Stearns Plans Continuing Pressure on FCC to Change Its Ways

Communications laws “have lagged far, far behind and many are no longer relevant to the new services and the new technologies that have arisen over the past few years,” Stearns said. “Attempts to classify these new services into outmoded regulations stifles innovation and simply creates uncertainty in the marketplace.” The commission does its work following “Byzantine” regulatory practices, he said. “We need to improve the quality of the FCC’s decisions and the country’s trust in the FCC, the agency itself.”

The FCC should be required to publish orders before they're set for a vote and allow a reasonable comment period on the rules themselves, Stearns said. The FCC should be required to act on a strict timeline on everything from licensing applications to mergers. Some license applications have been languishing at the agency for years, he said. XM’s purchase by Sirius took 16 months to work its way through the agency, rather than the six months called for under the FCC’s so-called “merger shot clock.” Stearns said “we need to set deadlines for actions on the various types of decisions that the FCC intends to make."

Stearns also backed changes to the agency’s sunshine rules, with an eye on allowing commissioners to hold discussions other than on a one-on-one basis, outside of formal public meetings. “In reality, most commission business is conducted by circulating drafts of orders for comment to get around these simple sunshine requirements,” he said. “The result is less transparency, not more.” Stearns said he has concerns about the FCC’s vote last week approving automatic roaming rules for data. “I don’t think most members even understand the issue,” he conceded. “At this point it is not on the radar screen. I think it should be.”

While the Obama administration issued an order in January requiring a cost-benefit analysis of regulation, Stearns questioned whether it’s serious about cutting red tape. He recalled a hearing his subcommittee held with Cass Sunstein, administrator of the White House Office of Information and Regulatory Affairs: “I asked him about his criteria for his regulation and oddly enough … not one thing was mentioned about would it create jobs.” By one count, Sunstein is in process of approving 4,000 new regulations, Stearns said: “All these new regulations have an impact.”

Seton Motley, president of Less Government, cited the data roaming order as evidence the FCC continues on a regulatory tack. “Are you going to have to chase them around with 9 million Congressional Review Act resolutions as they keep going forward?” he asked from the audience.

FCC Chief of Staff Eddie Lazarus defended the agency in a panel after Stearns’ speech. “It isn’t status quo at the FCC,” Lazarus said. “We are relentlessly focused on the issue of broadband deployment, adoption and bringing those benefits of broadband to all Americans.” The regulator’s organizational chart is “antiquated,” Lazarus conceded. “Inside the FCC and the way we do business, it has changed a lot, not withstanding the categories that you see from the outside,” he said. “We have all kinds of intra-bureau task forces at work precisely to reflect the converged nature of the environment in which we work.”

The FCC is following the administration’s January order on regulatory reform (CD Feb 7 p1), Lazarus said. “The principles of that order are very important.” There will be continuing disagreements about the need for new regulation between the chairman, the agency and industry, Lazarus said. “That’s the nature of what we do,” he said. “Those are debates that are really important to be had.”

Asked specifically if Congress should change the Sunshine Act, Lazarus noted that his boss, Chairman Julius Genachowski, has not taken a stand. Lazarus said that based on his experience as a Supreme Court clerk and as a commission official, he’s not sure Sunshine Act restrictions make that big of difference. “A lot of it is just who the personalities are, how hard they're willing to work at it,” he said. Genachowski meets “with great frequency” with the other commissioners, he said. “It’s a cumbersome system, but I'm not sure that it’s preventing effective deliberation and discussion within the commission.”

Regulatory reform is difficult, said James Assey, NCTA executive vice president. “We are all, I think, in some way, shape, or form creatures of habit, and we fall prey to doing things or planning to do things in the future in the ways that we have always done them in the past, whether or not that is the greatest good or the most benefit for consumers."

"Regulatory reform is only important if it is aimed at helping to achieve some significant public interest, societal benefit,” said USTelecom President Walter McCormick. The track record of the agency is good under Genachowski, he said. “The goal of this commission clearly articulated has been to expand broadband -- broadband investment, broadband deployment, broadband adoption,” he said. “Regulatory reform is being viewed in the context of does it help contribute as a means to this end of broadband expansion.” The big challenge will be to promote broadband under a statute constructed for a narrowband world, where incumbent local exchange carriers face different rules than their competitors, he said. “Even the whole idea of Title II applies to our services but not to similar services offered by others.”

CTIA President Steve Largent said he’s pleased Genachowski has pushed to get more spectrum into play for wireless broadband. At the same time, “the FCC has initiated several proceedings, such as bill shock and net neutrality’s transparency requirements, that could cause harm and we are working with the commission to address the situation,” he said.

"In fundamental respects the FCC functions and regulates much the same way today as it has for the past half century,” said Free State Foundation President Randolph May. “This has remained true in the 15 years since the passage of the Telecommunications Act of 1996, which was explicitly billed by Congress as deregulatory.” He said that has remained true “despite unprecedented marketplace changes resulting in increased competition in all market segments.”