Martin Won't Commit to Release of All Item Texts

FCC Chairman: Decision Due to Newspaper-Broadcast Cross-Ownership Rule's 'Unusually Controversial Nature'

By John Eggerton -- Broadcasting & Cable, 12/11/2007 6:57:00 PM

Federal Communications Commission chairman Kevin Martin would not commit to publish the exact text of a proposed rule, suggesting that the publication of his proposed change to the newspaper-broadcast cross-ownership rule would not be a regular thing, but instead was in response to the "unusually controversial nature" of that item.

In a letter to House Energy & Commerce Committee chairman John Dingell (D-Mich.), who had asked him to commit to publishing the text of rules with enough time for public comment and vetting by other commissioners, Martin defended the process under his chairmanship, saying that commissioners did have time to review items and that the public had opportunity to comment on proposed rulemakings, which were published before the commission staff ultimately drafts an order for a vote.

But Martin has said before that to require comment at each iteration of the process, including after edits by various commissioners, would create a revolving door through which rules would not have a chance to pass. "The APA [Administrative Procedures Act] does not require that we publish the exact text of a proposed rule and, in fact, it has not been standard practice to publish separately a proposed rule prior to adoption of an order," he added.

Dingell, who has called the FCC process "broken," was "disappointed that Martin would not commit outright to putting the text of proposed rules out for notice and comment," a committee spokesman said.

As for giving his colleagues sufficient information and time to consider it, Martin argued that some of the hours-long delays in recent meetings have been because fellow commissioners did not submit their edits to his proposals until hours before the start of the meeting, if then, although they had had the proposals for at least three weeks and, in some cases, had circulated them to commissioners months before.

He added that he tried "to address concerns raised by my colleagues whenever possible, including those raised a day before or even an hour before a scheduled open meeting. I recognize that at times this may result in a a delay or in a less orderly process, but I believe it significant that over 95% of commission items have been adopted by a bipartisan majority."