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To: isen@isen.com Can I jump in the discussion regarding the Powell-Wyden letter? I was the senior legal adviser to Bill Kennard when he was FCC chairman and I wanted to clarify two points about FCC procedure. There is no requirement that a Notice of Inquiry precede a Notice of Proposed Rulemaking. As its name suggests, the purpose of the NPRM is to identify proposed rules that the agency has tentatively decided to adopt and to seek public comment on them. After the comment period is over, the agency can then revise its proposed rules based on what it learned during the comment period. Sometimes, a Notice of Proposed Rulemaking is preceded by a Notice of Inquiry, but usually that is NOT the case. Indeed, NOIs are rather rare. They are like NPRMs in that they are designed to solicit public comment, however the NOI is a more open-ended proceeding and it does not propose that any rules be adopted. After the NOI comment period, the agency can decide that further action is warranted on the matter (such as the issuance of an NPRM) or that no further action is needed, in which case the proceeding is terminated. The important point is that the NPRM need not be preceded by a NOI and most NPRMs are NOT preceded by an NOI. In fact, NOIs are often perceived as a waste of time or a way for the Commission to pretend that it is acting on some issue when it really isn't. For example, when the Commission recently issued an NOI to examine the danger that communications towers posed to migratory birds, environmental groups claimed it was inaction masquerading as action. There is no 12-month waiting period, or any other waiting period, between the NPRM and the adoption of final rules. The agency does have to give some reasonable period of time for public comment and then has to give due consideration to those comments, but there are no automatic waiting periods. Of course, Reed may be right. Perhaps the fix IS in. But I can assure you that Reed Hundt never issued an NPRM without having first determined what the final rules should look like. It's the only way to be an effective FCC chairman. Eventually you may have to compromise a bit and make some tweaks based on the public comments, but the rule that applies to trial lawyers applies equally to FCC chairmen: don't ask questions that you don't know the answers to.
Thomas C. Power |