Senate Commerce Eyes Possible Mid-March Markup of Slimmed-Down FCC Reauthorization

Last summer, Thune was “ready to go,” he told us then, with an unreleased 14-page FCC reauthorization bill drawing from the FCC Process Reform Act of Sen. Dean Heller, R-Nev. The FCC hasn’t been reauthorized since 1990, and Thune announced a desire to change that in January 2015. But Commerce Committee ranking member Bill Nelson, D-Fla., despite initial openness, told us last fall he preferred working out net neutrality legislative negotiation first (see 1510130039). No legislation emerged due to lack of bipartisan consensus. Thune now sees stars aligning.

“I think so,” Thune said in an interview of securing bipartisan support for the new legislation. “I think we got it -- hopefully.”

Nelson spokespeople declined to say whether Nelson is now more receptive to negotiating on an FCC reauthorization bill or to say how Nelson’s office judges the latest draft. “We’re reviewing the proposal,” a Nelson spokesman said Monday.

The FCC Reauthorization Act would authorize FCC appropriations for FY 2017 and FY 2018, at $361.1 million and $348.7 million respectively. For FY 2017, no more than $16.867 million “shall remain available until expended for necessary expenses of the Commission associated with moving to a new facility or reconfiguring the existing facility to significantly reduce space consumption,” the text said. The FY 2017 number is slightly higher than the total proposed FCC budget the administration offered in February (see 1602090067).

Thune is now attaching the legislation (S-2319) he introduced in November that would allow for spectrum auction deposits to be delivered directly to the Treasury. Senate Commerce easily cleared that bill in December (see 1512090059). The draft would codify a prohibition of the FCC for implementing a Federal-State Joint Board on Universal Service recommendation to limit USF funds to one line per household and would avoid disruption of E-rate funding by exempting the USF from the Antideficiency Act through FY 2018. Mostly unchanged is a provision mandating a GAO report on the FCC regulatory fee structure, to decide "whether the current regulatory fee structure correlates to the actual workload” of the agency, “whether the current regulatory fees are reasonably related to the benefits provided to the payor of the fees,” “whether the current regulatory fee structure has a disparate impact on certain payors or technologies” and “recommendations as to how the current regulatory fee structure should be adjusted.” Also like last year’s reauthorization draft, the new one contains a section codifying rules for commissioner vacancies and the ability of commissioners to continue serving beyond term expiration for that session of Congress.

“If the Commission submits any budget estimate or request to the President or the Office of Management and Budget, the Commission shall concurrently transmit a copy of that estimate or request to Congress,” and the same for “any legislative recommendations, testimony, or comments on legislation,” the draft text would mandate. It said no officer or agency can mandate the FCC submit those legislative comments for preapproval before showing them to Congress. The committee says this would bring the FCC in line with other independent agencies.

“It’s not real complicated, and we’re trying to design it in a way where we can get something through that would enjoy bipartisan support,” Thune told us of the FCC reauthorization bill.

Thune said it will be largely similar to last year’s draft bill. But the circulating version differs in several key ways. This reauthorization bill dropped language on FCC enforcement functions and the many agency process overhaul elements that have been popular with Republicans in the Senate and House. One such provision included agency requirements for rulemakings deemed economically significant, which was seen as a sticking point for Democrats last summer. House Republicans dropped a similar proposal in their bipartisan version of the FCC Process Reform Act, which the House approved by unanimous voice vote in November. Thune also had repeatedly described his earlier draft proposal as largely uncontroversial and likely to merit Democratic backing, which never happened last year.

Nelson’s stance may have softened for several reasons, a telecom industry lobbyist speculated. The net neutrality court decision on the industry challenge to the order is much closer, which would conceivably make any FCC reauthorization bill less of a backdoor way of addressing such net neutrality issues, he said. Both Thune and Nelson indicated legislative negotiation on net neutrality is ongoing this year, a process they began over a year ago. The lobbyist said Thune and Nelson recently succeeded in negotiating together on the spectrum bill Mobile Now, which they cleared from the Commerce Committee last week, their first big-ticket bipartisan success in the telecom area. That bipartisan cooperation may have eased cooperation on FCC reauthorization, the lobbyist said.

Thune questioned commissioners on FCC reauthorization at Wednesday’s Commerce Committee oversight hearing on whether they thought such regular reauthorization would lead to a “more responsible and productive relationship between the FCC and the Congress.”

“It is your right to write the rules, sir,” FCC Chairman Tom Wheeler told Thune. All four other commissioners agreed with Thune in backing such regular congressional reauthorization of the agency. Thune may be able to secure more affirmative backing for agency reauthorization -- in particular from Commissioner Jessica Rosenworcel, whose renomination is pending before the Senate floor and faces GOP holds -- through the questions-for-the-record process after the hearing, the telecom lobbyist said.

Reauthorization would likely be “very useful” in making the relationship “more productive, probably more trusted and more understood, for sure,” Thune said during the hearing. He told commissioners to “feel free to follow up with any suggestions you may have about that,” on any proposals they may want considered for inclusion. An FCC spokeswoman declined comment on whether Wheeler provided or will provide recommendations. House Republicans also began last year talking about wanting to reauthorize the FCC but stopped mentioning such legislation shortly thereafter.