GAO 

United States Government Accountability Office

Report to Congressional Requesters

FCC MANAGEMENT

Improvements Needed 

in Communication, 

Decision-Making 

Processes, and 

Workforce Planning 

December 2009 

GAO-10-79 
What GAO Found

United States Government Accountability Office

Why GAO Did This Study

Highlights

Accountability Integrity Reliability

December 2009

FCC MANAGEMENT

Improvements Needed in Communication, DecisionMaking Processes, and Workforce Planning

Highlights of GAO-10-79, a report to 

congressional requesters 

Rapid changes in the 

telecommunications industry, such 

as the development of broadband 

technologies, present new 

regulatory challenges for the 

Federal Communications 

Commission (FCC). GAO was asked 

to determine (1) the extent to which 

FCC’s bureau structure presents 

challenges for the agency in 

adapting to an evolving 

marketplace; (2) the extent to 

which FCC’s decision-making 

processes present challenges for 

FCC, and what opportunities, if any, 

exist for improvement; and (3) the 

extent to which FCC’s personnel 

management and workforce 

planning efforts face challenges in 

ensuring that FCC has the 

workforce needed to achieve its 

mission. GAO reviewed FCC 

documents and data and conducted 

literature searches to identify 

proposed reforms, criteria, and 

internal control standards and 

compared them with FCC’s 

practices. GAO also interviewed 

current and former FCC chairmen 

and commissioners, industry 

stakeholders, academic experts, 

and consumer representatives. 

What GAO Recommends

GAO recommends FCC, among 

other things, develop written 

policies on interbureau 

coordination and commissioner 

access to staff analyses; revise its 

public comment process and its ex 

parte policies; and develop targets 

identifying expertise needs, 

strategies for meeting targets, and 

measures for tracking progress. 

FCC generally concurred with 

GAO’s recommendations. 

FCC consists of seven bureaus, with some structured along functional lines, 

such as enforcement, and some structured along technological lines, such as 

wireless telecommunications and media. Although there have been changes in 

FCC’s bureau structure, developments in the telecommunications industry 

continue to create issues that span the jurisdiction of several bureaus. 

However, FCC lacks written procedures for ensuring that interbureau 

collaboration and communication occurs. FCC’s reliance on informal 

coordination has created confusion among the bureaus regarding who is 

responsible for handling certain issues. In addition, the lack of written 

procedures has allowed various chairmen to determine the extent to which 

interbureau collaboration and communication occurs. This has led to 

instances in which FCC’s final analyses lacked input from all relevant staff. 

Although FCC stated that it relies on its functional offices, such as its 

engineering and strategic planning offices, to address crosscutting issues, 

stakeholders have expressed concerns regarding the chairman’s ability to 

influence these offices. 

Weaknesses in FCC’s processes for collecting and using information also raise 

concerns regarding the transparency and informed nature of FCC’s decisionmaking process. FCC has five commissioners, one of which is designated 

chairman. FCC lacks internal policies regarding commissioner access to staff 

analyses during the decision-making process, and some chairmen have 

restricted this access. Such restrictions may undermine the group decisionmaking process and impact the quality of FCC’s decisions. In addition, GAO 

identified weaknesses in FCC’s processes for collecting public input on 

proposed rules. Specifically, FCC rarely includes the text of a proposed rule 

when issuing a Notice of Proposed Rulemaking to collect public comment on a 

rule change, although some studies have noted that providing proposed rule 

text helps focus public input. Additionally, FCC has developed rules regarding 

contacts between external parties and FCC officials (known as ex parte

contacts) that require the external party to provide FCC a summary of the new 

information presented for inclusion in the public record. However, several 

stakeholders told us that FCC’s ex parte process allows vague ex parte

summaries and that in some cases, ex parte contacts can occur just before a 

commission vote, which can limit stakeholders’ ability to determine what 

information was provided and to rebut or discuss that information. 

FCC faces challenges in ensuring it has the expertise needed to adapt to a 

changing marketplace. For example, a large percentage of FCC’s economists 

and engineers are eligible to retire in 2011, and FCC faces difficulty recruiting 

top candidates. FCC has initiated recruitment and development programs and 

has begun evaluating its workforce needs. GAO previously noted that strategic 

workforce planning should include identifying needs, developing strategies to 

address these needs, and tracking progress. However, FCC’s Strategic Human 

Capital Plan does not establish targets for its expertise needs, making it 

difficult to assess the agency’s progress in addressing its needs. 

View GAO-10-79 or key components.

For more information, contact Mark L. 

Goldstein at (202) 512-2834 or 

goldsteinm@gao.gov. 
Page i GAO-10-79 

Contents 

Letter 1

Background 3 

FCC’s Current Structure and Informal Coordination Processes Can 

Limit FCC’s Ability to Efficiently Address Crosscutting Issues 11 

Weaknesses in FCC’s Processes for Collecting and Using 

Information Can Undermine the Transparency and Effectiveness 

of the Decision-Making Process 23 

FCC Faces a Number of Workforce Challenges but Does Not Track 

the Progress of Its Efforts to Address Those Challenges 38 

Conclusions 45 

Recommendations for Executive Action 47 

Agency Comments 48 

Appendix I Objectives, Scope, and Methodology 51 

Appendix II FCC Bureaus and Functions 54 

Appendix III Comments from the Federal Communications 

Commission 58 

Appendix IV GAO Contact and Staff Acknowledgments 63 

Tables 

Table 1: Projected 2011 Retirement Eligibility for FCC Engineers 

and Economists 40 

Table 2: Comparison of FCC Responses and Responses from the 

Rest of the Government on Selected Items from the 2008 

OPM Federal Human Capital Survey 42 

Table 3: Organizations Interviewed 53 

Figures 

Figure 1: FCC’s Rulemaking Process 10 

Figure 2: FCC Organization Chart and Timeline of Changes 13 

 FCC Management 
Figure 3: Changes in the Number of Economists, Engineers, and 

Other Staff Employed at FCC 39 

Abbreviations 

APA Administrative Procedures Act 

Communications Act Communications Act of 1934 

CGB Consumer and Governmental Affairs 

Bureau 

DOJ Department of Justice 

DSL Digital Subscriber Line 

FCC Federal Communications Commission 

FHCS Federal Human Capital Survey 

FNPRM Further Notice of Proposed Rulemaking 

NOI Notice of Inquiry 

NPRM Notice of Proposed Rulemaking 

NRC Nuclear Regulatory Commission 

OET Office of Engineering and Technology 

OPM Office of Personnel Management 

OSP Office of Strategic Planning and Policy 

Analysis 

SBA Small Business Administration 

Sunshine Act Government in the Sunshine Act of 1976 

Telecommunications Act Telecommunications Act of 1996 

This is a work of the U.S. government and is not subject to copyright protection in the 

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Page ii GAO-10-79 FCC Management
Page 1 GAO-10-79 

United States Government Accountability Office

Washington, DC 20548 

 

December 17, 2009 

The Honorable Rick Boucher 

Chairman 

Subcommittee on Communications, Technology, and the Internet 

House of Representatives 

The Honorable Edward J. Markey 

House of Representatives 

Federal Communications Commission (FCC) regulations affect the daily 

lives of every American, from rules governing who may own the morning 

newspaper to the networks connecting the last phone call at night. FCCregulated industries provide Americans with daily access to 

communications services, including wireline and wireless telephone 

service, Internet access services, and radio and video services. FCC’s 

regulatory authority was substantially amended by the 

Telecommunications Act of 1996 (Telecommunications Act), with a goal of 

fostering competition among companies that used similar technology to 

provide services. However, the act did not fully envision the competition 

that has subsequently developed among previously distinct industries, 

such as wireless service competing with both local and long-distance 

wireline service, and video and telephone service providers competing to 

offer “bundles” of phone, video, and Internet services. As a result, some 

have argued that FCC’s current statutory framework applies different 

regulations to competing industries and has become inconsistent with 

current market conditions. FCC has acknowledged that its ability to 

respond to the evolving marketplace depends upon effective and 

transparent communication among FCC staff and with the members of the 

public, as well as the assurance that the agency has the information and 

expertise needed to adapt to evolving conditions. However, the agency has 

faced a series of critiques regarding the interaction among the chairman, 

commissioners, and bureau staff; transparency in its decision making; and 

workforce and personnel issues. To address these issues, a number of 

reforms have been proposed. In June 2009, Chairman Genachowski 

appointed a special counsel for FCC reform and directed FCC’s general 

counsel and managing director to perform a thorough review of the 

existing processes and to make recommendations for improvement. As 

part of this process, FCC has launched an internal online forum where 

employees can submit ideas for improvement and reform, and FCC is 

planning on launching a section on FCC’s Web site that will allow the 

public to offer ideas for FCC reform as well. 

 FCC Management 
 

Seeking information about FCC’s ability to achieve its mission, you asked 

us to review FCC’s organization, decision-making process, and personnel 

management. Accordingly, this report examines (1) the extent to which 

FCC’s bureau structure presents challenges for the agency in adapting to 

an evolving marketplace; (2) the extent to which FCC’s decision-making 

processes present challenges for FCC, and what opportunities, if any, exist 

for improvement; and (3) the extent to which FCC’s personnel 

management and workforce planning efforts ensure that FCC has the 

workforce needed to achieve its mission. 

To describe the challenges FCC’s bureau structure presents the agency in 

adapting to an evolving marketplace, we reviewed FCC procedures, 

applicable laws, and reviewed academic literature on organizational 

theory. To identify the extent to which FCC’s decision-making processes 

present challenges for FCC and opportunities for improvement, we 

reviewed literature on potential reforms to the federal rulemaking process 

and on the commission structure and decision-making process. We 

interviewed officials from the Nuclear Regulatory Commission, Federal 

Energy Regulatory Commission, and the Federal Trade Commission and 

reviewed their internal commission procedures to understand how other 

independent regulatory agencies implement the commission decisionmaking process. We reviewed FCC’s decision-making procedures and 

public comment and ex parte rules, and compared certain aspects to 

standards established in our internal control standards and other relevant 

documents. To determine the extent to which FCC’s personnel 

management and workforce planning efforts ensure that FCC has the 

workforce needed to achieve its mission, we reviewed our prior products 

related to strategic workforce planning and human capital challenges, and 

reviewed FCC’s 2007-2011 Strategic Human Capital Plan and FCCgenerated data on overall staff levels, hiring, attrition, and retirement 

eligibility for the period of 2003 to 2008. We analyzed results from the 

Office of Personnel Management’s (OPM) Federal Human Capital Survey 

(FHCS) for 2008 and compared FCC responses on various items with the 

results for the rest of government. We determined that the staffing data 

provided by FCC and the FCC 2008 FHCS survey data are sufficiently 

reliable for the purposes of this report. In addition, to address all of these 

questions, we interviewed current and former FCC officials, including 

commissioners and chairmen, as well as industry, consumer, and 

academic stakeholders. 

We performed our review from August 2008 to October 2009 in accordance 

with generally accepted government auditing standards. Those standards 

require that we plan and perform the audit to obtain sufficient, appropriate 

Page 2 GAO-10-79 FCC Management
 

evidence to provide a reasonable basis for our findings and conclusions 

based on our review objectives. We believe that the evidence obtained 

provides a reasonable basis for our findings and conclusions based on our 

review objectives. A detailed discussion of our scope and methodology 

appears in appendix I. 

FCC was established by the Communications Act of 1934 

(Communications Act). The Communications Act, as amended, specifies 

that FCC was established for the ‘‘the purpose of regulating interstate and 

foreign commerce in communications by wire and radio so as to make 

available, so far as possible, to all the people of the United States . . . a 

rapid, efficient, Nation-wide, and world-wide wire and radio 

communication service with adequate facilities at reasonable charges, for 

the purpose of the national defense [and] for the purpose of promoting 

safety of life and property through the use of wire and radio 

communication.”1

 FCC is responsible for, among other things, making 

available rapid, efficient, nationwide, and worldwide wire and radio 

communication services at reasonable charges and on a nondiscriminatory 

basis, and more recently, promoting competition and reducing regulation 

of the telecommunications industry in order to secure lower prices and 

high-quality services for consumers.2

 FCC established six strategic goals to 

support its mission:3

Background 

1. Promote access to robust and reliable broadband products and 

services4

 for all Americans. 

2. Promote a competitive framework for communications services that 

support the nation’s economy. 

 

1

47 U.S.C. § 151. 

2

The Telecommunications Act, which substantially amended the Communications Act, 

effected comprehensive reform of the nation’s telecommunications statutory and legal 

framework. Pub. L. No. 104-104, 110 Stat. 56 (1996). 

3

Federal Communications Commission, Strategic Plan 2009-2014 (Washington, D.C.). 

4

The term “broadband” refers to advanced communications systems capable of providing 

high-speed transmission of services such as data, voice, and video over the Internet and 

other networks. Transmission is provided by a wide range of technologies, including digital 

subscriber line and fiber optic cable, coaxial cable, wireless technology, and satellite. 

Broadband platforms make possible the convergence of voice, video, and data services 

onto a single network. 

Page 3 GAO-10-79 FCC Management
 

3. Facilitate efficient and effective use of nonfederal spectrum5 to 

promote growth and rapid development of innovative and efficient 

communications technologies and services. 

4. Develop media regulations that promote competition, diversity, and 

localism and facilitate the transition to digital modes of delivery. 

5. Promote access to effective communications during emergencies and 

crises and strengthen measures for protecting the nation’s critical 

communications infrastructure. 

6. Strive to be a highly productive, adaptive, and innovative organization 

that maximizes the benefit to stakeholders, staff, and management 

from effective systems, processes, resources, and organizational 

culture. 

FCC’s basic structure is prescribed by statute. FCC is composed of five 

commissioners, appointed by the President and approved by the Senate to 

serve 5-year terms; the President designates one member to serve as 

chairman. No more than three commissioners may come from any one 

political party.6

 The commission has flexibility in how it creates and 

organizes divisions or bureaus responsible for specific work assigned. 

Specifically, the Communications Act, as amended, requires the 

commission to organize its staff into (1) integrated bureaus, to function on 

the basis of the commission’s principal workload operations, and (2) such 

other divisional organizations as the commission deems necessary.7

 FCC 

currently consists of seven bureaus that are responsible for a variety of 

issues that affect consumers and the telecommunications industry, 

including analyzing complaints, licensing, and spectrum auctions, and 10 

offices that provide support services for the bureaus and commission. 

Appendix II has a detailed description of each bureau and office. Each 

bureau is required by statute to include the legal, engineering, accounting, 

administrative, clerical, and other personnel that the commission 

 

5

Spectrum encompasses the entire range of electromagnetic radio frequencies used in the 

transmission of sound, data, and video. FCC is responsible for spectrum not used by the 

federal government, including spectrum used by individuals (e.g., garage door openers and 

computer modems), private organizations (e.g., radio and television broadcasters), and 

public safety and health officials (e.g., police and emergency medical technicians). 

6

47 U.S.C. § 154. 

7

47 U.S.C. § 155(b). 

Page 4 GAO-10-79 FCC Management
determines necessary to perform its functions.8

 FCC has identified 

attorneys, engineers, and economists as the agency’s main professional 

categories. Although FCC has staff offices with concentrations of each 

profession (attorneys in the Office of General Counsel, engineers in the 

Office of Engineering and Technology, and economists in the Office of 

Strategic Planning and Policy Analysis), these professions are also 

integrated into the bureaus. 

Under the Communications Act, as amended, FCC has broad authority to 

execute its functions. The act, as amended, is divided into titles and 

sections that describe various powers and concerns of the commission, 

with different titles describing the laws applicable to different services. 

For example, there are separate titles outlining the specific provisions for 

telecommunications services and for cable services. This statutory 

structure created distinct regulatory “silos” that equated specific services 

with specific network technologies. However, technological advances in 

communications infrastructure have led to a convergence of previously 

separate networks used to transmit voice, data, and video 

communications. For example, telephone, cable, and wireless companies 

are increasingly offering voice, data, and video services over a single 

platform. 

FCC is charged with carrying out various activities, including issuing 

licenses for broadcast television and radio; overseeing licensing, 

enforcement, and regulatory functions of cellular phones and other 

personal communication services; regulating the use of radio spectrum 

and conducting auctions of licenses for spectrum; investigating complaints 

and taking enforcement actions if it finds that there have been violations 

of the various communications laws and commission rules that are 

designed to protect consumers; addressing public safety, homeland 

security, emergency management, and preparedness; educating and 

informing consumers about communications goods and services; and 

reviewing mergers of companies holding FCC-issued licenses. The 

Telecommunications Act also expanded FCC’s responsibilities for 

universal service beyond the traditional provision of affordable, 

 

8

Id.

Page 5 GAO-10-79 FCC Management
 

nationwide access to basic telephone service to include eligible schools, 

libraries, and rural health care providers.9

Two major laws that affect FCC’s decision-making process are the 

Government in the Sunshine Act of 1976 (Sunshine Act) and the 

Administrative Procedure Act of 1946.10

• Government in the Sunshine Act of 1976:

11 The Sunshine Act applies to 

agencies headed by collegial bodies. Under the Sunshine Act, FCC is 

required to provide sufficient public notice that the meeting of 

commissioners will take place.12 The agency generally must also release 

the meeting’s agenda, known as the Sunshine Agenda, no later than 1 week 

before the meeting. In addition, the Sunshine Act prohibits more than two 

 

9

The commission has established four universal service programs. The high-cost program 

assists customers living in high-cost, rural, or remote areas through financial support to 

telephone companies. The schools and libraries program (commonly referred to as E-rate) 

assists eligible schools and libraries in procuring telecommunications and Internet 

services. The low-income program assists qualifying low-income customers through 

discounted installation and monthly telephone services and free toll limitation service. 

Rural health care assists health care providers located in rural areas through discounts for 

telecommunications and Internet access services. These programs are funded by the 

Universal Service Fund. Telecommunications carriers and certain other 

telecommunications providers must contribute to the fund based on a percentage of their 

interstate and international revenues. The Universal Service Administrative Company, or 

USAC, administers the daily operations of the federal Universal Service Programs on behalf 

of FCC. This report does not address FCC’s management of this program. 

10Other laws and orders also apply to FCC rulemakings, including but not limited to the 

Regulatory Flexibility Act, the Congressional Review Act, the E-Government Act of 2002, 

and the Paperwork Reduction Act. 

115 U.S.C. § 552b. The term “agency,” for purposes of the Sunshine Act, means “any 

agency...headed by a collegial body composed of two or more individual members, a 

majority of whom are appointed to such position by the President with the advice and 

consent of the Senate, and any subdivision thereof authorized to act on behalf of the 

agency.” 5 U.S.C. § 552b(a)(1). 

12The Communications Act specifies that FCC’s meetings are to be held at least monthly. 47 

U.S.C. § 155(d). 

Page 6 GAO-10-79 FCC Management
 

of the five13 FCC commissioners from deliberating with one another to 

conduct agency business outside the context of the public meeting.14

• Administrative Procedure Act of 1946:

15 The Administrative Procedure 

Act (APA) is the principal law governing how agencies make rules. The 

law prescribes uniform standards for rulemaking, requires agencies to 

inform the public about their rules and proposed changes, and provides 

opportunities for public participation in the rulemaking process. Most 

federal rules are promulgated using the APA-established informal 

rulemaking process, which requires agencies to provide public notice of 

proposed rule changes, as well as provide a period for interested parties to 

comment on the notices—hence the “notice and comment” label. The 

notice and comment procedures of the APA are intended to encourage 

public participation in the administrative process, to help educate the 

agency, and thus, to produce more informed agency decision making. 

Experts have noted that public participation promotes legitimacy by 

creating a sense of fairness in rulemaking, and transparency helps both the 

public and other branches of government to assess whether agency 

decisions are in fact being made on the grounds asserted for them and not 

on other, potentially improper, grounds. APA does not generally address 

time frames for informal rulemaking actions, limits on contacts between 

agency officials and stakeholders, or requirements for “closing” dockets. 

FCC implements its policy initiatives through a process known as 

rulemaking, which is the governmentwide process for creating rules or 

regulations that implement, interpret, or prescribe law or policy.16 When 

developing, modifying, or deleting a rule, FCC relies on public input 

provided during the rulemaking process. 

 

13In addition, the Sunshine Act allows two of the five commissioners to deliberate with one 

another outside the context of a public meeting, even if there are fewer than five 

commissioners serving in office, since two commissioners do not constitute a quorum and 

cannot take action on behalf of the agency. A recently introduced bill would authorize 

three or more FCC commissioners to hold nonpublic collaborative discussions. See Federal 

Communications Commission Collaboration Act, H.R. 4167, 111th Cong. (2009). 

14Such meetings may be closed, in whole or in part, to the public under certain 

circumstances—for example, if the meetings relate to issues such as national defense, 

trade secrets, criminal investigations, and personal information. 5 U.S.C. § 552b(c). 

155 U.S.C. § 551 et seq.

165 U.S.C. § 551(4) & (5). 

Page 7 GAO-10-79 FCC Management
 

Before beginning the rulemaking process, FCC may issue an optional 

Notice of Inquiry (NOI) to gather facts and information on a particular 

subject or issue to determine if further action by the FCC is warranted.17

Typically, an NOI asks questions about a given topic and seeks comments 

from stakeholders on that topic. If FCC issues an NOI, it must issue a 

Notice of Proposed Rulemaking (NPRM) before taking final action on a 

rule, unless an exception to notice and comment rulemaking requirements 

applies. FCC issues NPRMs to propose new rules or to change existing 

rules, and the issuance of an NPRM signals the beginning of the 

rulemaking process.18 The NPRM provides an opportunity for the 

stakeholders to submit their comments on the proposal and to reply to the 

comments submitted by other stakeholders.19 A summary of the NPRM is 

published in the Federal Register and announces the deadlines for filing 

public comments and reply comments. The NPRM also indicates the rules 

for ex parte communications between agency decision makers and other 

persons during the proceeding. An ex parte presentation discusses the 

merits or outcome of a proceeding, and if written, is not served on all the 

parties to a proceeding, and if it is oral, it is made without advance notice 

to the parties or an opportunity for them to be present.20 FCC generally 

classifies its rulemaking proceedings as “permit-but-disclose” proceedings, 

in which ex parte presentations to FCC officials are permissible but 

subject to certain disclosure requirements.21 Generally, the external party 

must provide two copies of written presentations to be filed in the public 

record. If an external party makes an oral ex parte presentation that 

presents data or arguments not already reflected in the party’s written 

comments or other filings in that proceeding, then the external party must 

provide FCC’s Secretary with an original and one copy of a summary of 

the new data or arguments to be filed in the public record.22 Once FCC 

 

17FCC is not required to issue an NOI before issuing a Notice of Proposed Rulemaking, and 

as discussed later in the report, often does not. See 47 C.F.R. § 1.430. 

1847 C.F.R. § 1.412. 

1947 C.F.R. § 1.415. 

2047 C.F.R. § 1.1202. 

2147 C.F.R. § 1.1206(a)(1). 

2247 C.F.R. § 1.1206(b). In permit-but-disclose proceedings, ex parte presentations by 

members of Congress or their staffs and other federal agencies or their staffs need be 

disclosed only if they are of substantial significance and clearly intended to affect the 

ultimate decision in the proceeding. Disclosure of ex parte presentations by members of 

Congress or their staffs and other federal agencies or their staffs will generally be made by 

the commission’s staff. 

Page 8 GAO-10-79 FCC Management
 

places an item on the Sunshine Agenda, which lists the items up for a vote 

at the next open commission meeting, ex parte contacts are restricted, 

with several exemptions.23 In addition, FCC provides the stakeholders the 

ability to submit electronic comments via the FCC Web site. After 

reviewing the comments received in response to an NPRM, the FCC may 

issue a Further Notice of Proposed Rulemaking (FNPRM) seeking 

additional public comment on specific issues in the proceeding. Following 

the close of the reply and comment period, FCC officials may continue 

discussing the issue with external parties through ex parte presentations. 

Staff in the bureaus assigned to work on the order begin developing and 

analyzing the public record and the information provided in ex parte 

contacts to propose an action for the commission to vote on, such as 

adopting final rules, amending existing rules, or stating that there will be 

no changes. The chairman decides when the commission will vote on final 

rules and whether the vote will occur during a public meeting or by 

circulation, which involves electronically circulating written items to each 

of the commissioners for approval. See figure 1 for an illustration of the 

steps in FCC’s rulemaking process. 

 

2347 C.F.R. § 1.1203. 

Page 9 GAO-10-79 FCC Management
 

Figure 1: FCC’s Rulemaking Process 

Collecting public commenta Commission vote Issuance

Report and 

Order 

Adopts new 

rules, amends 

existing rules, 

or states that 

there will be 

no changes. 

Source: GAO analysis of FCC information.

FCC releases the 

Sunshine Agenda 

of items 

scheduled for a 

vote at a public 

meeting. The 

public may not 

contact the 

agency to discuss 

any matters that 

appear on the 

Sunshine Agenda 

unless there is a 

specific 

exemption.

Commissioners 

vote on items at 

a public meeting.

Initiation

May be 

initiated 

internally, 

externally, 

or statutorily. 

Internal

analysis

Period during which public may submit ex parte comments to FCC officials for any 

published notice categorized as permit-but-disclose. Prohibited for Sunshine Agenda 

items, with some exceptions.

Dashed lines indicate that a step is optional. 

FCC issues Notice of Inquiry to 

collect public comments on a topic.

Chairman decides whether 

and when the commission 

votes on an item.

Public submits comments during the 

time frame established in the notice.

FCC issues Notice of Proposed 

Rulemaking inviting public 

comments on new rules or 

changes to existing rules.

FCC issues Further Notice of 

Proposed Rulemaking to further 

clarify and seek more information 

and public comment on the 

commission's proposed changes.

Vote by 

circulation: 

commissioners 

electronically 

circulate and 

vote on an item. 

Public submits comments during the 

time frame established in the notice.

Public submits comments during the 

time frame established in the notice.

FCC staff in 

the bureaus 

and offices 

assigned to 

the issue 

analyze the 

information in 

the public 

record and 

propose an 

action for 

commission 

consideration.

a

This graphic focuses on the process for collecting public comments for APA notice and comment 

rulemaking proceedings. FCC may collect public comment through other means (such as soliciting 

comments on a petition for rulemaking through a Public Notice during the initiation phase). A person 

outside of the FCC may file a Petition for Rulemaking to suggest new rules or changes to existing 

rules. Unless directed in the FCC’s Public Notice seeking comment on the petition, the public has 30 

days from the date of the Public Notice to submit comments on whether the FCC should grant or 

deny the petition. After reviewing the comments received in response to the petition, the FCC issues 

an order disposing of the petition, an NOI, or an NPRM. 

Page 10 GAO-10-79 FCC Management
 

FCC’s Current 

Structure and 

Informal Coordination 

Processes Can Limit 

FCC’s Ability to 

Efficiently Address 

Crosscutting Issues 

Despite Changes to 

Modernize FCC’s Bureau 

Structure, Market and 

Technological Changes 

Have Created Issues That 

Span FCC’s Bureaus 

Although FCC has established some function-based bureaus and 

reorganized its bureaus to reflect some changes in the telecommunications 

market, further evolutions and the growth of new technologies have 

continued to create crosscutting issues that span several bureaus. FCC’s 

bureaus are still somewhat structured along the traditional technology 

lines of wireless, wireline, satellite, and media, despite the fact that one 

company may provide services that span such distinctions or that 

competing services may be regulated by different bureaus. Since the 

Telecommunications Act, chairmen have made changes to FCC’s bureau 

structure. In 1999 Chairman Kennard24 issued A New FCC for the 21st

Century, which called for reorganizing FCC’s bureau structure along 

functional, rather than technological, lines in order to carry out FCC’s core 

responsibilities more productively and efficiently. Subsequently, FCC 

consolidated enforcement functions and personnel from the Common 

Carrier, Mass Media, Wireless Telecommunications, and Compliance and 

Information Bureaus into a new Enforcement Bureau. In addition, FCC 

consolidated consumer complaint and public information functions of the 

various bureaus into a Consumer Information Bureau. 

Chairman Powell25 also issued a reorganization plan to promote a more 

efficient, responsive, and effective organizational structure. This reform 

and reorganization plan included creating three new bureaus and one new 

office. FCC consolidated the Mass Media Bureau and Cable Services 

Bureau into a new overarching Media Bureau, and restructured the 

Common Carrier Bureau and renamed it the Wireline Competition Bureau. 

 

24FCC Chairman, October 1997 to January 2001. 

25FCC Chairman, January 2001 to March 2005; FCC Commissioner, November 1997 to 

March 2005. 

Page 11 GAO-10-79 FCC Management
 

Additionally, the Consumer Information Bureau was given increased 

policy making and intergovernmental affairs responsibilities and was 

renamed the Consumer and Governmental Affairs Bureau. Finally, the 

Office of Strategic Planning and Policy Analysis subsumed the Office of 

Plans and Policy. 

In 2006, under Chairman Martin,26 FCC established the Public Safety and 

Homeland Security Bureau, consolidating existing public safety and 

homeland security functions and issues from the Enforcement, Wireless 

Telecommunications, Wireline Competition, and Media Bureaus, and the 

offices of Engineering and Technology, Strategic Planning and Policy 

Analysis, and Managing Director. Figure 2 shows FCC’s current structure 

and how the bureaus and offices have changed since the 

Telecommunications Act. 

 

26FCC Chairman, March 2005 to January 2009; FCC Commissioner, July 2001 to March 2005. 

Page 12 GAO-10-79 FCC Management
 

Figure 2: FCC Organization Chart and Timeline of Changes 

2006

Commissioners

Office of

Inspector General

Office of Engineering

and Technology

Office of

General Counsel

Office of

Managing Director

Office of

Media Relations

Office of

Administrative

Law Judges

Office of

Communications 

Business Opportunities

Source: GAO analysis of FCC data.

Office of

Workplace Diversity

Office of

Legislative Affairs

Wireless

Telecommunications

Bureau

Office of

Strategic Planning

and Policy Analysis

Office of

Strategic Planning

and Policy Analysis

Public Safety and

Homeland Security

Bureau

Public Safety and

Homeland Security H

Wireline

Competition

Bureau

Enforcement

Bureau

Enforcement Media Bureau

Consumer and

Governmental

Affairs Bureau

Consumer and

Governmental International

Bureau

Organization chart (patterned boxes correspond to timeline below)

Timeline

1996 1999 2000 2001 2002 2003 2004 2005

February 1996

Telecommunications 

Act signed into law • Enforcement Bureau created, 

consolidating enforcement functions 

and personnel from the Common 

Carrier, Mass Media, Wireless 

Telecommunications and 

Compliance, and Information 

Bureaus.

• Consumer Information Bureau 

created, consolidating the Office of 

Public Affairs’ Public Service and 

Reference Operations divisions, most 

of the existing Wireless 

Telecommunications and Common 

Carrier Bureau staff responsible for 

facilitating the resolution of informal 

consumer complaints, and staff from 

other bureaus responsible for 

handling public information requests.

• Consumer and Governmental 

Affairs Bureau created from 

the Consumer Information 

Bureau.

• Media Bureau created, 

consolidating Mass Media 

Bureau and Cable Services 

Bureau.

• Wireline Competition Bureau 

created, restructuring the 

Common Carrier Bureau 

including combining division 

responsibilities and collapsing six 

divisions into four: Competition 

Policy, Pricing Policy, Industry 

Analysis and Technology, and 

Telecommunications Access 

Policy.

August 1999

A New FCC for 

the 21st Century 

released

• Public Safety and 

Homeland Security 

Bureau created, 

consolidating existing 

public safety and 

homeland security 

functions and issues 

from the Enforcement, 

Wireless 

Telecommunications, 

Wireline Competition, 

and Media bureaus, 

and the offices of 

Engineering and 

Technology, Strategic 

Planning and Policy 

Analysis, and 

Managing Director. 

October 1999 October 1999 March 2002 March 2002 March 2002 March 2006 March 2006

• Office of 

Strategic 

Planning 

and Policy 

Analysis 

created, 

subsuming 

the Office of 

Plans and 

Policy, as well 

as its policy 

functions.

February 2003

Page 13 GAO-10-79 FCC Management
 

Despite these changes in FCC’s organizational structure, the changing 

telecommunications market and the development of new technologies 

have created new issues that span several bureaus. For example, 

broadband services—which became available in the late 1990s—do not fall 

exclusively within the jurisdiction of a particular FCC bureau or regulatory 

category. As a result, FCC created broadband regulations in a piecemeal 

fashion, issuing four separate orders (one for cable modems, one for 

facilities-based wireline broadband Internet access, one for broadband 

over power line, and one for wireless broadband Internet access) to 

regulate competing methods of providing broadband services by the same 

standard. The Telecommunications Act allows FCC to classify services as 

telecommunications services27 or information services,28 the latter being 

subject to fewer regulatory restrictions. In 2002, FCC determined that 

cable modem service should be categorized as an information service.29

Three years after FCC issued the cable modem order and shortly after the 

Supreme Court upheld FCC’s regulatory classification for cable modem 

service,30 FCC adopted an order that granted providers of facilities-based 

wireline broadband Internet access the same regulatory classification and 

treatment as cable modem Internet access providers.31 In November 2006, 

FCC issued an order classifying broadband over power line-enabled 

 

27Under the Telecommunications Act, telecommunications service is defined as the offering 

of telecommunications for a fee directly to the public, or to such classes of users as to be 

effectively available directly to the public, regardless of the facilities used. 47 U.S.C.§ 

153(46). Telecommunications is defined as the transmission, between or among points 

specified by the user, of information of the user’s choosing, without change in the form or 

content of the information as sent and received. 47 U.S.C. § 153(48). 

28Under the Telecommunications Act, information service is defined as the offering of a 

capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, 

or making available information via telecommunications, and includes electronic 

publishing, but does not include any use of any such capability for the management, 

control, or operation of a telecommunications system or the management of a 

telecommunications service. 47 U.S.C. § 153(20). 

29Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities; 

Internet Over Cable Declaratory Ruling; Appropriate Regulatory Treatment for 

Broadband Access to the Internet Over Cable Facilities, Declaratory Ruling and Notice of 

Proposed Rulemaking, 17 FCC Rcd 4798 (2002). 

30Brand X Internet Servs. v. FCC, 345 F.3d 1120 (9th Cir. 2003), rev’d Nat’l Cable & 

Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005). 

31Appropriate Framework for Broadband Access to the Internet over Wireline Facilities; 

Universal Service Obligations of Broadband Providers, Report and Order and Notice of 

Proposed Rulemaking, 20 FCC Rcd 14853 (2005), aff’d Time Warner Telecom. Inc. v. FCC, 

507 F.3d 205 (3d Cir. 2007). 

Page 14 GAO-10-79 FCC Management
 

Internet access service as an information service.32 In March 2007, FCC 

issued an order classifying wireless broadband Internet access as an 

information service.33 In addition, as companies that once provided a 

distinct service (such as cable and telephone companies) have shifted to 

providing bundles of services (voice, video, and data services) over a 

broadband platform, new debates have arisen regarding how rules 

previously intended for a specific industry and service (such as universal 

service, customer retention rules, and video franchising rules) should be 

applied to companies now providing multiple services. FCC officials told 

us they are currently looking across the agency to identify challenges that 

convergence poses to the existing structure and will first focus on how 

FCC’s systems, such as its data collection efforts, can be modified to 

address these challenges, but they may consider structural changes later. 

FCC Lacks Written 

Policies for Ensuring the 

Interbureau Collaboration 

and Communication 

Needed to Address 

Crosscutting Issues 

According to agency officials, FCC uses informal interbureau 

collaboration, working groups, and task forces to address convergence 

and crosscutting issues, but FCC lacks written policies outlining how 

interbureau coordination and collaboration is to occur.34 FCC handles 

convergence by holding interbureau meetings to discuss the progress of 

items and to address upcoming issues. When a crosscutting item requires 

the input of multiple bureaus or offices, one is considered the “lead” and is 

responsible for coordinating with all other bureaus or offices that have a 

direct concern or interest in the document and ensuring they have the 

opportunity to review and comment on an agenda item prior to submission 

to the commission. Generally, if a proceeding (such as a petition or draft 

order) clearly falls under a specific bureau’s purview, that bureau will 

serve as the lead on the issue. The determination of the lead bureau is 

made by each bureau’s management or by the precedence of which bureau 

 

32United Power Line Council’s Petition for Declaratory Ruling Regarding the 

Classification of Broadband over Power Line Internet Access Service as an Information 

Service, Memorandum Opinion and Order, 21 FCC Rcd 13281 (2006). 

33Appropriate Regulatory Treatment for Broadband Access to the Internet Over Wireless 

Networks, Declaratory Ruling, 22 FCC Rcd 5901 (2007). 

34FCC’s Agenda Handbook outlines the process for preparing, approving, and releasing 

decision documents at FCC and notes that “bureau/office chiefs are responsible for 

ensuring that their items are fully coordinated with other interested bureaus/offices” and 

“items should be fully coordinated with all applicable bureaus/offices before they are 

circulated to the commissioners.” The most recent full version of the handbook was issued 

in March 2000, but FCC is updating selected sections for 2009. Neither the full version of 

the handbook or the draft 2009 update is publicly available. 

Page 15 GAO-10-79 FCC Management
 

handled a particular issue in the past. For example, the Wireless 

Telecommunications Bureau would be the lead for items regarding 

licensed spectrum rules because it has handled these issues in the past. 

FCC officials told us that on more complex issues, or items that do not 

have an evident lead bureau, the chairman is ultimately responsible for 

selecting the lead bureau. Although FCC relies on this interbureau 

coordination, it does not provide specific steps or guidance regarding how 

or when this coordination is to occur, with some limited exceptions.35 FCC 

officials confirmed that there are no written policies outlining how the 

bureaus should coordinate with one another. 

FCC’s lack of written policies and its reliance on informal interbureau 

coordination to address issues that span beyond the purview of a single 

bureau can result in inefficiencies. For example, one FCC official told us 

that while FCC was conducting a merger review of two major media 

companies, the review process was delayed because of confusion 

regarding which bureau was responsible. Since each of the companies 

merging had assets regulated by different FCC bureaus, it was unclear 

which bureau was the designated lead and would be responsible for a 

specific portion of the merger review process. Although the chairman 

eventually designated a lead bureau, the time it took for this to happen 

slowed down the process, and the overall lack of coordination made the 

process less efficient. Our Internal Control and Management Evaluation

Tool36 emphasizes the importance of internal communications, specifically 

noting the need for mechanisms that allow for the easy flow of information 

 

35For example, the Agenda Handbook noted that certain bureaus and offices should be 

consulted on specific issues, such as requiring a statement that the bureau or office 

coordinated with the International Bureau on issues with an international dimension. In 

addition, according to FCC’s internal procedures, all items that raise spectrum allocation, 

technical standards, or efficiency issues should be coordinated with the Office of 

Engineering and Technology, and all items that have field enforcement consequences 

should be coordinated with the Consumer and Governmental Affairs Bureau. 

36GAO issues standards to provide an overall framework for establishing and maintaining 

internal control and for identifying and addressing major performance challenges and areas 

at the greatest risk for fraud, waste, abuse, and mismanagement. GAO, Internal Control 

Management and Evaluation Tool, GAO-01-1008G (Washington, D.C.: Aug. 1, 2001). 

Page 16 GAO-10-79 FCC Management
 

down, across, and up the organization, including communications between 

functional activities.37

In addition, the absence of written policies allows interbureau 

collaboration and communication to vary from chairman to chairman. 

FCC officials noted significant differences between prior chairmen’s 

emphasis on bureau interaction. For example, former Chairman Kevin 

Martin required staff to seek approval from management before contacting 

other bureau and office staff. Current and former FCC officials told us that 

such policies limited interbureau collaboration and staff-to-staff 

communication. By contrast, then-Acting Chairman Copps instituted a 

weekly Chairman’s Office Briefing with bureau and office chiefs, or their 

designees, and a representative from each of the commissioners’ offices 

with the stated intent of promoting openness, a practice that continues 

under Chairman Genachowski. In addition, an FCC official told us that 

under Chairman Powell, FCC had a memorandum outlining how one 

bureau was to note its concurrence or disagreement with a draft order 

prepared by another bureau, but that the practice largely lapsed under 

Chairman Martin. 

The lack of written policies also allows the chairman complete discretion 

when assigning bureau staff to address an item, leading to instances where 

all relevant staff were not included in developing an item. For example, 

according to FCC officials, the Wireless Telecommunications Bureau was 

not included in drafting a universal service order that increased the 

portion of universal service funding provided by wireless customers. FCC 

officials told us the resulting order did not fairly characterize the wireless 

industry’s prior efforts, which led the industry to file reconsideration 

petitions that required additional time to address. Other officials told us 

that in 2008, FCC received filings in its Wireline Competition Bureau and 

its Enforcement Bureau regarding allegations that Comcast was 

 

37Additionally, GAO previously found a number of practices that can help enhance and 

sustain collaboration among federal agencies that can also apply to collaboration between 

bureaus and offices. These practices include establishing compatible policies, procedures, 

and other means to operate across boundaries, identifying and addressing needs by 

leveraging resources, and agreeing on roles and responsibilities. GAO, Results-Oriented 

Government: Practices That Can Help Enhance and Sustain Collaboration among 

Federal Agencies, GAO-06-15 (Washington, D.C.: Oct. 21, 2005).

Page 17 GAO-10-79 FCC Management
 

discriminating against customers using peer-to-peer38 sharing protocols to 

exchange videos. FCC officials told us that then-Chairman Martin directed 

the Office of General Counsel to draft a resolution without coordinating or 

discussing the issue with the other bureaus and that this caused 

uncertainty in the Enforcement Bureau regarding how to address pending 

complaints. 

FCC officials and outside stakeholders stated that communication among 

bureaus is necessary for addressing convergence and other crosscutting 

issues under the current bureau structure. Three FCC officials told us that 

convergence in the telecommunications market requires FCC’s bureaus to 

actively communicate with one another so they can address issues that 

span multiple bureaus. One of these officials also noted that convergence 

makes active communication among bureaus even more important 

because if communication fails or does not take place, issues might 

inadvertently not be addressed before the information is presented to the 

commissioners and their staff. 

FCC Relies on Its 

Functional Offices to 

Address Some Aspects of 

Convergence, but the 

Chairman’s Influence Over 

These Offices Raises 

Independence Issues That 

Can Affect FCC’s Ability to 

Rely on Them 

FCC’s functional offices, such as the Office of Engineering and Technology 

(OET) and the Office of Strategic Planning and Policy Analysis (OSP), 

provide a broader scope than the platform-based bureaus and address 

some of the issues posed by convergence, but the chairman’s influence can 

affect FCC’s ability to use these offices to address crosscutting issues.39

With regard to OET, stakeholders, including commissioners and trade 

associations, have raised concerns about whether the chairman’s authority 

over office staff impacts OET’s ability to provide independent expertise. 

Two commissioners told us that although OET had high-quality staff, the 

commissioners question whether the information OET provides is 

impartial, since all bureau and office chiefs report to the chairman. One of 

the commissioners emphasized that without reliable unbiased information, 

it can be difficult to make good decisions on scientific and technical 

questions. Additionally, three trade associations also expressed concern 

 

38Peer-to-peer applications allow individual computer users to transmit data directly to 

another user, without the use of an intermediate network server. Individuals use peer-topeer applications as an alternative means of transmitting content and programs over the 

Internet. 

39This report focuses on OET and OSP because FCC officials told us these offices are 

responsible for addressing convergence and other crosscutting issues. See appendix II for a 

description of FCC’s offices and bureaus. 

Page 18 GAO-10-79 FCC Management
 

about the independent nature of OET, with one indicating that there is no 

way to tell if the information coming from OET is independent of the 

chairman or the best of several options. 

Similarly, the emphasis FCC places on OSP and the work it does varies 

according to the chairman, and in recent years, OSP’s output has 

diminished. OSP, working with the Office of Managing Director, is 

responsible for developing a strategic plan identifying short- and long-term 

policy objectives for the agency; working with the chairman to implement 

policy goals; and acting as expert consultants in areas of economic, 

business and market analysis, and other subjects that cut across 

traditional lines, such as the Internet. One former chief economist told us 

that each chairman has discretion over how he will use OSP, and 

therefore, the role of the office in providing economic analyses will 

depend on whether the chairman values economic research. Another 

former chief economist noted that FCC’s emphasis on economic analysis 

depends on the chairman’s preferences. OSP is responsible for producing 

publicly available work papers that monitor the state of the 

communications industry to identify trends, issues, and overall industry 

health. However, OSP did not release any working papers between 

September 2003 and February 2008 and has not released any working 

papers since issuing three in February 2008. Given OSP’s responsibility in 

developing a strategic plan that identifies short- and long-term policy 

objectives for the agency, a lack of research can put FCC at a distinct 

disadvantage in preparing for the future. 

To address these issues, some stakeholders we spoke with suggested that 

adding more resources to OSP or creating a separate economics bureau 

would allow for more independent and robust economic analysis. One 

former chief economist told us that although the research function of FCC 

is under OSP’s purview, OSP does not have the resources needed, and 

providing additional resources would help them produce more 

independent and higher-quality analyses. A former chairman expressed 

similar concerns about OSP’s resources. Two other former chief 

economists suggested that if economists were centralized in one group or 

office, then economic analysis would have greater influence in the 

decision-making process. Similarly, a researcher found that another 

independent regulatory agency’s use of an independent and centralized 

Bureau of Economics leads to routine use of cost-benefit analysis during 

Page 19 GAO-10-79 FCC Management
 

its investigations and enforcement actions.40 Finally a trade association 

told us that OSP has always been on the periphery of the policy-making 

process because it lacks the budget and staff levels to complete 

comprehensive industry analysis, and that OSP needs additional resources 

to perform more useful policy analysis. 

While some stakeholders have suggested consolidating economists in a 

centralized bureau, others have noted the need to maintain economic 

expertise within the bureaus. Officials from each bureau we spoke with 

told us having economists imbedded in each bureau was useful because it 

allows the bureaus to access economic expertise more easily. For 

example, economists may lead teams on particular issues, review mergers, 

gather subscriber data, create economic development policies, manage 

industry reporting, and produce economic reports and information, and a 

bureau’s ability to function could suffer if the economists were taken out 

of the bureau. One study that examined organizational structures for 

attorneys and economists in enforcement agencies found that having 

economists and attorneys working together in the same division and 

organized around a particular industry or sector, as they do at FCC, is 

advantageous for a number of reasons.41 The study found the main 

advantage of this structure is that it focuses economic analysis on the 

questions of interest to the ultimate decision makers. Additionally, the 

strong links between economists and attorneys working in the same 

division help to ensure that economists are answering all the legally 

relevant questions and the decision makers can direct the efforts of 

economists to answer the questions that concern them. However, these 

arguments do not necessarily preclude the need to examine OSP’s role and 

determine whether it is able to address the economic implications of 

broad policy issues. 

 

40Jonathan B. Baker, “Continuous’ Regulatory Reform at the Federal Trade Commission,” 

Administrative Law Review, vol. 49 (1997): 859-874. 

41Luke M. Froeb, Paul A. Pautler, and Lars-Hendrik Röller, “The Economics of Organizing 

Economists” Vanderbilt Law and Economics Research Paper No. 08-18 (July 3, 2008). 

Available at SSRN, http://ssrn.com/abstract=1155237. 

Page 20 GAO-10-79 FCC Management
 

Little Consensus Exists on 

Whether or How to 

Restructure FCC’s Bureaus 

and Offices 

Several stakeholders have proposed a variety of options for restructuring 

FCC. One proposal is to replace industry-based bureaus with bureaus 

divided along functional goals. Some stakeholders have expressed 

concerns that FCC’s current bureau structure may lead to bureaus 

identifying with the industry they regulate, rather than taking an 

overarching view of an issue. One trade group representative and a former 

FCC chairman stated that this leads to “fiefdoms,” where the staff 

members begin to act more like advocates for the industry they are 

regulating than as experts looking for the best decision. In addition, 

stakeholders stated that the culture of the bureaus may vary—depending 

on their history and the industry they regulate—and that this could create 

problems if competing services are treated differently based on which 

bureau is responsible for regulating the service. In response to such 

concerns, some stakeholders suggested that FCC create new functional 

bureaus that focus on areas that span a variety of service providers and 

industries, such as competition, licensing, and spectrum management. For 

example, one former FCC official suggested that FCC could create one 

bureau to handle spectrum management issues, which are currently 

divided among the Wireless Telecommunications Bureau, the Office of 

Engineering and Technology, the International Bureau, and the Public 

Safety and Homeland Security Bureau. Another stakeholder suggested 

FCC structure bureaus along overarching policy goals, such as culture and 

values (which would include broad issues such as obscenity, advertising 

rules, and public broadcasting) and markets (which would include 

allocation of spectrum, competition, and market analysis). The 

stakeholder stated that by reorganizing along such lines, FCC would create 

departments with technology and industry-neutral responsibilities for key 

social mandates, which would better enable FCC to address issues that 

span industry lines. 

However, a number of stakeholders and FCC officials expressed caution 

when discussing restructuring or reforming the bureaus. Restructuring is 

often resource-intensive and disruptive for an agency and can impact staff 

morale. In addition, it is unclear whether restructuring the bureaus would 

improve FCC’s ability to regulate these industries, since the 

Communications Act, as amended, establishes different regulatory regimes 

based on how a service is provided. Some industry and FCC stakeholders 

we interviewed also noted that in some cases, the current bureau structure 

works well, such as when issues fall within a specific bureau’s purview. 

For example, one FCC official noted that in some cases, it is useful to have 

various functions housed in a specific industry-based bureau, explaining 

that since rulemaking and licensing functions are housed in the Wireless 

Telecommunications Bureau, bureau staff understand the implications of 

Page 21 GAO-10-79 FCC Management
 

administering the licensing rules made during the rulemaking process. 

Similarly, FCC officials stated that the industry-based bureaus allow staff 

to develop in-depth expertise on an issue. For example, an FCC official 

stated that the Media Bureau’s video division staff understand how to 

address most broadcast licensing and market issues and that splitting up 

the staff could result in a loss of group cohesion and institutional 

knowledge. 

Regardless of the organizational structure FCC decides to pursue, it is 

certain that technological advances and marketplace changes will 

contribute to an evolving regulatory landscape for the commission. To 

anticipate and quickly respond to these changing conditions, FCC will 

need mechanisms to ensure that staff can routinely and reliably coordinate 

and communicate across bureaus in order to foster and harness FCC’s 

collective knowledge on issues that span the bureaus. The absence of 

written policies outlining how bureaus should communicate and 

collaborate on crosscutting issues has led to inefficiencies in FCC’s 

decision-making process by leaving the extent to which interbureau 

collaboration occurs subject to the preferences of the chairman. 

Page 22 GAO-10-79 FCC Management
 

Weaknesses in FCC’s 

Processes for 

Collecting and Using 

Information Can 

Undermine the 

Transparency and 

Effectiveness of the 

Decision-Making 

Process 

Inconsistent Policies 

Regarding Commissioner 

Access to Bureau and 

Office Analyses Raise 

Concerns about the 

Transparency and 

Effectiveness of the 

Decision-Making Process 

FCC chairmen have varied in their policies regarding commissioner access 

to bureau and office analyses during the decision-making process. For 

example, then-Acting Chairman Copps publicly stated that commissioners 

would have unfettered access to the bureaus, adding that bureaus should 

respond to requests from commissioners’ offices directly and as quickly as 

possible, without preapproval from the chairman’s office.42 In addition, 

former Chairman Kennard established internal procedures outlining how 

commissioners should receive information from bureaus and offices 

during the decision-making process.43 These procedures specified that 

bureau and office chiefs would provide detailed oral briefings or 

memoranda on upcoming items upon the request of commissioners and 

would solicit feedback from commissioners while developing draft items. 

Under Chairman Martin, there was a perception among some FCC 

commissioners and staff that the commissioners could not easily access 

bureau and office analyses. Stakeholders also told us that some previous 

chairmen had similarly limited commissioner access to bureau and office 

analyses. One rationale behind such policies was that giving the 

commissioners unrestricted access to agency staff could hinder the 

decision-making process by allowing commissioners to search for support 

among the bureau staff for any given position. Similarly, some 

stakeholders expressed concerns about providing commissioners full 

 

42Michael J. Copps, Remarks of Acting Chairman Michael J. Copps to the Federal 

Communications Commission Staff (Washington, D.C., Jan. 26, 2009). 

43William E. Kennard, Memorandum on Decision-Making Procedures (Washington, D.C., 

Jan. 15, 1998). 

Page 23 GAO-10-79 FCC Management
 

access to bureau staff. For example, one FCC official recounted prior 

instances in which commissioners requested information that placed 

bureau staff in the middle of commission-level policy disputes, and a 

former FCC official expressed concerns about commissioners making 

requests that could tie up bureau resources. 

No explicit statutory or regulatory language exists that outlines 

commissioners’ access to internal information. The Communications Act, 

as amended, states that it is the duty of the chairman to coordinate and 

organize the work of the commission in such a manner as to promote 

prompt and efficient disposition of all matters within the jurisdiction of 

the commission.44 In implementing this, FCC’s chairman sets the agency’s 

agenda by directing the work of the bureaus and offices to include drafting 

agenda items for commission consideration. While FCC’s Agenda 

Handbook does specify that the bureaus and offices should provide 

commissioners copies of draft items for consideration and editing 3 weeks 

before the commission votes on the item at a public meeting, it does not 

specify the extent to which commissioners have access to the bureau and 

office staff and their analyses, including their ability to ask the staff 

questions about draft items or the analyses supporting those items. The 

absence of internal policies or statutory requirements has enabled each 

chairman to define how and when other commissioners receive bureau 

and office analyses during the decision-making process. 

Controlling commissioner access to staff analysis and opinions may 

subvert the commission decision-making process and raises concerns 

among FCC officials and external stakeholders regarding the transparency 

and informed nature of the decision-making process. Many stakeholders 

we interviewed, including former FCC officials and current FCC 

commissioners and bureau officials, noted the importance of bureau 

analyses to the commission’s decision-making process, with some stating 

that commissioners’ lack of access to bureau analyses can negatively 

impact the quality of FCC’s decisions. Two bureau officials explained that 

providing commissioners access to information improves FCC’s decisions 

by allowing for more informed deliberations. FCC officials also told us 

that in situations where commissioners are unable to access information 

from the bureaus and offices, commissioners may refuse to vote on an 

item, thereby delaying decision making. The ability of the chairman to 

exert control over the bureau and office analyses provided to 

 

4447 U.S.C. § 155. 

Page 24 GAO-10-79 FCC Management
 

commissioners has raised concerns as to whether the information 

provided reflects the bureaus’ and offices’ independent analyses or the 

chairman’s position on an issue. In addition, a current and a former 

commissioner stated that the chairman’s ability to influence what 

information FCC staff provided to commissioners increased the 

commissioners’ reliance on outside sources of information. The former 

commissioner noted that this raises concerns about the quality of 

information the commissioners may rely on and the transparency of the 

decision-making process, since private groups may be providing data that 

supports a particular agenda. 

Regulatory bodies headed by multimember commissions, such as FCC, are 

often advocated and preferred over a department or agency headed by a 

single administrator because group decision making under conditions of 

relative independence is preferable to dominance by a single individual. 

For example, a major review of independent regulatory agencies 

concluded that a distinctive attribute of commission action is that it 

requires concurrence by a majority of members of equal standing after full 

discussion and deliberation, and that collective decision making is 

advantageous where the problems are complex, the relative weight of 

various factors affecting policy is not clear, and the choices are 

numerous.45 Another study promoted the use of the commission structure 

for FCC in particular, stressing that the commission prevents a single 

administrator from having undue influence over the sources of public 

information.46 We have also recognized the need to provide decision 

makers with the information needed to carry out their responsibilities. Our 

internal control standards state that information should be recorded and 

communicated to management and others within the entity who need it 

and in a form and within a time frame that enables them to carry out their 

responsibilities.47

 

45The U.S. Commission on Organization of the Executive Branch of Government, “The 

Independent Regulatory Agencies: A Report With Recommendations” (Washington, D.C., 

1949). 

46The President’s Advisory Council on Executive Organization, “A New Regulatory 

Framework: Report on Selected Independent Regulatory Agencies” (Washington, D.C., 

1971). 

47GAO, Standards for Internal Control in the Federal Government, GAO/AIMD-00-21.3.1

(Washington, D.C.: November 1999). 

Page 25 GAO-10-79 FCC Management
 

We also reviewed the policies of other independent regulatory agencies 

with regard to commissioner access to staff analyses. Officials at the 

Federal Energy Regulatory Commission and the Federal Trade 

Commission (FTC) told us that they do not have formal policies ensuring 

commissioner access to information, but stated that commissioners have 

not experienced problems obtaining information in the past. For example, 

an FTC official told us that that the commission has had a long-standing 

practice that the commissioners have access to all of the information 

needed to perform their duties. However, the Nuclear Regulatory 

Commission (NRC) is statutorily required to ensure that commissioners 

have full access to the information needed to perform their duties and that 

commissioners share “equal responsibility and authority in all decisions 

and actions of the commission.”48 In implementing this policy, NRC has 

developed and made publicly available its decision-making procedures, 

including commissioners’ rights to information.49 These procedures outline 

the responsibilities of the chairman and the commissioners, how 

commissioners receive items from commission staff, and how items are 

voted on. Some of the key ways in which NRC’s procedures provide 

commissioners access to information include: 

• Requiring that draft and final analyses by NRC staff are simultaneously 

provided to all commissioners, including the chairman. 

• Establishing that each commissioner, including the chairman, has equal 

responsibility and authority in all commission decisions and actions, and 

has full and equal access to all agency information pertaining to 

commission responsibilities. 

• Balancing commissioner access to staff analyses with the ability of the 

chairman to direct resource expenditures. For example, although 

individual commissioners can request information or analyses from NRC 

staff, if the request requires significant resources to fulfill and questions of 

priority arise, the office or the commissioner can request the chairman 

resolve the matter. If the chairman’s decision is not satisfactory to the 

requesting commissioner or the office, either can bring the matter for a 

vote before the full commission. 

 

4842 U.S.C. § 5841(a)(1). 

49Nuclear Regulatory Commission, Internal Commission Procedures (online), 

http://www.nrc.gov/about-nrc/policy-making/internal.html (last updated August 4, 2006). 

Page 26 GAO-10-79 FCC Management
 

NRC officials told us that these long-standing internal procedures, which 

are reviewed approximately every 2 years, have been helpful in avoiding 

protracted disputes over the prerogatives and responsibilities of the 

chairman and the other commissioners and ensuring that access issues are 

handled consistently. 

Stakeholders Have Raised 

Concerns about FCC’s 

Collection of Information 

during the Rulemaking 

Process 

When issuing an NPRM to gather public input before adopting, modifying, 

or deleting a rule, FCC rarely includes the text of the proposed rule in the 

notice, which may limit the effectiveness of the public comment process. 

A 2008 FCC draft order noted that during the period 1990 through 2007, 

the commission issued approximately 3,408 NPRMs, 390 (or 11.4 percent) 

of which contained the text of proposed rules under consideration. 

According to A Guide to Federal Agency Rulemaking, a resource guide 

created by the Administrative Law and Regulatory Practice and 

Government and Public Sector Lawyers Division of the American Bar 

Association,50 “most agencies publish the text of the proposed rule when 

commencing rulemaking, and some enabling statutes expressly require 

that the agency do so.”51 Widespread concern exists regarding the lack of 

details provided in FCC’s NPRMs, which generally ask for comment on 

wide-ranging issues, making the NPRM more like a Notice of Inquiry 

(NOI). FCC officials told us that FCC uses NPRMs rather than NOIs (the 

traditional method of gathering broad input on a topic) so that it can 

proceed directly to issuing a rule once one is developed. By contrast, if 

FCC used an NOI to gather information, then it would need to issue an 

NPRM before issuing a rule. Several stakeholders have stated that such 

broad NPRMs limit their ability to submit meaningful comments that 

FCC Typically Does Not 

Include the Text of a Proposed 

Rule in Its NPRMs, Which May 

Limit the Effectiveness of the 

Public Comment Process 

 

50Jeffrey S Lubbers, A Guide to Federal Agency Rulemaking, 4th ed. (Chicago, Ill.: 

American Bar Association, 2006). 

51Lubbers, A Guide, p. 279, Federal Trade Commission Act, 15 U.S.C. §57 a(b)(1)(A) 

(stating that an agency must “publish a notice of proposed rulemaking including with 

particularity the text of the rule including any alternatives which the commission proposes 

to promulgate; and the reasons for the proposed rule”). 

Page 27 GAO-10-79 FCC Management
 

address FCC’s information needs and increase FCC’s reliance on 

information provided in ex parte contacts. For example, the Small 

Business Administration’s (SBA) Office of Advocacy noted its concerns 

about FCC’s use of NPRMs instead of NOIs to collect broad information on 

a number of issues.52 It argues that by issuing an NPRM that lacks specific 

proposals, the FCC creates uncertainty in the industry, resulting in 

thousands of comments that can only speculate as to what action the FCC 

may take and the potential impacts. SBA’s Office of Advocacy adds that 

small businesses, in particular, are often overwhelmed by the scope of a 

vague NPRM and cannot contribute meaningfully to the rulemaking 

process. In addition, part of the value of the public comment process is 

derived from external stakeholders’ ability to respond to other groups’ 

comments, thereby improving the public debate on an item. However, if 

parties are unsure of FCC’s intentions due to a lack of specificity in the 

NPRM and they submit general comments or wait until the ex parte 

process to provide input on an item, public debate can be limited. 

The APA requires that an NPRM include “either the terms or substance of 

a proposed rule or a description of the subjects and issues involved.”53

Since the public is generally entitled to submit their views and relevant 

data on any proposals, the notice must be sufficient to fairly apprise 

interested parties of the issues involved, but it need not specify every 

precise proposal which the agency may ultimately adopt as a rule.54 APA’s 

requirements are satisfied when the rule is a “logical outgrowth” of the 

 

52Small Business Administration, Office of Advocacy, RE: ex parte Presentation in a NonRestricted Proceeding, Initial Regulatory Flexibility Analysis for 2002 Biennial Review – 

Review of the Commission’s Broadcast Ownership Rules, MB Dkt. No. 02-277 (Washington, 

D.C., Apr. 9, 2003). 

535 U.S.C. § 553(b)(3). 

54Action for Children’s Television v. FCC, 564 F.2d 458, 470 (D.C. Cir. 1977) (internal 

quotation marks and citations omitted). 

Page 28 GAO-10-79 FCC Management
 

actions proposed, which means that interested parties “should have 

anticipated the agency’s final course in light of the initial notice.”55

Although APA does not specifically require that NPRMs contain proposed 

rule text, some studies of federal rulemaking have identified the benefits 

of providing proposed rule text for public comment. For example, A Guide 

to Federal Agency Rulemaking notes that “specific proposals help focus 

public comment, and that, in turn, assists reviewing courts in deciding 

whether interested persons were given a meaningful opportunity to 

participate in the rulemaking ... a focused and well-explained NPRM can 

educate the public and generate more helpful information from interested 

persons.”56 Similarly, in its analyses of transparent governing and public 

participation in the rulemaking process, ICF International57 recommended 

that agencies garner more substantive public comments by issuing an 

Advanced Notice of Proposed Rulemaking that lays out specific options 

under consideration and asks specific questions that are linked to a Web 

form.58

Several stakeholders, including officials at FCC, have recognized that the 

lack of details in NPRMs is an issue and have proposed changes. A 2008 

FCC draft order59 advocated that FCC publish the text of proposed rules in 

 

55See Long Island Care At Home, LTC v. Evelyn Coke, 551 U.S. 158, 174 (2007). (The APA 

his 

e

ir 

requires an agency conducting notice-and-comment rulemaking to publish in its NPRM 

“either the terms or substance of the proposed rule or a description of the subjects and 

issues involved.” 5 U.S.C. § 553(b)(3). The Courts of Appeals have generally interpreted t

to mean that the final rule the agency adopts must be “a ‘logical outgrowth’ of the rule 

proposed.” National Black Media Coalition v. FCC, 791 F.2d 1016, 1022 (CA2 1986). Se

also, e.g., United Steelworkers of America, AFL-CIO-CLC v. Marshall, 208 U.S. App. D.C.

60, 647 F.2d 1189, 1221 (CADC 1980), cert. denied sub nom. Lead Industries Asso. v. 

Donovan, 453 U.S. 913, 101 S. Ct. 3148, 101 S. Ct. 3149, 69 L. Ed. 2d 997 (1981); South 

Terminal Corp. v. EPA, 504 F.2d 646, 659 (CA1 1974). The object, in short, is one of fa

notice.) 

56Lubbers, A Guide, pp. 280, 292. 

57ICF International is a global professional services firm that partners with government and 

commercial clients to deliver consulting services and technology solutions in energy, 

climate change, environment, transportation, social programs, health, defense, and 

emergency management. 

58Gary Light, Will Baird, and David Bruce, Transparent Governing: Applying Information 

Technology to Improve Public Involvement in Rulemaking, a report prepared by ICF 

International, 2008, p.4. 

59According to an FCC official, this draft order was created in response to a request from 

then-Chairman Kevin Martin, but it was not circulated to the other commissioners. 

Page 29 GAO-10-79 FCC Management
 

NPRMs to better inform the debate about matters under commission

consideration and to increase FCC’s accountability to the American

public. A current and a former commissioner we interviewed also 

suggested that FCC publish the proposed rules for comment in its NPR

stressing the importance of the information provided in NPRMs in the

decision-making process. For example, in a letter proposing various 

reforms to incoming Chairman Genachowski, Commissioner McDowell 

noted the need for NPRMs to include proposed rules, stating this would 

benefit Congress, the public, and the other commissioners. In addition, 

trade organizations sent letters to the Presidential Transition Task Team 

supporting the inclusion of proposed rule text in FCC’s NPRMs. In April 

2009, Representatives Joe Barton and Cliff Stearns introduced H.R. 21

which proposed a number of FCC reforms, including provisions that 

require the agency to publish the specific language of any proposed 

adoption, modification, or deletion of regulations, and provide the

30 days to submit comments and another 30 days to submit reply 

comments before the comm

Ms, 

83, 

 public 

ission acts on the proposed adoption, 

modification, or deletion.60

 to 

er 

se 

ul in 

 

In addition, some stakeholders have suggested that FCC should rely more 

heavily on its administrative law judges61 to develop a record on which

base decisions. These stakeholders stated that by allowing parties to 

cross-examine one another, and to testify and submit evidence under oath, 

administrative law judge proceedings would ensure the commission was 

basing its decisions on tested facts and data. However, officials from oth

commissions that use administrative law judges noted that while the

proceedings are useful for addressing factual disputes, such as rate 

disputes or contesting charges of law violations, they are not usef

making policy decisions because they are too legalistic and timeconsuming. An official in FCC’s Office of General Counsel expressed 

concern about the usefulness of administrative law judges in a rulemaking

60 H.R. 2183, 111th Cong. (2009). 

61An administrative law judge, appointed under the APA, presides at a hearing during which 

documents and sworn testimony are received in evidence and witnesses are crossexamined. At the conclusion of the evidentiary phase of a proceeding, the presiding 

administrative law judge writes and issues an initial decision which may be appealed to the 

commission. FCC currently has one administrative law judge, and the Office of 

Administrative Law Judges issued three initial decisions from 2005 to 2007. FCC told us 

that during that time period, the two administrative law judges at FCC also issued at least 

three settlement decisions each year and handled cases for the Bureau of Alcohol, 

Tobacco, Firearms and Explosives and for U.S. Customs and Border Protection. 

Page 30 GAO-10-79 FCC Management
 

proceeding, noting that stakeholders generally submit policy argum

rather than arguments about factual issues. In addition, while the 

rulemaking process allows for a large number of parties to sub

comments, an administrative law judge proceeding could not 

accommodate the same volume of participants and would require that 

FCC decide which parties should participate in cross-examining witnesse

and evidence. In addition, an official in FCC’s Office of General Counsel 

and other stakeholders raised concerns that the process could lengthe

the decision-making process an

ents, 

mit 

s 

n 

d would require that FCC increase its 

administrative law judge staff. 

rte 

s 

f its 

ta or 

ussed 

ocess of 

reviewing and potentially changing the ex parte process. 

als to 

 

FCC’s current ex parte process can lead to vague or last-minute ex pa

summaries of meetings between FCC and external officials. The APA 

places no restriction on ex parte communication between agency decision 

makers and other persons during informal rulemaking. However, FCC ha

rules about such contacts that are intended to protect the fairness o

proceedings by providing an assurance that FCC decisions are not 

influenced by off-the-record communications between decision makers 

and others. Stakeholders must provide FCC with two copies of written

ex parte presentations and the original and a copy of a summary of the 

new information provided during oral ex parte contacts to be filed in the

public record. FCC places the burden of preparing and ensuring that an

ex parte summary is complete on the external party.62 FCC’s ex parte rules

provide general guidance on what is sufficient, stating that the summaries 

should generally be “more than a one or two sentence description” and not 

just a listing of the subjects discussed.63 When it is unclear whether da

arguments presented in an ex parte contact are already in the public 

record, FCC advises that parties briefly summarize the matters disc

at the meeting. FCC officials told us that they are in the pr

Weaknesses in FCC’s ex parte 

y 

y 

FCC’s Decision-Making Process 

Process Have Negativel

Impacted Stakeholder 

Perceptions of Transparenc

and Public Participation in 

However, stakeholders expressed concerns about the submission of vague

ex parte summaries under the current process. For example, an ex parte 

summary may simply state that an outside party met with FCC offici

62As previously noted, in permit-but-disclose proceedings, ex parte presentations by 

members of Congress or their staffs and other federal agencies or their staffs need be 

disclosed only if they are of substantial significance and clearly intended to affect the 

ultimate decision in the proceeding. Disclosure of ex parte presentations by members of 

Congress or their staffs and other federal agencies or their staffs will generally be made by 

the commission’s staff. 

6347 C.F.R. § 1.1206(b)(2). 

Page 31 GAO-10-79 FCC Management
 

share its thoughts on a proceeding. Stakeholders told us that vague

ex parte summaries reduce transparency and public discourse in FCC’s

decision-making process by limiting stakeholders’ ability to determine 

what information was provided in the meeting and to discuss or rebut tha

information. In 2002, an FCC commissioner stated that she believed

the “cursory [ex parte] filings that [FCC] routinely permits” are an 

apparent violation of its rules requiring more than a one or two sente

description.

t 

 that 

nce 

ies who attended a 

meeting, rather than what was said in the meeting.65

ess. 

C and 

CC 

l 

rte 

e 

retion to 

request supplemental filings if they feel that the original filing is 

 

64 Similarly, a former acting chairman noted the need to 

“enhance, or at least enforce,” FCC’s ex parte rules so that the public will

find more than a brief ex parte letter that only identif

According to FCC, the ex parte process is an important avenue for FCC in 

collecting and examining information during the decision-making proc

FCC has previously told us that it generally does not produce its own 

studies to develop a rule. Rather, FCC relies on stakeholders to submit 

information and analysis that is then placed in the docket so that FC

other stakeholders can critique the information. According to FCC 

officials, this results in both transparency and quality information because 

each stakeholder has had an opportunity to review and comment on all of 

the information in the docket. In addition, according to an official in FCC’s 

Office of General Counsel, ex parte meetings allow stakeholders and F

to focus on specific issues of interest to FCC and to identify potentia

weaknesses in the existing arguments. An official in FCC’s Office of 

General Counsel recognizes concerns that some ex parte summaries are 

cursory and vague and noted that to address this, FCC periodically sends 

reminders to commenters regarding the information required in ex pa

summaries and has placed additional information about the required

information on FCC’s Web site. In 2000, FCC issued a public notice 

reiterating the public’s responsibilities in the ex parte process. This notic

stated “the duty to ensure the adequacy of ex parte notices ...rests with 

the person making the presentation. Staff members have the disc

64Kathleen Q. Abernathy, “My View from the Doorstep of FCC Change,” Federal 

Communications Law Journal, vol. 54, no. 2 (2002): 219. 

65Michael J. Copps, “Remarks of Acting FCC Chairman Michael J. Copps,” FCBA Seminar: 

The Communications Act and the FCC at 75, (Washington, D.C., Feb. 24, 2009). 

Page 32 GAO-10-79 FCC Management
 

inadequate, but the obligation to file a sufficient notice must be satisfied 

regardless of possible requests by the staff.”66

FCC does not proactively determine whether the content of the summaries 

is sufficient. Specifically, FCC relies on a complaint-driven process to 

ensure that ex parte submissions comply with FCC’s rules. FCC’s Office of 

General Counsel reviews ex parte communications if it receives a 

complaint.67 However, since the parties not present at the meeting are 

generally unsure as to what occurred, it is difficult for external 

stakeholders to determine whether an ex parte submission is sufficiently 

detailed. In addition, it can be difficult to determine if an ex parte 

summary is sufficient, because if a party is simply restating information it 

has already presented, then it can file a short ex parte summary or none at 

all. After the Office of General Counsel receives a complaint, it provides 

copies to the party referred to in the complaint and to the FCC staff 

present during the meeting, and the parties provide a written response to 

the office about their version of events. The Office of General Counsel is 

responsible for determining whether the issue has been appropriately 

resolved. FCC receives, on average, one complaint a month about ex parte 

communications. 

Other aspects of the ex parte process can challenge stakeholders’ ability 

to submit information during FCC’s decision-making process. For 

example, one group noted that unlike public comments, which must be 

submitted by a specific deadline, the ex parte process does not have a 

definitive end date and groups must expend their resources tracking

ex parte submissions until the relevant item is voted on by the 

commission. In addition, stakeholders must attempt to determine what 

information was provided based on summaries of the ex parte meeting 

and submit written responses or attempt to meet with FCC officials to 

offer a countervailing viewpoint. This can present a particular burden for 

stakeholders with limited resources for tracking and responding to

ex parte contacts. For example, two organizations told us that it is more 

difficult for groups that must travel to Washington, D.C., to participate in 

person at ex parte meetings than for groups with a presence inside 

Washington. One organization told us of instances in which FCC canceled 

 

66Commission Emphasizes the Public’s Responsibilities in Permit-But-Disclose 

Proceedings, Public Notice, 15 FCC Rcd 19945 (2000). 

6747 C.F.R. §0.251(g). 

Page 33 GAO-10-79 FCC Management
 

meetings with them at the last minute, after the group traveled from 

outside of Washington, D.C, to meet with FCC. 

Several stakeholders also raised concerns regarding prior incidents in 

which parties made substantive ex parte submissions just before or during 

the Sunshine period, during which external contact with FCC officials is 

restricted, and thus, other groups are unable to respond to the information 

provided. Although, subject to certain exceptions, external parties are 

forbidden from contacting FCC officials after release of the Sunshine 

Notice (generally 1 week prior to a vote), FCC officials are allowed to 

initiate contact with external parties for additional information on an 

agenda item. This can lead to ex parte submissions affecting decisions 

without allowing for public comment on the information provided. For 

example, during the AT&T BellSouth merger review, an ex parte 

communication occurred the day before the scheduled vote. During the 

communication, FCC proposed merger conditions and the ex parte 

summary was filed the day of the proposed vote, thus preventing public 

comment and expert review. However, in response to complaints from the 

other commissioners, Chairman Martin delayed the merger vote to allow 

for public comment on the new changes. An official in FCC’s Office of 

General Counsel told us that there are legitimate concerns about 

stakeholders’ ability to respond to ex parte presentations made during the 

Sunshine period, pursuant to a Sunshine period exception, but added that 

if this occurs, stakeholders can request to be invited by FCC officials to 

file a counter ex parte communication. Finally, although parties are 

required to file a summary of ex parte contacts with FCC’s Secretary, all 

commissioners may not receive a copy of this summary. For example, if a 

paper copy is filed shortly before a scheduled vote, there may not be 

adequate time for the summary to be scanned and placed in the public 

record. FCC officials told us that there is currently no mechanism for 

notifying commissioners that ex parte summaries have been filed and 

added that commissioners rely on the public record to identify this 

information. 

Other federal agencies have implemented different guidelines for the

ex parte process. For example, the Department of Transportation (DOT) 

issued an order and accompanying procedures, noting the importance of 

providing interested members of the public adequate knowledge of 

contacts between agency decision makers and the public during the 

rulemaking process. DOT establishes that if such contact occurs prior to 

the issuance of an NPRM and is one of the bases for the issuance of the 

NPRM, the contact should be discussed in the preamble of the notice. In 

addition, although DOT recommends holding such contact to a minimum 

Page 34 GAO-10-79 FCC Management
 

after the close of the reply comment period, noting that contacts occurring 

at this stage of the process tend to be hidden, DOT states that if such 

contacts do occur, the meeting should be announced publicly or all 

persons who have expressed interest in the rulemaking should be invited 

to participate. In addition, DOT requires that records of such contacts be 

promptly filed in the public record and states that while a verbatim 

transcript is not required, a mere recitation that the listed participants met 

to discuss a named general subject on a specified day is inadequate. 

Rather, DOT notes that such records should include a list of the 

participants, a summary of the discussion, and a specific statement of any 

commitments made by department personnel. 

Officials from FTC told us that the agency personnel are responsible for 

submitting ex parte communications in writing to the FTC Secretary so 

that they can be placed on the public record.68 NRC officials told us that if 

comments submitted after the public comment period raise a significant 

new idea, NRC would place those comments in the record and might 

reopen the comment period to get reactions to the submission. NRC 

officials also noted that when NRC issues a request for public comments, 

comments received after the due date will be considered if it is practical to 

do so, and that NRC does reopen or extend a comment period to give 

people more time to consider complex issues. 

Stakeholders concerned about FCC’s current ex parte process have 

suggested a number of changes. Some of the suggestions included 

enhancing FCC’s guidelines regarding ex parte summaries to include 

requiring that FCC officials reject incomplete ex parte summaries or 

requiring them to certify that the ex parte summaries they receive 

accurately capture the substance of the information provided in meetings, 

improving FCC’s enforcement of its ex parte requirements, and limiting 

FCC’s use of last-minute ex parte contacts to inform its decisions. An FCC 

official noted that one possible solution to ex parte submissions made 

during the Sunshine period would be to create an automatic right to 

respond for other stakeholders, but added that allowing for more contact 

during the Sunshine period would run counter to the idea of establishing a 

quiet period for the commissioners to consider an issue before voting. 

FCC is currently in the process of considering possible revisions to its

ex parte policies and is exploring new methods of collecting public 

 

68FTC’s regulations regarding the permissibility of ex parte contacts vary depending on the 

type of proceeding. 

Page 35 GAO-10-79 FCC Management
 

comment. One method under consideration includes collecting comments 

through its www.broadband.gov Web site, which allows members of the 

public to comment on a blog, request ex parte meetings, and obtain 

information about upcoming workshops. On October 28, 2009, FCC held a 

workshop on improving disclosure of ex parte contacts, during which 

participants discussed possible revisions to FCC’s current ex parte rules 

and processes. 

Some Academic and 

Industry Stakeholders 

Think FCC’s Merger 

Review Process Allows the 

Agency to Implement 

Policy Decisions Outside 

of the Rulemaking Process 

Some academic and industry stakeholders have voiced concerns that 

FCC’s merger review process allows the agency to implement policy 

decisions without going through the rulemaking process. Companies 

holding licenses issued by FCC and wishing to merge must obtain approval 

from two federal agencies: the Department of Justice (DOJ)69 and FCC, 

which do not follow the same standards when reviewing mergers. While 

DOJ is charged with evaluating mergers through an antitrust lens, FCC 

examines proposed mergers under its Communications Act authority to 

grant license transfers. The act permits the commission to grant the 

transfer only if the agency determines that the transaction would be in the 

“public interest, convenience, and necessity.”70 A recent Congressional 

Research Service report noted that the public interest standard is 

generally considered broader than the competition analysis authorized by 

the antitrust laws and conducted by DOJ.71 The report concludes that the 

commission possesses greater latitude to examine other potential effects 

of a proposed merger beyond its possible effect on competition in the 

relevant market. In addition, FCC negotiates and enforces voluntary 

conditions on license transfers under the authority provided by §303(r) of 

the Communications Act,72 which grants the commission the authority to 

“prescribe such restrictions and conditions, not inconsistent with the law, 

as may be necessary to carry out the provisions” of the act, and §214(c),73

which grants the commission the power to place “such terms and 

 

69Although DOJ generally will investigate telecommunications mergers, FTC may, in certain 

circumstances, investigate the proposed merger. 

7047 U.S.C. §214(a) and §310(d). 

71Congressional Research Service, Merger Review Authority of the Federal 

Communications Commission (Washington, D.C., 2009). 

7247 U.S.C. §303(r). 

7347 U.S.C. § 214(c). 

Page 36 GAO-10-79 FCC Management
 

conditions as in its judgment the public convenience and necessity may 

require.” 

Several stakeholders told us that FCC has used its merger review authority 

to get agreements from merging parties on issues that affect the entire 

industry and should be handled via rulemaking, rather than fashioning 

merger-specific remedies. Stakeholders argue that this may lead to one set 

of rules for the merged parties and another set of rules for the rest of the 

industry. For example, rather than using an industry-wide rulemaking to 

address the issue of whether local telephone companies should be 

required to provide Digital Subscriber Line (DSL) service74 without 

requiring telephone service, FCC imposed this requirement solely on 

AT&T and Verizon during merger reviews.75 One stakeholder stated that by 

addressing broad policy issues through merger reviews rather than 

rulemakings, FCC is limiting public insight and participation in the 

regulatory process. Other stakeholders argue that FCC’s merger review 

process provides a needed public interest perspective. 

In addition to concerns about FCC’s merger review process, there are also 

concerns about how FCC enforces its merger conditions. For example, 

one observer noted that despite requests from consumer groups such as 

Media Access Project and Public Knowledge, FCC declined to adopt 

specific enforcement mechanisms to ensure compliance with a series of 

conditions imposed during the merger review of XM and Sirius, including 

an “a la carte”76 mandate and a requirement to provide noncommercial 

 

74DSL is a technology commonly used by local telephone carriers for providing high-speed 

AT&T Inc. and BellSouth Corporation Application for Transfer of Control, 

ons, Inc. 

n 

data services by electronically enhancing conventional copper telephone voice line, 

enabling it to simultaneously provide both voice and high-speed data traffic. 

75

Memorandum Opinion and Order, 22 FCC Rcd 5662 (2007); SBC Communicati

and AT&T Corp. Applications for Approval of Transfer of Control, Memorandum Opinio

and Order, 20 FCC Rcd 18290 (2005) (“SBC/AT&T Order”); Verizon Communications Inc. 

and MCI, Inc. Applications for Approval of Transfer of Control, WC Docket FCC 06-189 

(rel. March 26, 2007); Verizon Communications Inc. and MCI, Inc. Applications for 

Approval of Transfer of Control, Memorandum Opinion and Order, 20 FCC Rcd 18433 

(2005). 

76The “a la carte” option allows consumers to subscribe to and pay for only the 

programming they choose. 

Page 37 GAO-10-79 FCC Management
 

channels.77 FCC officials told us that each bureau is responsible for 

ensuring merger conditions are adhered to. 

FCC Faces a Number 

of Workforce 

Challenges but Does 

Not Track the 

Progress of Its Efforts 

to Address Those 

Challenges 

Declines in the Number of 

FCC Engineering and 

Economic Staff and Large 

Numbers of RetirementEligible Staff May Impact 

FCC’s Ability to Meet Its 

Mission 

As part of the general decrease in FCC staff that occurred from fiscal year 

2003 to 2008, the number of engineers and economists at FCC declined. 

(See fig. 3.) From fiscal year 2003 to 2008, the number of engineers at FCC 

decreased by 10 percent, from 310 to 280. Similarly, from fiscal year 2003 

to 2008, the overall number of economists decreased by 14 percent, from 

63 to 54. Although the number of engineers and economists has decreased 

from 2003 to 2008, the percentage of the workforce comprised of 

engineers and economists remained the same. 

 

77Philip J. Weiser, “FCC Reform and the Future of Telecommunications Policy,” paper 

presented at Reforming the FCC conference held by Public Knowledge and Silicon 

Flatirons at the National Press Club, Washington, D.C., January 5, 2009. The paper is 

available online at http://fcc-reform.org/paper/fcc-reform-and-future-telecommunicationspolicy. 

Page 38 GAO-10-79 FCC Management
 

Figure 3: Changes in the Number of Economists, Engineers, and Other Staff 

Employed at FCC 

Staff

Fiscal years

Economists

Engineers

All other staff

Source: GAO analysis of FCC data.

0

250

500

750

1,000

1,250

1,500

1,750

2,000

2,250

2003 2004 2005 2006 2007 2008 

1646

1574 1517 1496 1465 1466

310

300 285 268 273 280

63

62

56 57 56 54

The overall decline in the number of key occupational staff occurred 

during a period of increased need for technical, economic, and business 

expertise. New technologies, such as rapid growth in handheld and 

wireless devices, are challenging existing regulatory structures. FCC also 

cited a number of economic issues that impact the expertise and 

workforce required, such as marketplace consolidation and the need to 

craft economic incentives for incumbent spectrum users to relocate to 

other spectrum. 

Additionally, 24 percent of FCC staff responses to the 2008 Office of 

Personnel Management (OPM) Federal Human Capital Survey disagreed 

with the statement “the skill level in my work unit has improved in the last 

year.” This was significantly more than the 17 percent of staff from all 

other agencies responding to the survey who disagreed with the statement. 

Similarly, several stakeholders we interviewed echoed the importance of 

increasing the level of expertise in certain areas at FCC and cited concerns 

regarding insufficient numbers of staff. 

Page 39 GAO-10-79 FCC Management
 

In addition to the decrease in engineers and economists, FCC faces 

challenges in ensuring that its workforce remains experienced and skilled 

enough to meet its mission, including a large number of staff who will be 

eligible for retirement.78 FCC estimates that 45 percent of supervisory 

engineers are projected to be eligible for retirement by 2011. While FCC 

has started hiring a larger number of engineers to replace retiring 

engineers and augment its engineering staff, most hires have been at the 

entry level. Of the 53 engineers hired in fiscal years 2007 and 2008, 43 were 

entry-level hires. During this same period, 30 engineers retired. 

Stakeholders stated that recent graduates sometimes have little 

experience or understanding of how policies affect industry. Increasing 

the number of staff with backgrounds and experience in industry would 

help improve FCC’s understanding of industry issues and can lead to 

better policies, according to stakeholders. For economists, FCC faces an 

even higher share of staff eligible for retirement by 2011. FCC reports that, 

as of April 2009, 67 percent of supervisory economists will be eligible to 

retire,79 as shown in table 1. FCC may face challenges in addressing these 

impending retirements because 56 percent of nonsupervisory economists 

are also eligible to retire, and FCC has not hired any economists in fiscal 

years 2007 and 2008. 

Table 1: Projected 2011 Retirement Eligibility for FCC Engineers and Economists 

Estimate as of 2011

Supervisory engineers 45%

Nonsupervisory engineers 23 

Supervisory economists 67 

Nonsupervisory economists 56 

Source: FCC data. 

 

78Although most federal employees do not retire immediately upon becoming eligible, the 

number of employees becoming retirement-eligible in the near future points to the need for 

agencies to examine how these trends will affect them. OPM data from 2008 have indicated 

that roughly half of retirement-eligible employees are likely to still be employed 4 years 

after becoming eligible. 

79According to FCC, although the number of supervisory economists eligible to retire is 

high, it is important to note that within FCC, economists are located throughout the 

bureaus and offices and are not necessarily supervised by other economists. 

Page 40 GAO-10-79 FCC Management
 

Despite these trends, it is not clear how significantly the agency has been 

impacted in its ability to meet its mission. For example, the 2008 OPM 

Federal Human Capital Survey showed that, similar to the rest of 

government, 75 percent of FCC staff agreed with the statement that the 

workforce has the knowledge and skills necessary to accomplish 

organization goals. Agency officials also noted that they can shift staff 

from one bureau to another as needs arise and the regulatory environment 

changes. For example, as the need for tariff regulation decreased, FCC 

shifted staff from that area into other areas. However, an FCC official 

indicated that with the decrease in the number of experienced engineers 

throughout the agency, more work has shifted to OET. The official added 

that if the bureaus had additional resources to recruit and retain more 

experienced engineers, then they could handle more complex issues 

within the bureau without relying on OET as much. Furthermore, 

additional engineering staff would allow the bureau to reduce the amount 

of time it takes to conduct analyses and draft items. Additionally, former 

FCC officials told us that OSP needs additional resources to fulfill its 

mission. 

Recruiting Has Been an 

Issue at FCC, and Staff 

Morale and Motivation 

Issues Could Exacerbate 

This Challenge 

FCC faces multiple challenges in recruiting new staff. One challenge FCC 

faces (similar to other federal agencies) is the inability to offer more 

competitive pay. Additionally, not having an approved budget and working 

under congressional continuing resolutions has hampered hiring efforts 

for engineers and economists. Competing priorities may also delay 

internal decisions regarding hiring. For example, OSP has not received the 

budgetary allocation for hiring new economists in time for the annual 

American Economic Association meeting for at least the past 4 years. This 

meeting is the primary recruiting venue for recently-graduated economists. 

When FCC is not able to hire economists at the annual meeting, the agency 

potentially loses out on skilled employees who have been offered 

employment elsewhere. FCC officials told us that OSP has received 

permission to attend the 2010 American Economic Association meeting 

and hire at least one economist. 

FCC also faces issues regarding the morale and motivation of its staff. 

According to the 2008 OPM Federal Human Capital Survey, FCC staff 

responses were significantly lower than other federal agencies’ staff in 

areas related to motivation, engagement, and views of senior leadership. 

(See table 2.) 

Page 41 GAO-10-79 FCC Management
 

Table 2: Comparison of FCC Responses and Responses from the Rest of the Government on Selected Items from the 2008 

OPM Federal Human Capital Survey 

Questions 

Percent of FCC 

respondents 

agreeing with 

statement

Percent of all other 

government 

respondents 

agreeing with 

statement 

Difference between 

FCC and all other 

government 

responses

Leaders generate high levels of motivation and commitment in 

the workforce. 

31 40 -9

Satisfied with the policies and practices of the organization’s 

senior leaders. 

32 42 -10

Employees have a feeling of personal empowerment with 

respect to work processes. 

33 44 -11

Arbitrary action, favoritism, and coercion for partisan purposes 

are not tolerated. 

35 48 -13

Source: GAO analysis of OPM Federal Human Capital Survey, 2008. 

Low levels of motivation, commitment, and personal empowerment may 

exacerbate the challenges FCC faces in recruiting and maintaining an 

experienced staff. For example, stakeholders told us that part of attracting 

and retaining professional staff is using and valuing their expertise. If 

expertise is not used or valued, as has occurred in some instances at FCC, 

then this can have a negative impact on FCC’s ability to recruit top 

candidates in a given professional field. FCC officials told us that in 

response to the results from the OPM Federal Human Capital Survey, FCC 

identified leadership and communication skills as areas of focus. To 

address these needs, FCC has developed an internal Web site that provides 

a forum for communication and solicitation of information, concerns, and 

suggestions from staff within FCC. In support of leadership, FCC is 

working to implement an executive leadership program for existing 

leaders and an emerging leadership training program to identify potential 

leaders within FCC and enhance their skills. 

FCC Has Implemented 

Initiatives to Recruit and 

Develop Staff and Takes 

Actions to Determine 

Expertise Needs, but It 

Does Not Track Overall 

Progress Toward Meeting 

These Needs 

FCC has instituted hiring and staff development programs designed to 

recruit new staff and develop the skills of its existing staff. While these 

programs are positive steps that can help attract, retain, and train new 

staff, it is not clear that these efforts are sufficient to address expertise 

gaps caused by retirements. Specific efforts include the following: 

• FCC University was established to provide the resources needed to 

increase the fluency of commission staff in a number of competency areas. 

Subject matter experts have been continuously and actively involved in 

Page 42 GAO-10-79 FCC Management
 

defining the training needs and evaluating, designing, and delivering 

internal courses, and in updating the courses available in the FCC 

University catalog. 

• Excellence in Engineering Program: A program that includes both 

basic and advanced courses in communications technology, a graduate 

degree program in engineering, and a knowledge-sharing program to 

increase the exchange of information among staff. The Excellence in 

Engineering award recognizes engineers, scientists, and other technical 

staff for outstanding contributions performed in the course of their 

work at the commission. 

• Excellence in Economic Analysis Program: A program to ensure staff 

is fluent in the principles of communication economics. The program 

consists of ongoing training and development opportunities targeted at, 

but not limited to, staff economists, economics training for 

noneconomists, and research tools such as data analysis software. 

Another component of the program is the Excellence in Economic 

Analysis Award, which recognizes outstanding contributions to 

economic analysis at FCC based on the impact of the contribution on 

FCC policy or its significance for the general base of knowledge in 

economics or public policy analysis. 

• Engineer in Training Program: A combined recruitment and 

accelerated promotion program designed to attract recent engineering 

graduates and provide them with accelerated promotion opportunities 

through successful completion of on-the-job training. 

FCC has also pursued a variety of strategies to address new expertise 

needs and human capital challenges. In certain cases, FCC has been able 

to use direct-hire authority, which streamlines and expedites the typical 

competitive placement process. FCC was granted direct-hire authority 

from OPM in response to congressionally-mandated requirements for a 

national broadband plan. In addition to using direct-hire authority, FCC 

used appointing authorities, which are outside of the competitive hiring 

processes, such as Recovery Act appointing authority, temporary 

consultants, and student appointments, as well as details for staff from 

other federal agencies to more quickly ramp up its broadband efforts. 

FCC also makes multiple efforts to determine the critical skills and 

competencies that are needed to achieve its mission, including meetings 

with bureau chiefs, as well as surveys of supervisors and staff. It has set 

forth occupation-specific competencies for its three key professional 

areas—engineers, attorneys, and economists. As part of FCC’s workforce 

Page 43 GAO-10-79 FCC Management
 

planning efforts, bureau and office chiefs identify, justify, and make their 

requests for positions, including the type of expertise needed, directly to 

the chairman’s office. According to FCC, the chairman’s office considers 

these requests from a commissionwide perspective, which includes the 

agency’s strategic goals, the chairman’s priorities, and other factors such 

as congressional mandates. The chairman’s office communicates the 

approval of requests directly to the bureau or office chiefs and informs the 

Office of Managing Director of the decision. Human resources works with 

bureaus and offices to implement approved hiring. 

This process can make it difficult for FCC to develop and implement a 

long-term workforce plan because workforce needs are driven by shortterm priorities and are identified by compartmentalized bureaus rather 

than by a cohesive long-range plan that considers emerging issues. In 

addition, an FCC official noted that since FCC is a small agency and 

expertise needs change quickly, a particular area could be fully staffed 

with no need for additional hiring, but if two staff leave in a short time 

period, then an expertise gap could quickly develop and new staff would 

need to be hired. FCC officials told us that, because of this, they avoid 

laying out specific targets that might be impossible or undesirable to 

achieve due to evolving needs. Additionally, FCC officials told us that due 

to its size and limited hiring opportunities, it is important for the chairman 

and senior leadership to be able to adjust the goals identified in its 

Strategic Human Capital Plan. 

Without specific targets, FCC cannot monitor and evaluate the agency’s 

progress toward meeting its expertise needs. Previously, we identified 

several key principles that strategic workforce planning should address,80

including 

• determining the critical skills and competencies that will be needed to 

achieve current and future programmatic results; 

• developing strategies that are tailored to address gaps in the number, 

deployment, and alignment of human capital approaches for enabling and 

sustaining the contributions of all critical skills and competencies; and 

 

80GAO, Human Capital: Key Principles for Effective Strategic Workforce Planning, 

GAO-04-39 (Washington, D.C.: December 11, 2003). 

Page 44 GAO-10-79 FCC Management
 

• monitoring and evaluating an agency’s progress toward meeting its human 

capital goals. 

Periodic measurement of an agency’s progress toward human capital goals 

provides information for effective oversight by identifying performance 

shortfalls and appropriate corrective actions. For example, a workforce 

plan can include measures that indicate whether the agency executed its 

hiring, training, or retention strategies as intended and achieved the goals 

for these strategies, and how these initiatives changed the workforce’s 

skills and competencies. 

FCC has made efforts to determine the skills and competencies that are 

needed to achieve programmatic goals and has developed workforce 

hiring and training strategies. In addition, FCC’s current Strategic Human 

Capital Plan identifies skills and subspecialties needed in the future 

workforce. However, FCC’s Strategic Human Capital Plan does not 

establish specific targets for these needs or measures for evaluating its 

progress in meeting these skill needs. FCC officials told us they expect to 

develop a revised Strategic Human Capital Plan in support of a new FCC 

Strategic Plan, which they anticipate completing by the end of fiscal year 

2010. Additionally, FCC is also in the process of finalizing an OPM-required 

accountability plan to accompany its Strategic Human Capital Plan. It 

remains unclear whether FCC’s actions are sufficient to ensure that it 

retains a skilled workforce that can achieve its mission in the future. 

FCC regulates the telecommunications industry—an industry that is 

critical to the nation’s economy and public safety and that directly affects 

the ways in which Americans conduct business, socialize, and get their 

news and entertainment. In recent years, the industry has rapidly evolved, 

and changing technologies have created new issues that span FCC bureaus 

and require the expertise of a variety of FCC staff. These changes highlight 

the need for FCC to ensure that its decisions are fully informed by 

promoting internal communication and coordination among various 

bureaus and offices, ensuring commissioner access to staff analyses, 

effectively collecting public input on its proposed policy changes, and 

developing methods to ensure it has the staff expertise needed to address 

these issues. However, we identified several challenges in these areas. 

Conclusions 

At the bureau and office level, FCC’s lack of written procedures for 

facilitating the flow of information within the agency has in some cases led 

to ineffective interbureau coordination and allowed prior chairmen to limit 

internal communication among staff. 

Page 45 GAO-10-79 FCC Management
 

In addition, it is unclear whether the roles of OET and OSP—two offices 

established to provide independent expertise on complex, crosscutting 

issues—are clearly defined or are overly subject to a chairman’s 

preferences. Without written interbureau coordination procedures or 

clearly defined roles and responsibilities, FCC may be limited in its ability 

to address crosscutting issues. 

At the commission level, the lack of statutory requirements or internal 

policies on commissioners’ rights and responsibilities during the decisionmaking process, including their right to bureau and office analysis, has 

allowed some chairmen to control how and when commissioners receive 

information from the bureaus and offices. Other independent regulatory 

agencies have varied in how they address this issue. Ultimately, if 

commissioners do not have adequate access to information, then the 

benefits of the commission structure—robust group discourse and 

informed deliberation and decision making—may be hampered. 

In addition, while FCC relies heavily on public input to inform its 

decisions, we found two primary weaknesses in its processes for 

collecting that input. First, FCC’s use of NPRMs to pose broad questions 

without providing actual rule text can limit stakeholders’ ability to 

determine either what action FCC is considering or what information 

would be most helpful to FCC when developing a final rule. Second, 

although FCC has developed rules intended to protect the fairness of

ex parte proceedings, FCC neither provides detailed guidance on what 

constitutes a sufficient ex parte summary, nor has a process for 

proactively ensuring that ex parte summaries are complete. If parties are 

able to submit vague ex parte summaries that may not fully reflect 

meetings between FCC officials and outside parties, then stakeholders will 

continue to question whether commission decisions are being influenced 

by information that was not subject to public comment or rebuttal and 

that, in some cases, is submitted just before a commission vote. FCC is 

currently exploring new methods of collecting public comment and 

potential revisions to its ex parte process. 

Finally, at a time when the telecommunications industry has become 

increasingly complex, a large percentage of FCC’s economists and 

engineers will be eligible for retirement by 2011, and FCC has faced 

challenges in recruiting new staff. FCC has taken several positive steps to 

help meet its workforce needs, including instituting hiring and staff 

development programs and beginning efforts to identify its current 

workforce expertise needs. However, continued focus on identifying and 

instituting additional methods that improve its flexibility to meet its 

Page 46 GAO-10-79 FCC Management
 

expertise needs, and developing measures for tracking its progress toward 

meeting its needs, will help to ensure that FCC is well-positioned to 

anticipate and address its current and future workforce and expertise 

needs. 

We have identified four areas of concern and are making seven 

recommendations to address these concerns. 

To ensure interbureau coordination on crosscutting issues, we 

recommend that the Federal Communications Commission (FCC) take the 

following two actions: 

Recommendations for 

Executive Action 

• Develop written policies outlining how and when FCC will 

• identify issues under the jurisdiction of more than one bureau; 

• determine which bureau will serve as the lead on crosscutting issues 

and outline the responsibilities entailed regarding coordinating with 

other bureaus; and 

• ensure that staff from separate bureaus and offices can communicate 

on issues spanning more than one bureau. 

• Review whether it needs to redefine the roles and responsibilities of the 

Office of Engineering and Technology (OET) and the Office of Strategic 

Planning and Policy Analysis (OSP) and make any needed revisions. 

To clarify FCC’s policies on providing commissioners access to 

information from bureaus and offices about agenda items, we recommend 

FCC take the following two actions: 

• Each chairman, at the beginning of his or her term, develop and make 

publicly available internal policies that outline the extent to which 

commissioners can access information from the bureaus and offices 

during the decision-making process, including how commissioners can 

request and receive information. 

• Provide this policy to FCC’s congressional oversight committees to aid 

their oversight efforts. 

To improve the transparency and effectiveness of the decision-making 

process, we recommend that FCC take the following two actions: 

Page 47 GAO-10-79 FCC Management
 

• Where appropriate, include the actual text of proposed rules or rule 

changes in either a Notice of Proposed Rulemaking or a Further Notice of 

Proposed Rulemaking before the commission votes on new or modified 

rules. 

• Revise its ex parte policies to include 

• modifying its current guidance to further clarify FCC’s criteria for 

determining what is a sufficient ex parte summary and address 

perceived discrepancies at the commission on this issue; 

• clarifying FCC officials’ roles in ensuring the accuracy of ex parte 

summaries and establish a proactive review process of these 

summaries; and 

• creating a mechanism to ensure all commissioners are promptly 

notified of substantive filings made on items that are on the Sunshine 

Agenda. 

To improve FCC’s workforce planning efforts, we recommend that FCC 

take the following action: 

• In revising its current Strategic Human Capital Plan, include targets that 

identify the type of workforce expertise needed, strategies for meeting 

these targets—including methods to more flexibly augment the 

workforce—and measures for tracking progress toward these targets. 

FCC provided written comments, which are reproduced in appendix III. In 

its comments FCC generally concurred with our recommendations and 

noted that they have already begun taking steps to address the areas of 

concern identified in our recommendations. For example, FCC stated that 

it is in the midst of a review of FCC’s existing processes. As part of this 

process, FCC is reviewing prior procedures for interbureau 

communication, as well as prior and current practices for commissioner 

and staff communication. FCC stated that it would identify and 

incorporate lessons learned and best practices into future internal 

procedures. FCC did not specifically state whether future policies on 

commissioner access to bureau and office information during the decisionmaking process would be made publicly available or provided to FCC’s 

congressional oversight committees. We believe these would be important 

steps in improving the transparency of FCC’s decision-making process. 

FCC also did not specifically discuss our recommendation that it review 

Agency Comments 

Page 48 GAO-10-79 FCC Management
 

whether it needs to redefine the roles and responsibilities of OET and OSP 

and make any needed revisions. Regarding the public comment process, 

FCC stated that it has worked to include the text of proposed rules in 

recently issued NPRMs. However, FCC did not state whether this would be 

an ongoing policy. FCC also noted that the Office of General Counsel is in 

the midst of reviewing proposals for modifying the current ex parte

process, and stated that this may lead to a rulemaking to address this 

issue. Finally, FCC believes that it does not face significant challenges in 

recruiting top candidates and stated that its unique mission and the 

influence of its regulatory activities on the communications industry and 

practices help it attract qualified candidates. However, it concurred that 

revisions to the current Strategic Human Capital Plan should include 

targets and measures for tracking progress toward these targets. We 

recognize FCC’s efforts to enhance internal and external communication, 

to update its comment filing system, and to continue to review other 

existing processes and workforce planning efforts. However, addressing 

our specific recommendations will further enhance FCC’s efforts to date 

by promoting internal communication and coordination, clarifying policies 

on commissioner access to staff analyses, enhancing FCC’s methods for 

collecting public input, and developing methods to ensure it has the staff 

expertise it needs. In addition, we provided the Federal Energy Regulatory 

Commission, Federal Trade Commission, and Nuclear Regulatory 

Commission with a draft of this report for review and comment. They did 

not offer any comments on our findings or recommendations, but provided 

technical corrections which we incorporated. 

As agreed with your offices, unless you publicly announce the contents of 

this report earlier, we plan no further distribution of it until 30 days from 

the date of this report. At that time, we will send copies to the Chairman of 

the Federal Communications Commission and other interested parties. In 

addition, the report will be available at no charge on the GAO Web site at 

http://www.gao.gov. 

Page 49 GAO-10-79 FCC Management
 

If you have any questions about this report, please contact me at (202) 512-

2834 or goldsteinm@gao.gov. Contact points for our Offices of 

Congressional Relations and Public Affairs may be found on the last page 

of this report. GAO staff who made major contributions to this report are 

Mark L. Goldstein 

listed in appendix IV. 

Director, Physical Infrastructure Issues 

Page 50 GAO-10-79 FCC Management
Appendix I: Objectives, Scope, and 

Methodology 

Page 51 GAO-10-79 

Appendix I: Objectives, Scope, and 

Methodology 

The report examines Federal Communications Commission’s (FCC) 

organization, decision-making process, and personnel management. In 

particular, the report provides information on (1) the extent to which 

FCC’s bureau structure presents challenges for the agency in adapting to 

an evolving marketplace; (2) the extent to which FCC’s decision-making 

processes present challenges for FCC, and what opportunities, if any, exist 

for improvement; and (3) the extent to which FCC’s personnel 

management and workforce planning efforts ensure that FCC has the 

workforce needed to achieve its mission. 

To respond to the overall objectives of this report, we interviewed current 

and former officials from FCC, including former chief economists and 

chiefs of staff, bureau and office chiefs and acting bureau and office 

chiefs, commissioners, and chairmen. In addition, we reviewed FCC 

documents, as well as relevant legislation, federal regulations, and GAO 

reports on the FCC and areas of focus for this review such as internal 

controls and workforce planning. We also interviewed industry 

associations representing broadcast and cable television, public television, 

consumer electronics, wireless, and telecommunications companies, 

public interest groups, and other individuals, such as academics with 

extensive telecommunications experience. Table 3 lists the organizations 

with whom we spoke. 

To describe the challenges FCC’s bureau structure presents the agency in 

adapting to an evolving marketplace, we reviewed FCC’s major internal 

reorganizations since the Telecommunications Act of 1996. We analyzed 

FCC procedures, applicable laws, and reviewed academic literature on 

organizational theory and various FCC reform proposals. We also 

reviewed academic literature on the commission structure, organizational 

theory, and various FCC reform proposals from a number of stakeholders. 

We used GAO’s internal control and management tool to identify key 

mechanisms for facilitating the flow of information within an 

organization.1

To determine challenges the commission decision-making process 

presents for FCC and opportunities for improvement, we reviewed 

literature on federal rulemaking and potential reforms and on the 

 

1

GAO issues standards to provide the overall framework for establishing and maintaining 

internal control and for identifying and addressing major performance challenges and areas 

at the greatest risk for fraud, waste, abuse, and mismanagement. See GAO-01-1008G. 

 FCC Management 
Appendix I: Objectives, Scope, and 

Methodology 

commission structure and decision-making process. We reviewed FCC 

internal decision-making documents and the public comments of current 

and former FCC commissioners and former chairmen to determine how 

the decision-making process works. We also interviewed officials from 

independent regulatory agencies including the Nuclear Regulatory 

Commission, Federal Energy Regulatory Commission, and the Federal 

Trade Commission and, where available, reviewed their internal 

commission procedures to understand how other independent regulatory 

agencies implement the commission decision-making process. We 

reviewed FCC’s decision-making procedures and public comment and

ex parte rules, and compared certain aspects to standards established in 

GAO’s internal control standards and other relevant documents. In 

addition, we interviewed industry, consumer advocate, and regulatory 

representatives to gain their perspectives on providing information to FCC 

during the decision-making process and to identify alternative approaches 

to the decision-making process. Finally, we reviewed FCC documents, 

policy papers from outside stakeholders, letters to the Presidential 

Transition Task Team, as well as proposed legislation to determine 

proposals for altering FCC’s public comment process. 

To examine whether FCC’s personnel management and workforce 

planning efforts ensure that FCC has the workforce needed to achieve its 

mission, we reviewed prior GAO products related to strategic workforce 

planning and human capital challenges. We then reviewed FCC-generated 

data on overall staff levels, hiring, attrition, and retirement eligibility over 

the period of 2003 to 2008. We also reviewed FCC’s 2007-2011 Strategic 

Human Capital Plan to determine the challenges FCC has identified for 

addressing future workforce issues, as well as its proposed solutions. We 

reviewed FCC’s methods for identifying needed skill sets and 

competencies, including surveys of staff and focus groups. We analyzed 

results from the Office of Personnel Management’s (OPM) Federal Human 

Capital Survey for 2008 and compared FCC’s responses on various items 

with the responses of the rest of U.S. government staff. 

We performed our review from August 2008 to October 2009 in accordance 

with generally accepted government auditing standards. Those standards 

require that we plan and perform the audit to obtain sufficient, appropriate 

evidence to provide a reasonable basis for our findings and conclusions 

based on our review objectives. We believe that the evidence obtained 

provides a reasonable basis for our findings and conclusions based on our 

audit objectives. 

Page 52 GAO-10-79 FCC Management
Appendix I: Objectives, Scope, and 

Methodology 

Table 3: Organizations Interviewed 

American Cable Association 

Association for Maximum Service Television 

Association of Public Television Stations 

AT&T 

Consumer Electronics Association 

COMPTEL 

Consumers Union 

CTIA–The Wireless Association 

DIRECTV Satellite Television 

Information Economy Project 

Levine, Blaszak, Block & Boothby (Telecommunications and Technology Law Firm) 

Media Access Project 

National Association of Broadcasters 

National Association of Regulatory Utility Commissioners 

National Association of State Utility Consumer Advocates 

National Association of Telecommunications Officers and Advisors 

National Cable & Telecommunications Association 

National Telecommunications Cooperative Association 

Progress and Freedom Foundation 

USTelecom–The Broadband Association 

Verizon 

Wiley Rein, LLP (represents a broad range of telecommunications clients) 

Source: GAO. 

Page 53 GAO-10-79 FCC Management
Appendix II: FCC Bureaus and Functions Appendix II: FCC Bureaus and Functions 

FCC staff is organized into seven operating bureaus and 10 staff offices. 

The bureaus’ responsibilities include: processing applications for licenses 

and other filings; analyzing complaints; conducting investigations; 

developing and implementing regulatory policies and programs; and taking 

part in hearings. FCC’s offices provide support services for the bureaus 

and commission. 

Office of Inspector General: The Office of Inspector General conducts 

and supervises audits and investigations relating to FCC’s operations. The 

Inspector General reports to the chairman and informs the chair and 

Congress of fraud or any serious problems with the administration of FCC 

programs and operations discovered during audits and investigations; 

reviews and recommends corrective action, where appropriate; and 

reports on progress made in the implementation of those corrective 

actions. 

Office of Engineering and Technology: The Office of Engineering and 

Technology (OET) advises FCC on engineering matters, manages 

spectrum, and provides leadership in creating new opportunities for 

competitive technologies and services for the American public. OET 

allocates spectrum for nonfederal use and provides expert advice on 

technical issues before the commission, including helping commissioners 

understand the tradeoffs of technical issues. In addition to providing 

technical guidance to the commissioners, FCC’s other bureaus rely on 

OET to provide leadership on high-level technical and engineering issues 

that do not fall within the scope of a particular bureau and to provide 

advice on technical issues handled in the bureaus. 

Office of General Counsel: The Office of General Counsel serves as the 

chief legal advisor to the commission and to its various bureaus and 

offices. The General Counsel also represents the commission in litigation 

in federal courts, recommends decisions in adjudicatory matters before 

the commission, assists the commission in its decision-making capacity, 

and performs a variety of legal functions regarding internal and other 

administrative matters. 

Office of Managing Director: The Office of Managing Director functions 

as chief operating official, serving under the direction and supervision of 

the chairman. The office develops and manages FCC’s budget and 

financial programs, personnel management process and policy, develops 

and implements agencywide management systems, coordinates the 

commission meeting schedule, and manages the distribution and 

publication of official FCC documents. 

Page 54 GAO-10-79 FCC Management 
Appendix II: FCC Bureaus and Functions 

Office of Media Relations: The Office of Media Relations is responsible 

for the dissemination of information on commission issues. The office is 

responsible for coordinating media requests for information and 

interviews on FCC proceedings and activities and for encouraging and 

facilitating media dissemination of commission announcements, orders, 

and other information. 

Office of Administrative Law Judges: The Office of Administrative Law 

Judges is responsible for conducting the hearings ordered by the 

commission. The hearing function includes acting on interlocutory 

requests filed in the proceedings, such as petitions to intervene, petitions 

to enlarge issues, and contested discovery requests. An administrative law 

judge, appointed under the Administrative Procedures Act, presides at the 

hearing during which documents and sworn testimony are received in 

evidence, and witnesses are cross-examined. At the conclusion of the 

evidentiary phase of a proceeding, the presiding administrative law judge 

writes and issues an initial decision which may be appealed to the 

commission. 

Office of Legislative Affairs: The Office of Legislative Affairs is the 

FCC’s liaison to Congress and provides lawmakers with information 

regarding FCC regulatory decisions, answers to policy questions, and 

assistance with constituent concerns. The office also prepares FCC 

witnesses for congressional hearings and helps create FCC responses to 

legislative proposals and congressional inquiries. Additionally, the office is 

a liaison to other federal agencies, as well as state and local governments. 

Office of Communications and Business Opportunities: The Office of 

Communications and Business Opportunities provides advice to the 

commission on issues and policies concerning opportunities for 

ownership by small, minority, and women-owned communications 

businesses. The office works with entrepreneurs, industry, public interest 

organizations, individuals, and others to provide information about FCC 

policies, increase ownership and employment opportunities, foster a 

diversity of voices and viewpoints over the airwaves, and encourage 

participation in FCC proceedings. 

Office of Workplace Diversity: The Office of Workplace Diversity 

advises the commission on all issues related to workforce diversity, 

affirmative recruitment, and equal employment opportunity. 

Office of Strategic Planning and Policy Analysis: The Office of 

Strategic Planning and Policy Analysis (OSP) is responsible for working 

Page 55 GAO-10-79 FCC Management
Appendix II: FCC Bureaus and Functions 

with the chairman, the commissioners, bureaus, and offices to develop a 

strategic plan identifying short- and long-term policy objectives for the 

agency. OSP consists of economists, attorneys, and MBAs who serve as 

expert consultants to the commission in areas of economic, business, and 

market analysis and other subjects that cut across traditional lines, such as 

the Internet. The office also reviews legal trends and developments not 

necessarily related to current FCC proceedings, such as intellectual 

property law, the Internet, and e-commerce issues. 

International Bureau: The International Bureau represents the 

commission in satellite and international matters. This includes advising 

the chairman and commissioners on matters of international 

telecommunications policy and the status of the commission’s actions to 

promote the vital interests of the American public in international 

commerce, national defense, and foreign policy areas. The bureau also 

develops, recommends, and administers policies, rules, and procedures for 

the authorization and regulation of international telecommunications 

facilities and service and domestic and international satellite systems. 

Wireless Telecommunications Bureau: The Wireless 

Telecommunications Bureau handles all FCC domestic wireless 

telecommunications programs and policies—except those involving public 

safety, satellite communications, or broadcasting—including licensing, 

enforcement, and regulatory functions. Wireless communications services 

include cellular telephone, paging, personal communications services, and 

other commercial and private radio services. The bureau also regulates the 

use of radio spectrum to fulfill the communications needs of business, 

aircraft and ship operators, and individuals. The bureau is responsible for 

implementing the competitive bidding authority for spectrum auctions. 

Enforcement Bureau: The Enforcement Bureau is responsible for 

enforcing provisions of the Communications Act of 1934, FCC’s rules and 

orders, and the terms and conditions of station authorizations. Major areas 

of enforcement that are handled by the Enforcement Bureau are (1) 

consumer protection enforcement, (2) local competition enforcement, and 

(3) public safety and homeland security enforcement. 

Consumer and Governmental Affairs Bureau: The Consumer and 

Governmental Affairs Bureau (CGB) develops and implements the 

commission’s consumer policies, including disability access. The bureau 

conducts consumer outreach and education and maintains a Consumer 

Center that responds to consumer inquiries and complaints. CGB also 

maintains collaborative partnerships with state, local, and tribal 

Page 56 GAO-10-79 FCC Management
Appendix II: FCC Bureaus and Functions 

governments in areas such as emergency preparedness and 

implementation of new technologies. 

Media Bureau: The Media Bureau develops, recommends, and 

administers the policy and licensing programs relating to electronic media, 

including cable television, broadcast television, and radio in the United 

States and its territories. The Media Bureau also handles postlicensing 

matters regarding direct broadcast satellite service. 

Wireline Competition Bureau: The Wireline Competition Bureau 

develops and recommends policy goals, objectives, programs, and plans 

for the commission on matters concerning wireline telecommunications. 

The Wireline Competition Bureau’s overall objectives include ensuring 

choice, opportunity, and fairness in the development of wireline 

telecommunications services and markets; developing deregulatory 

initiatives; promoting economically efficient investment in wireline 

telecommunications infrastructure; promoting the development and 

widespread availability of wireline telecommunications services; and 

fostering economic growth. 

Public Safety and Homeland Security Bureau: The Public Safety and 

Homeland Security Bureau is responsible for developing, recommending, 

and administering the agency’s policies pertaining to public safety 

communications issues. These policies include 911 and E911, operability 

and interoperability of public safety communications, communications 

infrastructure protection and disaster response, and network security and 

reliability. The bureau also serves as a clearinghouse for public safety 

communications information and takes the lead on emergency response 

issues. 

Page 57 GAO-10-79 FCC Management
Appendix III: Comments from the Federal Appendix III: Comments from the Federal Communications Commission 

Communications Commission 

Page 58 GAO-10-79 FCC Management 
Appendix III: Comments from the Federal 

Communications Commission 

Page 59 GAO-10-79 FCC Management
Appendix III: Comments from the Federal 

Communications Commission 

Page 60 GAO-10-79 FCC Management
Appendix III: Comments from the Federal 

Communications Commission 

Page 61 GAO-10-79 FCC Management
Appendix III: Comments from the Federal 

Communications Commission 

Page 62 GAO-10-79 FCC Management
Appendix IV: 

A

GAO Contact and Staff 

cknowledgments 

Page 63 GAO-10-79 

Appendix IV: GAO Contact and Staff 

Acknowledgments 

Mark L. Goldstein, (202) 512-2834 or goldsteinm@gao.gov

In addition to the contact listed above, Andrew Von Ah (Assistant 

Director), Eli Albagli, Pedro Almoguera, Thomas Beall, Timothy Bober, 

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