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.
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.