Dingell Wants ‘Deemed Granted’ Scrapped in Forbearance Rules
House Commerce Committee Democrats want to kill the “deemed granted” forbearance provision, but Republicans think the rule is a goad to agency action, members said Tuesday at a Telecom Subcommittee hearing. “We need to work to reform the process, not gut the language that makes” forbearance rules work, said Subcommittee Ranking Member Cliff Stearns, R-Fla. But Chairman Ed Markey, D-Mass., said some companies have “gamed” proceedings with late filings, shortchanging analysis and public input.
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The deemed granted provision “is dangerous and bad policy because it allows agency action to take effect without any formal vote or supporting records,” Dingell said, seeking support for his bill (HR-3914). Dingell was “saddened” that AT&T and Verizon “declined our invitations to testify… to more fully explain their views and to answer polite questions I intended to ask them,” he said.
Several committee Republicans want to keep the deemed granted rule, they said. The provision is a “very positive development,” said Rep. Fred Upton, R-Mich., former Telecom Subcommittee chairman in the Republican-led 109th Congress. As competition grows, government regulation should shrink, he said. The provision helps consumers because it keeps the FCC from “interfering with the relationship between buyers and sellers,” he said. Only four forbearance petitions have been “deemed granted,” and only a Verizon proceeding stirred controversy, Upton said.
Action is needed due to likelihood of 2-2 FCC vote splits next administration, Markey said. The commission might have only four members “for some time” under a new president, said retiring Rep. Chip Pickering, R-Miss. “That’s what everyone is worried about,” he said, adding that a deadlocked commission could lead to “unintended consequences.” Republican FCC Commissioner Deborah Tate has to leave office at year-end unless the Senate reconfirms her, a step not openly supported at this point by Chairman Kevin Martin.
Except for USTelecom, witnesses endorsed Dingell’s bill, including representatives of Comcast, CompTel, TW Telecom and XO Communications. “We want to work with the committee,” said Jonathan Banks, USTelecom Senior Vice President. Inducement is needed to encourage timely FCC action on petitions, Banks said, adding that the record suggests that “things sit for years.”
Stearns offered a legislative compromise setting hard deadlines for FCC action, but it won little support from bill supporters. “Wouldn’t that be the crux of what we could do as reform?” Stearns asked. A regulatory “shot clock” wouldn’t address last-minute filings, CompTel President Matthew Salmon said. Pickering remained hopeful of compromise, he said.
“This is a good first step,” Salmon said of HR-3914. Praising the bill, TW Telecom President Larissa Herda said she thinks forbearance “gives the FCC authority to rewrite the Act.” Banks said the forbearance process is working and is needed to keep items moving at the FCC.
Comcast told the committee it backs HR-3914 because it would require the agency to rule on competition issues before granting forbearance petitions. “There should be no forbearance by default,” Senior Vice President Catherine Avgiris said.
“We would rather compete with the incumbent local telephone companies… than engage in regulatory battles at the FCC or in the halls of Congress,” Avgiris said. But incumbent companies remain dominant and have the “ability and incentive to frustrate innovation, choice and competition.” She cited interconnection, number porting and retention marketing as three areas where carriers’ practices inhibit competition.
States oppose the “deemed granted” FCC rule, the National Association of Regulatory Utility Commissioners said in a letter sent Tuesday to Telecom Subcommittee Chairman Markey, and ranking member Stearns. The “proliferation” of forbearance petitions burdens states, which must collect data on carrier competitiveness, NARUC said. The “deemed granted” provision that kicks in if the agency can’t do its work in time complicates state efforts to “make thoughtful and fully informed decisions on pending petitions,” the letter said.
NARUC said some carriers have provided data supporting their requests near the deadline, posing a special difficulty due to lack of time for “opposition or real analysis.” Congress should pass HR-3914 because it will ensure that the FCC and states can fairly and thoroughly evaluate petitions for forbearance,” NARUC said.