House Panel Approves Bills Targeting FCC Process

Republicans defeated an amendment to HR-3309 by Ranking Member Anna Eshoo, D-Calif., to pare the bill to the areas she supports. That includes a change to sunshine rules allowing more than two FCC commissioners meet in private. The subcommittee divided by party and the amendment lost 10-14. Full Committee Ranking Member Henry Waxman, D-Calif., said the sunshine rule change was the one area he supported in HR-3309. But Chairman Greg Walden, R-Ore., questioned the “notion” that transparency would be improved by legislating only the proposal to allow closed-door meetings.

The subcommittee agreed by voice vote to other amendments to HR-3309: an amendment by Rep. Cliff Stearns, R-Fla., requiring the FCC to post its budget, appropriations, number of employees and performance plan on its website; and a minor technical change by Rep. Joe Barton, R-Texas, to the bill’s language. Republicans supported a Waxman amendment requiring the FCC to make consumer complaint data at the FCC more accessible through a searchable database on its website. But Waxman withdrew it for more tinkering after there was minor disagreement on the wording. Similarly, Rep. Adam Kinzinger, R-Ill., withdrew his amendment to speed publication of FCC rules in the Federal Register after Democrats raised concerns about how it was written.

With a little editing, HR-3310 could be supported unanimously in the full committee and “sail through the House,” Waxman said. Eshoo agreed “there could be opportunities to streamline many of the reporting requirements Congress has placed on the FCC,” but she said “we need to fully understand the implications of these changes.” HR-3310 reduces “burdensome” reporting requirements at the commission, said sponsor Rep. Steve Scalise, R-La. The reports look at each sector individually when a comprehensive perspective would be more valuable, Scalise said. The subcommittee agreed to two amendments by Scalise: one requiring the FCC to consider barriers to small businesses, and a second making a minor technical edit.

On HR-3309, Waxman asked why the FCC should have special rules that go beyond the Administrative Procedure Act (APA). By requiring cost-benefit analyses in transaction reviews, the bill would “curtail” the FCC’s ability to protect the public interest, he said. Waxman doesn’t object to having the FCC comply with President Barack Obama’s executive order for federal agencies, but worries what will happen if Congress makes these rules subject to judicial review. That could significantly increase lawsuits at the FCC, he said. HR-3309 reads like an attack on the FCC’s net neutrality order and recent transaction approvals, said Rep. Mike Doyle, D-Pa.

"Hogwash,” Walden said of the argument that the FCC doesn’t need “special attention” because it’s already subject to the APA. The FCC “had a backlog of 5,328 petitions, 4,185 license applications and more than a million consumer complaints just this summer,” he said. And it hasn’t produced an annual satellite competition report or video competition report “in years,” he said. The FCC still hasn’t released its Universal Service Fund reform order, he added. Walden doesn’t “understand why the FCC should be treated so differently from every executive agency that is subject to President Obama’s executive order” requiring cost-benefit analyses and other standards.

Eshoo supports more transparency and efficiency at the FCC, but disagrees with how HR-3309 goes about it, she said. “The overwhelming consensus ... is that these reforms would lead to an agency that is less effective, less agile and transparent.” Some of the changes benefit special interest groups instead of consumers, Eshoo said. She also complained spectrum legislation has stalled while FCC reform is moving. “We can’t get spectrum legislation going,” but Congress doesn’t have to report every 14 days on its inaction, as the FCC would be required to do under HR-3309, she said.

While FCC reform is moving in the House, the Senate has shown little interest in the subject. Senate Commerce Committee member Dean Heller, R-Nev., introduced Senate companion bills and has the support of Ranking Member Kay Bailey Hutchison, R-Texas, but Democrats in the majority have so far kept mum on the subject.

A House Commerce GOP report released late Tuesday found that while FCC process has improved under Chairman Julius Genachowski, the commission still has a large backlog of petitions and consumer complaints. As of July 5, the FCC had 3,472 open proceedings, 26,335 petitions and requests, 1,385 petitions for reconsideration, 1,531,893 unaddressed consumer complaints and 33,233 license applications and renewals. The full report is at http://xrl.us/bmisn2.

Rep. Lee Terry, R-Neb., vice chairman of the House Communications Subcommittee, was sharply critical of the FCC’s December 2010 net neutrality order and what it says about FCC decision making. His criticism came during remarks at a National Journal conference Wednesday prior to the markup “The critique would have to be net neutrality looked like it was driven by an agenda more than good policy,” Terry said. He said it remains unclear exactly what the FCC did last month to reform the Universal Service Fund: “There’s an order out there and I have no clue what it says and that’s very frustrating."

Terry said his advice to the FCC is follow the process it has in place. He said the FCC shouldn’t make “document dumps” like it did the night before the vote on the USF order. “When it looks like you are abusing the process to make your personal agenda easier to implement” it raises questions, he said. “When it looks like you are abusing the process, then you will be a marked person.” Terry said he would give FCC Chairman Julius Genachowski “a decent grade” on the whole. “I like him,” Terry said. “I invited him to Nebraska and he came."

Former Rep. Rick Boucher, D-Va., now with Sidley Austin, said at the same conference he would give Genachowski high marks for handling difficult issues well. Boucher agreed with Terry that transparency in the process is critical. “I think anyone at the FCC, the chairman in particular, needs to understand that his role in life is to carry out Congressional will, to successfully and faithfully implement the statutes that have been adopted,” Boucher said. “Because technology is such a complex area, Congress necessarily has to legislate on a higher level.” Congress has to rely on the FCC for “fine tuning,” he said. “But it always has to happen within the context of what the Congress intended."

FCC process reforms should be discussed, USTelecom said. “The commission already is pursuing an aggressive agenda to advance broadband, but the primary statute under which it derives its authority to carry out this agenda stems from a narrowband era,” said USTelecom President Walter McCormick. “Further, the commission’s structure mirrors the statute, which is built upon distinct analog technologies rather than the converged digital platforms we see today."

Consumer and public interest groups criticized the legislation. “The ‘reform’ legislation ... would make a sham out of the principles which have guided our communications laws for the past 75 years,” said Public Knowledge President Gigi Sohn. “Instead of relying on a fundamental concept of the public’s interest, convenience and necessity in a rule, or in the approval of a transaction, the legislation instead defers to industry’s interest and convenience.” Consumers Union Policy Counsel Parul Desai said the legislation “would make the process of considering the public interest for transactions more complicated and confusing, and would ultimately make it harder for the FCC to protect consumers."

An FCC spokesman said Genachowski “has made impressive strides, such as reducing Commission backlogs, including an 89% reduction in satellite licensing applications and a 30% reduction in broadcast licensing applications, closing 999 dormant proceedings and increasing the number of Notices of Proposed Rulemaking (NPRMs) that contained the text of proposed rules from 38% before the Chairman’s appointment to 85%.” The FCC has also “significantly reduced the time between the vote on a Commission decision and its release, from an average release time of 14 calendar days before the Chairman’s appointment to just three calendar days, with a majority released within one day.”