Now that the FCC has released its new reclassification order, it is worth remembering past complaints about the FCC’s transparency and process problems. Their relevance will become more clear as the unforeseen consequences of the FCC’s reclassification order become more apparent.

In 2010, when FCC Chairman Martin released a draft order, Free Press complained before the vote:

We appreciate the opportunity to comment on the report, though the truncated comment cycle coming after the Chairman’s office circulated a draft Order leads us to believe this is an exercise in optics, not a serious attempt to give consideration to this critical issue.

A 2010 Court decision, in which Free Press was a plaintiff, concluded that the FCC had not fulfilled its “obligation to make its views known to the public in a concrete and focused form:

”Two weeks before the Chairman‘s response period closed, and before most of the responses were received, a draft of the order was circulated internally. The final vote occurred within a week of the response deadline. This is not the agency engagement the APA contemplates.  In this context, we have little choice but to conclude that the FCC did not, through the FNPR, fulfill its ―obligation to make its views known to the public in a concrete and focused form so as to make criticism or formulation of alternatives possible.

In 2012, Free Press/Save The Internet issued a statement complaining that the FCC “still has not made public its actual media ownership order”:

On Monday, attempting to respond to a growing chorus of critics, the Federal Communications Commission issued a statement claiming it has conducted its media ownership review transparently. The FCC also gave the public 30 days to comment on recently released summary data about female and minority ownership. However, the Commission still has not made public its actual media ownership order, conducted proper analysis of the impact of proposed rule changes on ownership diversity, or scheduled any public hearings on the issue. 

Free Press President and CEO Craig Aaron made the following statement:

“The FCC should retract this misleading statement. Under Chairman Julius Genachowski, the FCC’s push for more harmful media consolidation has been anything but transparent. The FCC’s latest attempt to sugarcoat its bitter media consolidation pill is not going to fool anyone. … Furthermore, it’s disingenuous for the FCC to suggest that its process now is more transparent than the one former Chairman Martin used to adopt similar rules. Genachowski’s FCC has yet to publish any details of its final proposal, offering only vague snippets in press releases. 

In 2008, a Democratic House Commerce Committee staff report complained that Chairman Martin refused to publish the text of proposed rules well enough before a vote so that the public could meaningfully comment on the specific rules.  

In an undated letter received by the Committee a few weeks later, Chairman Martin specifically agreed to adhere to the requirements of the Administrative Procedure Act (APA) and to make all but one of the management improvements requested by Chairman Dingell. In his letter, however, Chairman Martin refused to agree to “publish the text of proposed rules sufficiently in advance of Commission meetings for both (i) the public to have a meaningful opportunity to comment and (ii) the Commissioners to have a meaningful opportunity to review such comments.” While Chairman Martin is technically correct that the APA does not require that he publish the actual text, his reply was a red flag that all was not well. Transparency was plainly not a priority.

Unsurprisingly, transparency has not become a priority. As a result, not only are the new rules unclear to observers (“it will still be a while before it’s clear what they mean.” – Vox, Tim Lee), but even the FCC does not appear to understand what the rules it just passed actually mean.

“Asked at a press conference what this means, FCC Chairman Tom Wheeler replied: “We don’t really know. We don’t know where things will go next.” – Wall Street Journal

These are the sort of things that more transparency and better process could have avoided. Instead, we plunge into the unknown bound only by the discretion of an agency that doesn’t really understand the rules it just passed and cannot bind future Commissions to its evolving whims.