	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. 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. 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. 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. 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. 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. FCC may also propose rules in response to  petitions for rulemaking filed by outside parties. 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. Reconsideration and Appeal

Stakeholders unsatisfied with an FCC rule may file a petition for  reconsideration with the commission or petition for federal judicial  review. 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. 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. Table 1 describes each  of our case studies. Stakeholders  may file a complaint with FCC if they believe that other stakeholders have  not provided complete ex parte filings. FCC rules prohibit the disclosure of this  information to anyone outside of FCC. The  newspaper attributed this information to unnamed “FCC sources.”

	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. 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. Stakeholders generally told us that they are not concerned about the  number of open dockets. 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. 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. As a result, we analyzed 98 dockets. 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.
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.