When Congress delegates its authority to make laws to unelected regulators, a certain bit of accountability is lost. To make up for this, the Administrative Procedure Act requires regulators to act openly and transparently. They must make publicly available the rules they are considering, must take comments from the public, and must consider these in adopting final rules. As I explain in my new paper, making something publicly available in the Twenty-First Century means putting it online. But merely putting documents online is not enough to be truly transparent. The public has to be able to easily find and access the documents and hopefully also be able to use them in the sort of innovative ways the state of the art allows.
- There is no index of open or recent proceedings. While there is a daily digest of all the documents the FCC has put out in a given day, there is no master index that would allow a user to look up by issue or bureau what rules or actions are being considered. Additionally, once a user has identified a proceeding, there is no index of the documents in that proceeding’s docket. To get a listing of documents in a docket, a user has to perform a search using a docket number. As Cynthia Brumfeld recently explained,
Let me put it this way: without a “Docket Number,” the average user can’t find anything on the FCC’s website. Even with a Docket Number, users have to choose from among eight different types of databases and if, by chance, the right database is selected, the results can be a garbled, gargantuan mess. Getting a hold of the Docket Number is not the easiest thing in the world for the uninitiated, either.
- Searching the FCC’s Electronic Comment Filing System is limited to a few fields, including docket numbers and author names. That’s it. There is no full-text search. If I’m a small rural ISP and want to search for documents that mention my company’s name, or keywords related to rural issues, there’s not a way to do it. If I file comments in a particular proceeding and I then want to see if they’ve been address by anyone in reply comments, there’s no way to simply search for mentions of my name. And, even if I know a commenter’s name, it may not help me. Is it filed under “American Civil Liberties Union” or ACLU or A.C.L.U. or maybe just under an attorney’s name? If you can’t search full-text, documents may as well not be online.
- Even if you could search full-text, you wouldn’t be able to search all documents in the FCC system. The reason is that many documents are not text, but image files that are not “machine-readable” and therefore invisible to search. For example, yesterday the Commission voted to abrogate exclusive contracts between video provides and apartment building owners. Here is the FCC’s notice of proposed rulemaking in that proceeding. It is an image PDF that can’t be searched. What the FCC basically did was write the document in a word processing program, print out the document, then scan it back into a computer, but this time as an unsearchable image, and that’s what they made available to the public.
I don’t know whether this was done in defiance or ignorance of transparency, but I can see how commenters who don’t want their submissions (or ex parte letters) to be searched or easily quoted would make sure they turned in image PDFs or paper documents that the FCC would then scan into the system. There’s no excuse for this given that almost all documents today come into the world as digital word processing files. To the extent it wants to accept paper, the FCC could automatically apply optical character recognition (OCR) to what it scans.
- There is no structured data for dockets. This is a bit technical, and you can check out my paper if you want to know more about this, but basically the FCC’s website doesn’t present data in very flexible or extensible formats. For example, when you do get a listing of available documents, there’s no way to sort them by date submitted, author, number of pages, etc.
More importantly, there’s no way to subscribe to any information. For example, this blog offers an RSS feed to which you can subscribe. If you do, you’re automatically alerted any time there’s a new posting here. If we wanted to, we could very easily provide feeds for each of the contributors to the Technology Liberation Front so that you could subscribe to just your favorite authors (and never have to hear from Thierer again). We could offer feeds for our categories so you could see just postings in the issue areas that matter to you the most. The Washington Post, for example, offers feeds for every topic the paper covers and for each of their columnists.
It’s simple but powerful modern technology that would be especially helpful for tracking agency actions. Imagine subscribing to a particular docket you’re following. As Drew Clark pointed out on this blog recently, this could be especially helpful for shining a light on ex parte notices that might otherwise go unnoticed. Imagine subscribing to the feed for an FCC bureau or issue area. All of a sudden the agency is much more transparent and folks like me (and probably you) would keep tabs on our pet issues thus increasing accountability. In essence this would be crowdsourcing transparency.
Additionally, when structured feeds are available, it allows users to remix the data contained and mash them with other data sources. For example, MAPLight.org takes feeds of congressional votes and feeds of campaign contributions and produces a new product that lets users explore the connections. Who knows what innovative entrepreneurs could do with feeds of FCC data. What we do know is that it can only help increase the system’s transparency and make the rulemaking process much more accessible.