House Commerce Lawmakers Still Divided on FCC Process Bills

HR-2592 would force the FCC to post items within 24 hours of their circulation and was approved on a 30-22 roll call vote. The measure would “throw enormous sand in the gears so that the FCC will never get anything done,” Eshoo said before the vote. “That is maybe the wish of some, but I think that we want transparency to make the agency more effective, more trustworthy and all the things that come with transparency.” She warned that it would trigger comment cycles, which Republicans disputed, and allow industry lobbyists to swarm the agency. “This is Transparency for Lobbyists Act or Throw Sand in the Gears Act,” said Eshoo, who told us Tuesday that this bill strikes her as far more concerning than the other two process bills. “K Street will love it. Maybe it should be called K Street Bill.”

“Every lobbyist is going to be talking about it every time they circulate a draft,” said Commerce Committee ranking member Frank Pallone, D-N.J. He disputed the idea that this process measure would bring the FCC in line with other agencies.

“I couldn’t disagree more,” said Communications Subcommittee Chairman Greg Walden, R-Ore, referring to Eshoo’s concerns as “a parade of horribles that wouldn’t happen.” Rep. Adam Kinzinger, R-Ill., wrote the bill and defended it: “We’re not trying to slow down the FCC.”

The proposed process reform would lead to "a hamster wheel of endless racing around leading nowhere," FCC Chairman Tom Wheeler said during a news conference after Thursday's commission meeting. It would lead to endless revisions and will empower lobbyists to "invade the commission" and bill their clients more often, he said.

Commerce approved HR-2593, requiring identification and description on the FCC website of items to be decided on delegated authority. A partisan 22-29 vote spelled defeat for a Democratic amendment from Rep. Tony Cardenas, D-Calif., to give the FCC 270 days for a proceeding on rules regarding such notification without adding “an additional layer of bureaucracy” slowing down the agency, as Cardenas said.

Commissioner Mike O’Rielly said this measure would not hurt deliberation at the commission. “Notifying the American people of imminent staff decisions should be a basic priority,” O’Rielly said in a statement. “And with a Commission intent on avoiding accountability by delegating more and more important decisions to staff, from last year’s wireless competition report to key policies on the incentive auction, Lifeline, and E-Rate, it is more important than ever to shed some additional light on this process. Compared to the circulation time of items at the Commission level, during which the public has notice of the items as well as often descriptive materials, 48 hours is a very short time period, though the decisions can be just as consequential. The Commission is able to bypass quite a bit of public input through the abuse of delegated authority -- it should not be permitted to bypass public notice as well.”

The third GOP process measure, HR-2589, would require the FCC to post online any changes to commission rules within 24 hours of adoption. Commerce accepted an amendment from Rep. Jerry McNerney, D-Calif., to try to bring the measure in line with the Administrative Procedure Act and provide explanatory texts for the rule changes. Last year, House Commerce Republicans originally attached these process overhaul measures to the FCC Process Reform Act but removed them to secure bipartisan passage of that bill.

Amendment Debate

Lawmakers also faced disputes over amendments to the Kelsey Smith Act, which would allow law enforcement officials to access cellphone location information for a person in an emergency situation, and Kari’s Law Act, which addresses direct 911 dialing.

Walden secured an amendment to the Kelsey Smith Act making technical changes to the liability protections, a concern he had addressed at the subcommittee markup. CTIA Vice President-Government Affairs Jot Carpenter lauded Walden “for his amendment to provide clear, unambiguous liability protection language that ensures carriers complying with appropriate requests to aid law enforcement officials are not subject to litigation.”

Pallone pointed out again that the bill differs from the version with more privacy protections cleared in the previous Congress, and unsuccessfully tried to amend the measure. “I believe this bill strikes the right balance,” Walden said, citing concerns that the version with privacy protections would overrule the states that do not have those. Rep. Morgan Griffith, R-Va., supports the bill but wants clarifying language to spell out a need for law enforcement officials to provide a sworn written statement on what constitutes an emergency situation.

The Kari’s Law Act cleared with one bipartisan amendment from Eshoo and Walden successfully attached and without Eshoo’s location accuracy language. The Walden/Eshoo amendment included “gives us a national standard,” Walden said. “It clarifies the bill and also covers installers and operations of multiline telephone systems in addition to manufacturers,” Eshoo said. “These are good changes.”

Eshoo ultimately withdrew her other amendment, which lacked GOP backing despite her past conversations with Rep. John Shimkus, R-Ill. Her amendment would have forced FCC action on a proceeding on multiline telephone systems within 180 days, Eshoo said, lamenting that the agency has studied the issue for 22 years. “It’s about time that we do something very positive about this and not keep on kicking the can down the road,” she said. “I thought we were going to come to an agreement, Mr. Shimkus, and myself, but I don’t think that the notice of inquiry moves the ball forward.”

Shimkus saw an NOI as a “middle ground,” he said, emphasizing GOP skepticism of FCC rulemakings. “We’re concerned about what burden might be placed onto the smaller systems that have multiline systems but are small businesses, not knowing if it’s an easy technological fix or a more challenging one, that’s costly,” he said. “I don’t think we’re prepared to accept a possibly additional burden.” The data the FCC has on the issue now is years old, he said. Walden agreed that an NOI makes sense.

But Walden and Eshoo agreed to revisit Eshoo’s concerns later. “I think this is something we can find common ground on, perhaps in a separate bill,” Walden told her. Eshoo assented: “I’ll withdraw on that solid commitment.”

Other Measures

Pallone touted the agreement he reached with CTIA and the FCC regarding the goals of his emergency communications bill (see 1604270035). He successfully advanced an amendment that would remove the wireless provisions of his Securing Access to Networks in Disasters Act (HR-3998). He welcomes regular updates on the implementation of the recent deal due to its voluntary nature, he said.

The Telecommunications Industry Association lauded Commerce's clearance of the Spectrum Challenge Prize Act (HR-4190). “Prize competitions like the X Prize for private spaceflight and the L Prize for high-quality efficient lighting have served as useful catalysts for meaningful change,” Senior Vice President-Government Affairs James Reid said. “TIA believes that the ‘S Prizes’ that may emerge from this legislation could have a similar catalytic effect on the research and development ecosystem for innovative spectrum technologies.”

Other measures that Commerce advanced to the House floor included the Rural Health Care Connectivity Act (HR-4111) and the Anti-Swatting Act (HR-2031). Those were approved by voice vote without contention.