House Panel Pitches FCC Reform Ideas Ahead of Hearing
The House Communications Subcommittee is eying a wide array of FCC reforms, according to a majority staff memo that circulated among lobbyists this week. The subcommittee has a hearing Friday morning. All five commissioners were scheduled to testify. A subcommittee spokeswoman told us that departing Commissioner Meredith Baker has cancelled. Some of the GOP proposals would limit the FCC’s ability to make new regulations, while others are said to be designed to speed up and make more transparent FCC rulemaking. In a separate memo, subcommittee Democrats warned that some proposals could be problematic.
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"There is growing consensus that Federal Communications Commission (FCC) processes need reforming,” the majority memo said. “Under both Democrat and Republican chairmen, the FCC has fallen into practices that weaken decision-making and jeopardize public confidence. While Chairman [Julius] Genachowski and his predecessors have taken steps to improve process, the time may have come to do so statutorily to ensure consistency from issue to issue, and commission to commission."
Several GOP proposals seem designed to rein in FCC regulation. For transaction review proceedings, the memo proposes prohibiting the FCC “from adopting any conditions unless they are narrowly tailored to any transaction-specific harm.” The memo suggests requiring the FCC to start all new rulemakings with a notice of inquiry rather than a notice of proposed rulemaking. “An NPRM presumes regulation is needed,” the memo said. Another proposal would require the FCC to do a cost-benefit analysis before adopting any regulation, and to do periodic evaluations to check if the rule is still needed. The FCC would have to annually issue a schedule of planned statistical reports, and could be prohibited from proposing related regulations until relevant stats are released, the memo said.
The FCC may make conditions on deals to promote the public interest, unlike antitrust enforcement agencies, Democrats said in their memo. The FCC has “generally imposed conditions to remedy specific harms likely to arise from transactions and that are related to the Commission’s responsibilities under the Act and related statutes,” Democrats said. “Indeed, the Act requires the FCC to focus on important public interest objectives such as diversity of viewpoints, localism, and deployment of advanced telecommunications services."
Republicans also proposed revising sunshine rules to allow three or more commissioners to meet “so long as the gathering is bipartisan and procedural safeguards are in place, such as attendance by a representative of the General Counsel’s Office.” Subcommittee Ranking Member Anna Eshoo, D-Calif., and Rep. John Shimkus, R-Ill., have a bill to that effect (HR-1009). Commissioners other than the chairman could get an item on the agenda with a bipartisan majority of commissioners under another proposal in the GOP memo.
Republicans suggested publishing the text of proposed rules for public comment before adoption. For items to be voted in an open meeting, the memo proposes that the FCC make the final draft public some time in advance. It proposes statutory minimum comment periods, and minimum commissioner review periods between the close of a pleading cycle and delivery of a draft, as well as between the draft and a vote. The FCC could not base orders on last-minute ex parte filings, under another proposal. And the memo proposes requiring the FCC chairman to periodically submit a “state of the industry” report to Congress listing problems and proposed solutions.
The majority memo proposes shot clocks for reaching a resolution. There could also be time limits for releasing the text of orders, it said. The GOP memo proposes requiring the FCC to expand its public circulation list to include “a list of all unfinished items at the Commission, the date the items were initiated, their current status, and expected date of completion.” The FCC could have to submit a “quarterly scorecard” showing on average how long the agency took to complete adopted items, how long uncompleted items have been pending, and what percentage of items missed deadlines.
Subcommittee Democrats warned that many of the GOP proposals may exceed the Administrative Procedures Act and could have “unintended consequences.” That could “jeopardize the FCC’s independence and weaken the agency’s decision-making process,” they said. “Depending on the topic and circumstances, flexibility with respect to elements of the regulatory process such as comment periods, notice approaches (e.g., Notice of Inquiry vs. Notice of Proposed Rulemaking), the degree of cost-benefit analysis, and timeframes for action, may assist the FCC in carrying out its core responsibilities under the Communications Act.”