Transactions

Pai: FCC Should Codify Merger Shot Clock

Tells FCBA Crowd that Commissioners Should Be Able to Meet Privately to Hammer Out Deals 2/21/2013 8:56 AM Eastern

FCC commissioner Ajit Pai made his arguments for agency reform to a Federal Communications Bar Association crowd, including codifying its informal merger review shot clock and creating an online performance dashboard in a bunch of key metrics.

It is a pitch he has been making since he took office last May, but since communications lawyers are on the front lines of FCC process, it was likely a receptive audience.

According to a copy of his prepared text for the Feb. 21 event, Pai, who has first-hand knowledge of the FCC's legal workings as a former member of the General Counsel's office, said he had been frustrated to see issues languish at the agency, with more than 100 items on circulation (for commissioner votes) as item after item stalled in the system.

He said the criticism was not of the staff, who get as frustrated as he does, but of the process.

He also said the FCC has made recent strides to address the issue, with commissioners voting more quickly after issues are placed on circulation. But he suggested the FCC still had a ways to go.

Pai wants the FCC to streamline more of its transaction reviews and to start treating statutory deadlines as actual deadlines. For one thing, he would codify in statute the FCC's 180-day informal shot clock on merger reviews.

He cited the Michigan Dashboard created by Michigan Gov. Rick Snyder to measure state government performance and said the FCC could use a similar one-stop gauge of its performance in resolving petitions to review or deny decisions, waiver requests, license renewal applications and consumer complaints, and compare them with a ear or five years ago.

Pai put in a plug for the Republican-backed FCC Process Reform Act, which passed the House last session but ran into the Democratic Senate. That act, he said, would have fixed the problem of the FCC, when it does act, sometimes doing so on "stale" Notices of Proposed Rulemaking. He cited the current media ownership review as an example. "we are considering in the media ownership proceeding whether to effectively prohibit joint sales agreements among television stations based on a 2004 NPRM."

Pai opposes the JSA change, which was proposed after the commission adopted a similar prohibition on radio JSAs.

Pai also argued for allowing the FCC's commissioners to meet privately. Sunshine laws currently prevent them from doing so, which means they have to negotiate over items through staffers or in one on one meetings. "[I]f anyone ever came to an open meeting expecting to see FCC Commissioners actually deliberate, he or she would be sorely disappointed," he said. "The outcome is always preordained. And aside from some ad-libbed one-liners, the statements are mostly scripted. The real deliberations take place beforehand."

The rule also made for some marathon meetings under former FCC chairman Kevin Martin as last minute horse-trading and edits via emissaries sometimes stretched meetings out for hours.

"Recently, I’ve wondered what would happen if my four colleagues and I could all get together in a room and try to hammer out a deal," he said. "Maybe we’d make some progress; maybe we wouldn’t. But it couldn’t be any worse than the current process, which is so opaque that it is difficult for even Commissioners to see what is going on."

Bipartisan legislation has been introduced to allow meetings by more than two commissioners, so long as no decisional businesses is conducted.

September