situations where some, 
but not all, stakeholders know what FCC is considering for an upcoming 
vote undermine the fairness and transparency of the process and 
constitute a violation of FCC's rules. Since the success of lobbying 
for a particular issue can be highly dependent on whether an issue is 
being actively considered, FCC staff who disclose nonpublic information 
about when an issue will be considered could be providing an advantage 
to some stakeholders, allowing them to time their lobbying efforts to 
maximize their impact. As a result, FCC may not hear from all sides of 
the issue during an important part of the rulemaking process. This 
imbalance of information is not the intended result of the 
Communications Act, and it runs contrary to the principles of 
transparency and equal opportunity for participation established by law 
and to FCC's own rules that govern rulemaking. 

Recommendation for Executive Action: 

To ensure a fair and transparent rulemaking process, we recommend that 
the Chairman of the Federal Communications Commission: 

* Take steps to ensure equal access to information, particularly in 
regard to the disclosure of information about proposed rules that are 
scheduled to be considered by the commission, by developing and 
maintaining (1) procedures to ensure that nonpublic information will 
not be disclosed and (2) a series of actions that will occur if the 
information is disclosed, such as referral to the Inspector General and 
providing the information to all stakeholders. 

Agency Comments: 

We provided FCC with a draft of this report for their review and 
comment. FCC had no comment on the draft report and took no position on 
our recommendation. 

As we agreed with your office, 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 letter. At that time, we will send 
copies to the appropriate congressional committees and the Chairman of 
the Federal Communications Commission. We will also make copies 
available to others on request. In addition, the report will be 
available at no charge on the GAO Web site at [hyperlink, 
http://www.gao.gov]. 

If you or your staff have any questions, please contact me on (202) 512-
2834 or at goldsteinm@gao.gov. Contact points for our Offices of 
Congressional Relations and Public Affairs may be found on the last 
page of this report. See appendix II for a list of major contributors 
to this report. 

Sincerely yours, 

Signed by: 

Mark L. Goldstein: 

Director, Physical Infrastructure Issues: 

[End of section] 

Appendix I: Scope and Methodology: 

To describe the Federal Communications Commission's (FCC) rulemaking 
process, we reviewed agency documents available on FCC's Web site that 
describe its rulemaking process. We also reviewed FCC's internal 
rulemaking guidance documents and applicable laws, such as the 
Administrative Procedure Act of 1946 (APA) and the Communications Act 
of 1934. We interviewed FCC officials from the Offices of General 
Counsel, Managing Director, and Engineering and Technology and the 
Wireline Competition, Wireless Telecommunications, Media, and Public 
Safety and Homeland Security Bureaus to determine how FCC generally 
conducts rulemaking. Because we wanted to focus our review on FCC 
rulemaking as it applies to regulating telecommunications and media in 
the United States, we excluded rulemaking by FCC's International Bureau 
from the scope of this study. We also interviewed organizations that 
represent a number of industries regulated by FCC as well as public- 
interest organizations to determine how these organizations participate 
in FCC rulemaking. Table 3 is a list of the organizations we 
interviewed and the principal sectors they represent. 

Table 3: Industry and Public Interest Groups Interviewed in Our Study: 

Name of organization: American Cable Association; 
Principal sector(s) represented: Smaller cable television. 

Name of organization: Association for Maximum Service Television; 
Principal sector(s) represented: Television broadcasting technology. 

Name of organization: Association of Public-Safety Communications 
Officials; 
Principal sector(s) represented: Public safety. 

Name of organization: Cable Television Laboratories; 
Principal sector(s) represented: Cable industry research and 
development. 

Name of organization: Comptel; 
Principal sector(s) represented: Competitive telecommunications 
services. 

Name of organization: Consumer Electronics Association; 
Principal sector(s) represented: Consumer electronics. 

Name of organization: Consumer Electronics Retailers Coalition; 
Principal sector(s) represented: Electronics retailers. 

Name of organization: Consumer Federation of America; 
Principal sector(s) represented: Consumers. 

Name of organization: Consumers Union; 
Principal sector(s) represented: Consumers. 

Name of organization: CTIA - The Wireless Association; 
Principal sector(s) represented: Cellular telephone, other wireless. 

Name of organization: Media Access Project; 
Principal sector(s) represented: Public-interest media and 
telecommunications. 

Name of organization: National Association of Broadcasters; 
Principal sector(s) represented: Television and radio broadcasters. 

Name of organization: National Cable and Telecommunications 
Association; 
Principal sector(s) represented: Cable television. 

Name of organization: National Telecommunications Cooperative 
Association; 
Principal sector(s) represented: Small, rural telephone. 

Name of organization: New America Foundation; 
Principal sector(s) represented: Public-interest research. 

Name of organization: Personal Communications Industry Association; 
Principal sector(s) represented: Wireless infrastructure. 

Name of organization: Satellite Industry Association; 
Principal sector(s) represented: Satellite. 

Name of organization: Skybridge[A]; 
Principal sector(s) represented: Satellite company. 

Name of organization: United States Telecom Association; 
Principal sector(s) represented: Telecommunications. 

Name of organization: Verizon; 
Principal sector(s) represented: Telecommunications company. 

Name of organization: Vonage[A]; 
Principal sector(s) represented: Internet-protocol telephone company. 

Source: GAO interviews. 

[A] We met with counsel that had represented Skybridge and Vonage in 
rulemakings. 

[End of table] 

We also gathered and analyzed available data on FCC rulemaking orders 
published in the Federal Register between 2002 and 2006. While each 
rulemaking order may contain one or more rules, each order is generally 
referred to as a rule. Therefore, throughout the report, we referred to 
each rulemaking order as a rule. We used the GAO online rules database 
to identify FCC rules published in the Federal Register between January 
1, 2002, and December 31, 2006, and compiled a list of those rules 
contained in the database as of February 1, 2007, which we refer to as 
"recent rules." We compiled only those rules FCC had identified as 
"significant/substantive" and excluded rules labeled as "routine/ 
info./other." We then used the Federal Register to identify each rule's 
FCC document number and the number of its associated docket.[Footnote 
49] With those numbers, we were able to use FCC's Web-based document 
databases--the Electronic Comment Filing System and the Electronic 
Document Management System--to retrieve FCC rulemaking documents, such 
as Notices of Proposed Rulemaking (NPRM), reports and orders (R&O), and 
comments and ex parte filings from public participants. NPRMs and R&Os 
include the dates they were adopted and released. Using these sources, 
for each recent rule, we were generally able to determine the rule's 
docket; the originating bureau; the dates the rule was adopted, 
released, and published in the Federal Register; and the dates the 
first NPRM was released in the rule's associated docket. Although some 
dockets contain multiple NPRMs, we did not analyze each rule to attempt 
to determine which specific NPRM(s) the rule was associated with, as it 
was not always clearly stated in the rules and a content comparison 
between each rule and each NPRM could not have been completed within 
the time frame for this study. We analyzed these NPRMs to determine 
generally why FCC initiated rulemaking. 

We reviewed selected U.S. Courts of Appeals opinions that addressed 
challenges to these rules. We identified appeals court opinions 
published between January 1, 2002, and June 1, 2007, using legal 
research databases, FCC's Web site, and the Web site for the U.S. Court 
of Appeals for the D.C. Circuit. Using citations in these cases, we 
identified which cases were related to the "recent rules" we have 
previously identified. We then gathered and analyzed the published 
opinions related to those recent rules and identified the court's 
decision in each case. We also obtained from FCC a list of ongoing 
court challenges to their rules. 

To determine the extent to which FCC followed its rulemaking process, 
we selected for case study four rules that were completed between 2002 
and 2006. Of the 240 rules FCC completed during that time, 190 rules 
originated in the Media, Wireless Telecommunications, or Wireline 
Competition Bureaus or in the Office of Engineering and Technology. We 
selected one rule from each of these units. We also based our selection 
of rules on why the rules were initiated, how long they took to 
complete, and whether they were challenged in court. For each rule, we 
reviewed and analyzed the rulemaking records and interviewed FCC 
officials and stakeholders involved in the rulemakings. We used 
information from these case studies to illustrate examples of FCC 
rulemaking; however, the findings in our case studies cannot be 
generalized to all FCC rulemakings. In addition to these case studies, 
we interviewed stakeholders who represented different sectors of the 
telecommunications field, including wireless providers, satellite 
providers, and public safety and consumer groups. We also interviewed 
FCC officials in each of the four units to obtain information on 
general experiences with the FCC rulemaking process. 

To identify the factors that contributed to dockets and rulemakings 
remaining open, we reviewed FCC's list of dockets in the December 2006 
Federal Register's Unified Agenda of Federal Regulatory and 
Deregulatory Actions. The Unified Agenda is published every 6 months 
and includes a list of dockets that FCC considers to be open. As of 
December 2006, FCC had 133 open dockets, 99 of which originated from 3 
bureaus--Media, Wireless Telecommunications, or Wireline Competition-- 
or FCC's Office of Engineering and Technology. Of these 99 open 
dockets, 1 began in 2006--making it too recent to include in our 
analysis. As a result, we analyzed 98 dockets. From those 98 dockets, 
we selected 4 dockets for case study. We selected dockets that 
originated in different FCC bureaus or offices, were initiated for 
different reasons, and had been open for various lengths of time. Each 
docket may contain one or more rulemakings, and we analyzed each docket 
and the rulemakings within each docket. We reviewed and analyzed the 
rulemaking records and interviewed FCC officials and stakeholders 
involved in the rulemakings to determine why the dockets and 
rulemakings remained open. We used information from these case studies 
to illustrate examples of FCC rulemaking; however, the findings in our 
case studies cannot be generalized to all FCC rulemakings. 

We determined that the data used in this report were sufficiently 
reliable for the purposes of our review. We conducted our review from 
October 2006 through July 2007 in accordance with generally accepted 
government auditing standards. 

[End of section] 

Appendix II: GAO Contact and Staff Acknowledgments: 

GAO Contact: 

Mark L. Goldstein (202) 512-2834: 

Staff Acknowledgments: 

In addition to the contact named above, individuals making key 
contributions to this report include Tim Bober, Lauren Calhoun, Maria 
Edelstein, Bess Eisenstadt, Edda Emmanuelli-Perez, Andrew Huddleston, 
Sara Ann Moessbauer, Josh Ormond, John W. Shumann, Tristan T. To, and 
Mindi Weisenbloom. 

[End of section] 

Footnotes: 

[1] Throughout this report, we refer to each of these rulemaking orders 
as a "rule." 

[2] While these rulemakings are not generalizable, the case studies 
provide context for understanding the rulemaking process. 

[3] We selected cases from FCC's Media, Wireless Telecommunications, 
and Wireline Competition Bureaus and from the Office of Engineering and 
Technology; we excluded the International Bureau from the scope of this 
review. See appendix I for additional information on our scope and 
methodology. 

[4] 47 U.S.C. § 151. 

[5] Preamble, Telecommunications Act of 1996, Pub. L. No. 104-104, 110 
Stat. 56 (1996). 

[6] 5 U.S.C. § 551(4) & (5). 

[7] As used in this report, the term "independent regulatory agency" 
refers to an agency, such as FCC, established to be more independent of 
the President and identified as such in the Paperwork Reduction Act. 44 
U.S.C. § 3502(5). 

[8] 47 U.S.C. § 154. 

[9] 5 U.S.C. § 551, et seq. 

[10] In contrast, "formal" rulemaking is a trial-type procedure for 
making a rule on the record following an agency hearing. Formal 
rulemaking is used less often than informal rulemaking. 

[11] APA provides exceptions to notice and comment, including when the 
agency finds for good cause that those procedures are impracticable, 
unnecessary, or contrary to public interest. 5 U.S.C. § 553(b)(3)(B). 

[12] 47 U.S.C. §§ 405 and 402, respectively. 

[13] In certain cases, appeals to FCC rules must be made only to the 
U.S. Court of Appeals for the D.C. Circuit. 47 U.S.C. § 402(b). 

[14] 5 U.S.C. §§ 601-612. 

[15] 5 U.S.C. §§ 601-612. 

[16] 5 U.S.C. §§ 801-808. 

[17] Substantive rules, which are generally subject to APA's notice and 
comment requirements and have the force and effect of law, are issued 
by an agency to implement statutory policy. They are essentially any 
rule that is not a one-time ruling, an interpretive rule, or a rule 
relating to agency policy or procedure. When reporting rules to GAO, 
agencies may also categorize rules by priority, such as "economically 
significant," "significant," or "substantive, nonsignificant." Lower- 
priority rules, identified as "routine and frequent," are those rules 
resulting from a multiple recurring application of a regulatory program 
that does not alter the body of the regulation. For FCC, such routine 
rulemakings generally constitute the allotment of broadcast channels, 
which require revision of the tables of allotment, which are part of 
the Code of Federal Regulations. Certain rules designated as "major" by 
the Administrator of the Office of Information and Regulatory Affairs 
of the Office of Management and Budget may have their effective date 
delayed by 60 days after the date of publication in the Federal 
Register or submission to Congress or GAO, whichever is later. The term 
"major rule" does not include any rule promulgated under the 
Telecommunications Act and amendments made by that act. 5 U.S.C. § 
804(2). 

[18] This information was reflected in the GAO Web database of rules as 
of February 1, 2007. 

[19] 5 U.S.C. § 552(b). 

[20] The Communications Act specifies that FCC's meetings are to be 
held at least monthly. 47 U.S.C. § 155(d). 

[21] E-Government Act of 2002, Pub. L. No. 107-347, Section 206, 116 
Stat. 2899, Dec. 17, 2002. 

[22] 44 U.S.C. §§ 3501-3520. 

[23] APA does prohibit ex parte comments on formal rulemakings and 
adjudications. 5 U.S.C. § 557(d)(1). 

[24] 47 CFR § 1.1206(a)(1). 

[25] Parties are not required to give advance notice of ex parte 
communications to other parties. 

[26] 47 CFR § 1.1206(b)(2). 

[27] For example, there is an exemption for other federal agencies, 
Members of Congress, or congressional staff under certain conditions. 
47 CFR § 1.1203(a). 

[28] Federal regulations define nonpublic information as information 
that an employee gains by reason of federal employment that has not 
been made available to the general public, including information that 
is confidential, is exempt from disclosure, or is not authorized to be 
made available to the public on request. It includes information that 
the employee knows, or reasonably should know, has not been made 
available to the general public. 5 CFR § 2635.703(b). 

[29] 47 CFR § 19.735-203(a). 

[30] Sometimes FCC may release a notice of inquiry to gather 
information on an issue without formally initiating rulemaking. 

[31] For example, in the Telecommunications Act, Congress specified 
that within 1 month after the date of the act's enactment, the 
commission convene a Federal Joint Board on Universal Service, and that 
it initiate a single proceeding to implement the board's 
recommendation. This proceeding was to be completed within 15 months of 
the act's enactment. 47 U.S.C. § 254. 

[32] For example, a rulemaking initiated in 2002 to examine commercial 
use of the so-called "millimeter wave" spectrum was initiated in 
response to an internal FCC initiative, sections 7(a) and 303(g) of the 
Communications Act, and a petition for rulemaking from an outside 
party. 

[33] In 2006, Members of Congress contacted FCC Chairman Kevin Martin 
after learning that FCC had, under a previous chairman, conducted 
studies related to media ownership but had not released them publicly. 
In response, FCC made the studies available on its Web site, and 
Chairman Martin told Congress he had asked the FCC Inspector General to 
investigate the matter of the availability of the draft reports. We are 
also currently conducting a review on the subject of media ownership 
issues, but not the issue of the availability of the draft reports. 

[34] FCC rules do not indicate whether rules were adopted at a public 
meeting or by circulation. 

[35] See the Letter to Honorable Ted Stevens, Chairman, Senate 
Committee on Commerce, Science and Transportation from Chairman Michael 
Powell and Commissioner Michael Copps (Feb. 2, 2005). 

[36] FCC refers to a final rule document it releases as a "report and 
order." 

[37] Analysis to determine the unique NPRM(s) on which each of the 240 
rules was based was beyond the scope of this review. 

[38] An exception to this is the Telecommunications Act, which did 
require FCC to complete rulemakings on certain issues within prescribed 
time frames. 

[39] A petitioner may file a petition for writ of mandamus to compel 
FCC action. 

[40] Of the 19 rules with published opinions where the court denied the 
challenge, 17 had been subject to petitions for review while 2 others 
were subject to petitions to stay the rules' effective dates. 

[41] 457 F.3d. 1 (D.C. Cir. 2006). 460 F.3d 31 (D.C. Cir. 2006). 

[42] 359 F.3d (D.C. Cir. 2004). 

[43] Unbundled Access to Network Elements, WC Docket No. 04-313, Order 
and Notice of Proposed Rulemaking (FCC 04-179), 19 FCC Rcd. 16783 
(Released Aug. 20, 2004). 

[44] Unbundled Access to Network Elements, WC Docket No. 04-313, Order 
on Remand (FCC 04-290), 20 FCC Rcd. 2533 (Released Feb. 4, 2005). 

[45] 450 F.3d 528 (D.C. Cir. 2006). 

[46] Anne Veigle, Communications Daily, February 22, 2005, Cable 
Section. 

[47] The Unified Agenda is a public document, published every 6 months, 
that lists regulations that the government is considering or reviewing. 
FCC is required to submit a regulatory agenda that becomes part of the 
Unified Agenda. 

[48] Thirty-four of the 133 dockets were scattered among several 
offices that were outside the scope of this review. Of the 99 dockets, 
1 began in 2006. As a result, we analyzed 98 dockets. 

[49] FCC documents, such as reports and orders and Notices of Proposed 
Rulemaking, are coded using the following unique number scheme: "FCC YY-
ZZZ," where "YY" represents the year the document was adopted and "ZZZ" 
represents a unique number from that year, such as "FCC 03-105," the 
report and order for the Amateur Radio Service rule. FCC dockets use a 
similar unique numbering scheme, as follows: "XX Docket No. YY- ZZZ," 
where "XX" stands for the bureau the rule originated in, "YY" 
represents the calendar year the docket was established, and "ZZZ" 
represents a unique number from that year, such as "ET Docket No. 02- 
98," the docket for the Amateur Radio Service proceeding, which 
indicates the docket is from the Office of Engineering and Technology 
and was established in 2002. 

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