Skip to main content

FCC's Pai: Commission Should Codify Merger Shot Clock

FCC commissioner Ajit Pai made his arguments for FCC reform
to a Federal Communications Bar Association crowd on Thursday, including
codifying the FCC's informal merger review shot clock and creating an online
dashboard of the FCC's performance 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, Pai, who has firsthand
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 Governor
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 year 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

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 business is conducted.