Where’s the FCC’s copy of the MusicFIRST Request been hiding?

As we reported recently, the FCC has invited comment on the Request for Declaratory Ruling filed by the MusicFIRST Coalition. For the convenience of our readers, we provided a link to a copy of the Request. Good thing that we did. Apparently the FCC has been having quite a time trying to track down any copy in its files reflecting a “received” stamp from the Secretary’s office. 

As an apparent result, as of 5:00 p.m. today (August 12, 2009) no copy at all of the Request had been posted in Docket No. 09-143 on ECFS, even though the public notice inviting comments was supposedly released five days ago – so anybody who (a) might have wanted to read the Request between then and now and (b) hasn’t thought to look for it on CommLawBlog.com would have had a bear of a time finding it. 

We’ve heard from one source who suggested that it’s not clear that the Request ever made it to the Secretary’s office. To be sure, the copy of the Request that we have in hand (no thanks to the FCC) includes a certificate of service indicating that it was being filed at the appropriate FCC filing address – but ordinarily, when things are filed at that address, stamped copies are made and retained by the Commission for future reference. So if it did pass through the Secretary’s office, it’s unclear why it didn’t get stamped in . . . and if it did get stamped in, it’s unclear why it’s taking so long to get a stamped copy posted for public review.

We’ve also heard that the way the Request came by its official docket number was a bit, um, unorthodox, but what the heck – the FCC controls its docket number assignment processes, and as long as it can keep those numbers straight, it can assign them however it wants.

While documents can be misfiled or mislaid by even the best of us, the Commission’s delay in making a copy of the Request available for public review is troubling. In our experience the Secretary’s office is one of the tightest-run ships around, so it’s striking that they reportedly haven’t been able to come up with a stamped copy. Unfortunately, thanks to the delay, we’ve already burned through five of the 30 days provided for comments. Since the deadline for comments was thoughtfully set for the Tuesday after Labor Day weekend, every day counts here.  (Yes, we know that this doesn’t affect us, because we’ve already got our copy. But what about everybody else?)

Perhaps most distressing is the question of why there has been any problem here at all.  After all, the Commission issues public notices and opens up dockets all the time. Presumably it has a standard operating procedure to assure that everything is in order before a proceeding is initiated, a docket number assigned, public comments invited, etc. And (also presumably), if that SOP had been followed, somebody would have realized that the stamped copy of the Request – i.e., evidence that the Request had in fact been filed at all – had apparently gone missing. We like to think that the process would then have stopped until the supposedly errant copy had been wrangled back into the files.

So the fact that the public notice was hustled out as a “late release” (supposedly on Friday evening, but did anybody actually see it released before Monday morning?) is odd. After all, what’s the hurry here? Why was it so darned important to get the notice out the door on August 7 when August 10, 11, 12, etc., all would presumably have done just as well?

It is, of course, entirely possible that there are perfectly reasonable answers to these questions. But we’re having trouble coming up with any. The seemingly slapdash haste with which the invitation for comments was issued is particularly problematic in view of the fundamental questions of First Amendment protections and scope of FCC authority posed by the Request.

Unless and until the Commission provides some explanation for both (a) the delay in getting a copy (and particularly a stamped copy) of the Request posted for all to see and (b) the decision to release the public notice on a rush-rush basis late on a Friday with the stamped copy still AWOL, folks at the FCC should not be surprised if many of us take their paeans to “transparency” (like here, or here, or here) with more than a grain of salt.