Years-Old FCC Rules Finally Get Effective Dates

Called housekeeping effort after some previous administrations neglected to submit OMB approvals for publication in Federal Register

By John Eggerton -- Broadcasting & Cable, 2/21/2013 4:29:12 PM

The Federal Register has started publishing February 2013 effective dates for a dozen or so FCC rules and rule changes dating back almost two decades, apparently because the FCC neglected to publish them when they were originally approved by the Office of Management and Budget.

That was a problem because as they were written, the rules' effective dates were to be triggered by that publication.

In one example, an effective date of Feb. 21, 2013, has just been set for a 1995 revision to a 1992 Cable Act form -- 1240 -- that cable operators have been using for years to request an annual adjustment of cable rates.

The FCC adopted the form in 1995 to allow cable operators the option to file annual rather than quarterly adjustments of rates. "It's a mystery how this wound up on the top of someone's pile" after 17 years, said one cable attorney.

Lee Powell, an editor at the Federal Register, pointed to several FCC notices with effective dates of Feb. 21 for rules dating back to 1994, and an FCC source said there were about a dozen similar catch-up publications being published this week in the Register.

Among those, according to the Register, were an EEO rule review from as recently as 2004 and Open Video Systems rule changes from 1996.

The Office of Management and Budget approved the Paperwork Reduction Act requirements of the 1240 form only a couple of months after the FCC approved the change in fall 1995.

But even though OMB had years ago vetted and approved that and the other FCC rule changes belatedly submitted to the Register in recent days, a footnote on all of them -- one that still appears to this day on rules with paperwork collection implications -- says the rules are effective not upon OMB approval, but on publication of that approval in the Federal Register. All rules that have new reporting obligations have to be vetted by OMB to make sure the new paperwork is justified.

It turns out the FCC failed to submit those dozen or so paperwork approvals, all Media Bureau-related. "The commission never published OMB approval in the Federal Register," the FCC source confirmed.

It is unclear whether that means the FCC has been enforcing unenforceable rules all these years, or whether the footnote was extraneous given that OMB had approved them.

The FCC official, who was familiar with the directive to clean up the omitted submissions (which came from the Office of General Counsel), suggested it was merely housekeeping. It was essentially "to remove those notes that have been there all these years despite OMB approval," said the source, who had no intel on how the FCC failed to submit them at the time.

FCC chairman Julius Genachowski has taken a number of steps to clear out some of the regulatory underbrush, including removing old regs from the books.

Powell said that he had seen gaps of several months to as much as five years between adoption of rules and publication in the register by various agencies, but never 17 years, as was the case with form 1240. "It does seem a little odd," he added.

Coincidentally, the publication came the same day FCC commissioner Ajit Pai was talking to communications lawyers about ways to speed up the FCC's processes.