The FCC Decision-Making Process
The FCC, like most federal agencies, must follow rules to ensure its processes are open to the public. When making a policy decision, the FCC gives notice that it is contemplating a decision and provides an opportunity for the public to comment on how the decision should be made. Any interested party or individual can file comments in these proceedings. When deciding, the FCC is required to consider all major issues and give a rational explanation of why it made its decision. A short letter can make a difference if it is on point and assists the FCC staff. Also many emails on the same issue can attract the FCC’s attention to an issue.
At the FCC, there are two ways in which any policy decision making process starts. An interested party can ask the FCC to initiate a proceeding with a petition, or the FCC can initiate a proceeding with a Notice of Inquiry (NOI) or a Notice of Proposed Rulemaking (NPRM).
Petitions for Rulemaking
When an interested party wants to initiate a proceeding they party can petition the FCC. This situation can occur where old rules were originally satisfactory but something has changed. If the FCC is interested in the petition, they will seek a public comment period on the petition. Although petitions are the only way for outside parties to initiate proceedings at the FCC, it is very difficult to get one heard. They have little priority unless they have some political backing. Therefore, the best way to successfully petition the FCC is to obtain and create widespread grassroots or political support for your proposal. Another way to raise your concern is to find a closely related proceeding that is already underway and raise your concerns there.
The second way to start a proceeding is for the FCC to initiate it. This is done through NOIs and NPRMs.
Notice of Inquiry (NOI)
When the FCC recognizes that it is dealing with an issue of significant public policy, but believes there is insufficient data gathered on the issue to formulate a policy at this time, it issues a Notice of Inquiry (NOI). At this time the FCC gathers comments and information from the public. At the end of an NOI, the FCC may elect to propose a rule if appropriate, or it may issue a report with the information it gathered. The FCC cannot adopt a new rule after an NOI.
Notice of Proposed Rulemaking (NPRM)
The second way for the FCC to initiate a proceeding is to issue a Notice of Proposed Rulemaking (NPRM). In an NPRM, the FCC explains a policy issue and sometimes sets forth a proposed resolution of that issue. The FCC then allows the public and interested parties to give comments to the FCC. All comments are publicly available for all parties to review and comment on see the FCC's Electronic Comment Filing System. A deadline is given for the filing of comments and usually there is a subsequent period in which parties can reply to the arguments made in the initial round of comments. After the comment period is closed, but before a decision has been made by the FCC, an interested party can still make its views known. To provide your views or information to the FCC during this time, all a person has to do is follow the FCC's ex parte rules. You can do this in writing or in a meeting with FCC staff.
Communicating with the FCC After the Comment Deadline — Ex Parte Contact
After the comment period has passed, you may still make arguments to the FCC either in person or in writing. The most important part of the FCC decision-making often occurs after formal comments are filed. If you make an ex parte presentation you are required to file a summary of your presentation so the public can see it and have a chance to respond. You must write a letter and file it within one day of your meeting.
Ex parte rules allow you to make comments after the formal comment period passes. There are two types of ex parte submissions to the FCC. You can file comments late in a written letter or you can make arguments orally to FCC staff. Written ex parte letters are similar to comments filed in the formal comment period. The only difference is that they are filed after the comment period. Oral ex parte letters are filed after you have met with FCC staff. Specifically, any communication directed to the merits or outcome of a proceeding is called an ex parte presentation.
After you have a meeting with an FCC staffer in an oral ex parte meeting, you must file a letter describing what you said. Please refer to our page on complying with ex parte rules.
Meeting with FCC Staff
Contact the FCC staff member connected with the proceeding before planning an ex parte presentation. Staff will let you know if you can make a presentation (some proceedings are restricted) and can clarify the rules. Use the FCC directory to get the phone numbers of staff members.
The best people to meet with at the FCC are those involved in the specific proceeding you are interested in. Typically FCC staff is named at the end of an NPRM. You can also call the office of the Bureau Chief that is handling this proceeding and ask them which staff are involved.
The best people to meet with for ex parte conversations vary according to the policy and the chronological point in the process when the order is being drafted and approved. The staff in the Bureaus usually read the comments and draft FCC orders. The order is then passed to the Bureau Chief and around the FCC for edits. Once the Bureau Chief signs off on the draft the Chairman’s office gets the draft. After the Chairman’s office gives his or her edits, then the other Commissioners are given a copy of the draft. Then the advisors to each Commissioner get together and resolve additional issues and make final decisions.
You can have a meeting with any of the staff while they are working on drafting and editing the order. The staff can’t tell you what the order says, but you can ask if they need more information on an issue, and you can answer their questions. Once the staff starts to think about the issues, their thinking should become more developed and detailed. It is best to meet with staff while they are working on your issue. You can ask them when an appropriate time to meet will be. If, through the presentation of your argument, you persuade the staff that your position is the correct one, they will include it in the draft order that will go to the Commissioners.
If you want to influence the Commissioners, it is important to meet with them or their advisors after they have read the draft. If you’re meeting with the Bureau staff, ask if they have a time table on when the draft will be sent to the Commissioners. If they don’t know, you can call one of the staff attorneys every couple of weeks to find out where they are in the process.
When meeting with anyone on the FCC staff or the Commissioners to make an ex parte argument, the proper rules must be followed. Ex parte rules must be followed even if you speak with a staffer over the phone, or if you see them informally but talk about FCC decisions under consideration.
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FCC Issues Decision
After the FCC considers all the filed comments and all of the ex parte comments, it issues an order setting forth the final rule. The FCC must provide a rational explanation why it accepted or rejected different parties' views. If the parties are satisfied, the rule will guide FCC action and policy will be established. However, the process frequently does not end here, dissatisfied parties can appeal and ask for reconsideration.
Asking the FCC to Reconsider
Dissatisfied parties can appeal before the FCC either by petitioning for reconsideration or clarification. Parties usually must seek reconsideration within 30 days of the decision. A petition should provide new information, but often only asks the FCC to change its mind. This triggers a new round of comments. The FCC can also determine that the petition essentially argues nothing new, covering old ground, and therefore, deny the petition. In addition, seeking reconsideration can be important if the party wants to seek a court review.
If you file a petition for reconsideration, the FCC will put the petition out for public comment and set a deadline for others to comment. If others respond to you they must mail you a copy.
Seeking Review of FCC Decisions in Court
Dissatisfied parties can also appeal decisions of the FCC in the U.S. Court of Appeals. There are strict time limits in which this can be done. Typically an appeal must be filed within 60 days of the decision. In federal court, law and precedent limit the circumstances under which FCC decisions can be overturned. Typically parties argue the decision of the FCC was unconstitutional, irrational, or violates the Communications Act. Constitutional claims often raise First Amendment questions.
When a dissatisfied party argues that a decision was irrational, this is based on the Administrative Procedure Act, requiring the FCC to consider all comments and give a rational explanation of its decision. As long as the federal agency can give a rational explanation of its decision, a federal court will give it considerable discretion, making this approach very difficult to win. Finally, one can argue that a decision does not comply with the Communications Act itself. The FCC’s office of General Counsel and the Department of Justice represent the FCC in Court.
After the Appeals Court, a party can try to appeal to the Supreme Court. The Supreme Court has discretion whether or not it will listen to your case. Appeals to the Supreme Court are rare, but when they occur, they have the potential for dramatic changes in communications policy.
When all the appeals are complete, a policy is created and the issues move out of the policy offices of the FCC and into the Enforcement Bureau.
An example of the FCC decision-making process is Media Access Project’s petition for the Creation of a Low Power Radio Service on behalf of the United Church of Christ, et al.
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