Should Your Opinion Count?
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Speak now or forever hold your peace or at least hold it for a long time until provision can be made to hear your arguments. The U.S. Federal Communications Commission (FCC) is required to consider your comments in the process of making rules. Public participation is essential to ensure that no issue has been overlooked and that rules represent the public’s view on particular issues.
In certain satellite rulemakings, the FCC has enacted rules where no comments were filed by the public. This was even after the public had notice of the rulemaking but chose not to submit comments (in this article, private interests are also considered part of the public). It is very difficult to enact good regulations without public comment. Yet, the only thing worse than this is when only one party files comments, an incident that is not unusual in satellite rulemakings.
The irony is that, once the FCC enacts a rule, the next opportunity to change that rule may be years down the road. So the best time to act and influence FCC policy is while an issue is on the table. This article will discuss the mechanics of rulemaking and how to file comments.
The FCC’s Authority for Rulemaking
The FCC is an independent agency created by Congress and thus carries out the mandates of Congress. The FCC proposes and adopts rules just as a legislative body proposes bills, amends them and signs them into law. FCC Commissioners adopt rules by majority vote. There are five FCC Commissioners appointed by the President and they serve fixed, staggered terms.
The Rulemaking Process
The FCC enacts regulations primarily through a three-step process called notice-and-comment.
- 1. The FCC publicly proposes a new rule through a Notice of Proposed Rulemaking (NPRM). The NPRM will request written comments from the public. At the same time, the NPRM will allow for a period where the public can respond to comments.
- 2. The FCC takes all comments into consideration and deliberates internally. It is implicit in the process that, since the FCC is requesting comment, it must be open to changing the proposed rule based on information received from the public.
- 3. The FCC adopts the new rule, and along with it, sets forth an explanation of the basis and purpose of the rule. The rule will take effect 30 days after publication in the Federal Register.
Rules have two important characteristics:
- 1. Rules are of future effect. In other words, FCC rules cannot be retroactive.
- 2. Rules are of general applicability. This means that they apply to everyone equally.
Rulemaking must not be confused with another process called adjudication, where the FCC can single out companies and address issues on a case-by case basis. In adjudication, FCC mandates apply solely to the entity that has been singled out, and FCC mandates can apply retroactively.
Ways to Challenge a Final Rule
A party can file a Petition for Reconsideration within 30 days after the rule is published in the Federal Register. A Petition for Reconsideration formally requests the FCC to modify its ruling. As a last resort, the courts are an option where the FCC might not have properly followed the rulemaking process or where the final rule turns out to be entirely different from the proposed rule. FCC rules can be challenged at the D.C. Court of Appeals and then at the U.S. Supreme Court. However, the FCC has some leeway in regards to how the proposed and final rules differ. So long as the final rule is a logical outgrowth of the proposed rule, further notice and comment on the changes made to the proposed rule are not necessary.
How to File Comments
The easiest way to file comments is electronically through the FCC’s Electronic Comment Filing System (ECFS) at http://fjallfoss.fcc.gov/ecfs/. Comments can be as simple as a one-sentence statement and as complex as an engineering study or a memorandum of law supporting a position. Making your voice heard is an important part of the democratic process, which cannot be effective without you.
Raul Magallanes runs a Houston-based law firm focusing on telecommunications law.
He may be reached at +1 (281) 317-1397 or by email at raul@ rmtelecomlaw.com.