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Past Attempts Failed

Senate Commerce Gears Up for First FCC Reauthorization in 25 Years

The Senate Commerce Committee may formally reauthorize the FCC for the first time in a quarter century starting in summer or fall, Chairman John Thune, R-S.D., told us at the Capitol Tuesday. Last week at the American Enterprise Institute headquarters, Thune described his interest in “regularly reauthorizing” the agency (see 1501280050). Other lawmakers told us the idea has real merit for congressional oversight, and Thune anticipates hearings and a bill markup to that end.

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We’re going to obviously be marking up appropriation bills,” Thune told reporters. “It’d be nice to do [FCC] authorization before we do appropriations, but given the calendar it’s probably unlikely to happen. I think what we’ll end up doing in the committee is probably cybersecurity, data breach, some other things first, and then we’ll see if we can get to that sometime later in the summer or fall.” FCC reauthorization would be “a natural fit” for the Communications Act overhaul process “if we could get to that,” he said.

The last time Congress formally reauthorized the FCC was 1990. A Congressional Research Service report last month highlighted that last reauthorization and tallied the five bills that were introduced and failed to pass since. Sen. John McCain, R-Ariz., introduced a reauthorization act in 2003 in the 108th Congress; Rep. Jack Fields, R-Texas, in the 104th Congress; Sen. Daniel Inouye, D-Hawaii, and then-Rep. Ed Markey, D-Mass., in the 103rd Congress; and Inouye in the 102nd Congress.

I think it’s a great idea,” McCain, a former Commerce Committee chairman, told us at the Capitol Tuesday. “It’s long overdue.”

All agencies ought to be reauthorized regularly,” Senate Communications Subcommittee ranking member Brian Schatz, D-Hawaii, told us of FCC reauthorization. “I think that’s part of our oversight responsibility. It gives us an opportunity to make policy and oversee the agencies that are enabled by statute. I think as a general proposition we should be doing more on the authorizing side.”

USTelecom told Congress last year that it should reinstate reauthorization of the FCC. Capitol Hill lawmakers should "reinvigorate the process of reauthorizing appropriations for the FCC on a regular basis,” the association said in comments to House Commerce Committee lawmakers regarding the Communications Act overhaul process. USTelecom noted that reauthorization did not factor into the Communications Act of 1934 but that appropriation authorization first occurred in 1981: “The goal of the [reauthorization legislation] authors was clear: They wanted to establish a more effective means of overseeing a regulatory agency that had been dealing with and would be continuing to deal with matters, entities, and technologies unforeseen by the authors of the 1934 Act, such as cellular telephone license allocations, competition in interstate telephone services, customer premises equipment, cable television, data processing, satellite communications, and most especially, the prospective aftermath of the United States v. AT&T antitrust case.” Reauthorizations occurred in 1983, 1986, 1988 and 1990. It can mean “an effective means to conduct oversight of the FCC, without the necessity enacting of omnibus legislation,” USTelecom said.

CTIA also tentatively backed reauthorization. “Indeed, if the FCC were subject to more periodic review as part of the reauthorization process, the type of comprehensive re-write of the Act now contemplated by Congress may be less necessary,” it told House lawmakers, calling such reauthorization “important.”

NCTA disagreed, arguing in comments that “the FCC should be empowered to make limited necessary adjustments, rather than requiring Congress to reauthorize the Act.” The Competitive Carriers Association warned of disastrous effects from any “periodic” reauthorizations for the FCC. Reauthorization “could create massive uncertainty in the telecommunications industry, as investments are made in infrastructure and services that are independent of Congressional timelines,” it told House lawmakers last year amid the Communications Act update proceeding.

I haven’t looked at it any further than simply to be aware that the chairman has listed this as a topic that we perhaps need to delve into,” Communications Subcommittee Chairman Roger Wicker, R-Miss., said in an interview. “But we have not explored it in any further depth than that.” He judged it early to comment.

It hasn’t been done since 1990, so they’ve been operating without a reauthorization for a long time,” Thune said. “If we’re going to do it, I suspect we’d have hearings and, you know, look at what we could do to mark up a bill and try to get some Democrat cooperation on that, but we’re not very far down that track yet."