With FCC’s blessing, CGB proposes to toss 1,000 – 1,500 (or so) “dormant” proceedings.

In February, 2010, the Commission issued a low-profile Notice of Proposed Rulemaking addressing a number of procedural issues of seemingly minor interest to most of us. In a section titled “Management of Dockets”, the Commission observed that it has more than 3,000 open dockets on its books, many of which “have seen little or no activity in years.”  No surprise there. Conjuring dark images of Docket Death Panels, the Commission ominously opined that “some open dockets may be candidates for termination.” The Commission then proposed to authorize its Consumer and Governmental Affairs Bureau (CGB) to “review all open dockets”, identify “candidate[s] for termination”, consult with the relevant Bureaus and then, WHACK, pull the plug on dockets in which, for example, “no further action is required or contemplated.”

Fast forward to February, 2011. In a similarly low-key order, the Commission did indeed empower CGB to euthanize what the FCC now characterized euphemistically as “dormant proceedings”. In doing so it gave CGB virtually no guidance to help it identify such proceedings. Candidates for termination with prejudice “might include dockets in which no further action is required or contemplated and dockets in which no pleadings or other documents have been filed for several years” – but would not ordinarily include “proceedings in which petitions addressing the merits are pending”, unless the parties consent.

Armed with that nebulous mandate, CGB has released for comment its initial list of “dormant proceedings” which, absent objection, will be summarily flushed down the tubes in a couple of months. That list is set out in a 97-page table containing more than 1,000 separate line entries. When you dig into them (see below for how you can do this – the process is not as simple as you might think), you find that a fair number of those individual line entries in turn contain as many as 30 or 40 separate and distinct items. From a casual back-of-the-hand calculation, we’d say that CGB is proposing to dump somewhere close to 1,500 separate and distinct proceedings.

So the FCC could be relieving itself of up to half of its open dockets with little more than a single perfunctory notice.

One question: When can we get CGB to come to our office to work its magic with our backlog?

The cut-off formula that CGB has adopted for identifying proceedings suitable for the scrap heap is simple: any “open proceedings in which no action has been taken or pleading filed since December 31, 2004” are fair game. Note that CGB appears to have expanded the scope of its authority. The Commission’s February, 2011 order referred to dockets in which “no further action is required or contemplated”; by contrast, CGB has included proceedings in which “no action has been taken”. In other words, CGB seems to have concluded that if the FCC hasn’t acted on a matter for a few years – for any reason, or maybe even for no reason at all – the matter can be deep-sixed.

So unlike most of the rest of us, if the Commission chooses to ignore something long enough, that something will apparently just go away.

The Commission did provide something of a safety net to protect against the untimely dispatch of still vibrant, or at least viable, proceedings. It required that interested parties be afforded an opportunity to comment before any particular proceeding is terminated. Accordingly, the issuance of a public notice and a reasonable opportunity for public input were imposed as conditions precedent to CGB termination.

CGB’s recent notice and accompanying list constitute that notice and opportunity. If you think that you might have a proceeding on that list that you want to snatch from the jaws of dismissal, you’ve got until July 20, 2011 to plead your case to the Commission. Otherwise, it’s curtains.

If you do think that one or more of the 1,500 or so items on CGB’s chopping block might be worth saving, you’d better start looking now. That’s because CGB’s list doesn’t identify the parties involved in any of the line items. Rather, the list indicates the relevant Bureau and provides only the proceeding number, the date the proceeding was created, the date of the most recent filing, and the subject matter. (Irony Alert: At least eight of the items include the word “expedite” or “expedited” in the subject description.)

The CGB-provided PDF version of the list also purports to include links to each line item. Don’t be fooled – the links don’t appear to work. Not to worry, though. If you go to this link you’ll find a CGB-produced Excel spreadsheet which does contain live links to the various proceedings. But that means you have to click on each one to glimpse the underlying paperwork which reflects the party (or parties) involved. As noted above, some of the line items in the spreadsheet lead you to long (some including more than 30 items) secondary lists of parties with no accompanying indication of the nature of the proceeding. To figure out what each of those entries entails, you have to click on each party to review the pleading in question.

On your mark, get set, start looking. How long can it take to click your way through about 1,500 items, anyway?

Whether CGB’s approach really satisfies the notice and comment opportunity the FCC required is far from clear. But the Commission’s goal is evidently to toss as many proceedings as possible, and CGB’s approach is eminently suited for that.

It’s possible, of course, that all of the proceedings on CGB’s Goner List have been abandoned by their proponents and can, therefore, be put out of their misery. But without considerable effort, it would be impossible to confirm that.

Bottom line: if you filed a petition for rulemaking at any time between, say, 1991 and 2004, and you think you might like to keep it alive, you’d do well to spend some time with CGB’s list.