Round 3 of FCC Oversight at House Communications Subcommittee

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The House Commerce Committee’s Communications and Technology Subcommittee held an Federal Communications Commission oversight hearing on March 19; each of the five FCC commissioners testified.

In his opening statement, Subcommittee Chairman Greg Walden (R-OR), a former radio station owner, said he does not believe the FCC is producing "high-caliber" policymaking, and has instead "devolved into a place where statutory obligations are left to languish in favor of scoring political points," and is too often overstepping its authority. He described the FCC’s network neutrality/Title II decision making process as "mired in procedural failures" and driven by the White House behind the scenes. Republicans had asked FCC Chairman Wheeler to use his discretion to publish the text of the open Internet draft before the Feb. 26 vote. FCC Wheeler had declined, saying that it was not regular order and could adversely impact the deliberative process that produces the eventual final language. He also has said he pivoted toward using Title II independently and not under pressure from the President's very public statement urging him to do so.

Chairman Walden said his concerns also include the FCC's use of delegated authority to make decisions at the bureau-level rather than at the commissioner-level, which the Republican commissioners have suggested constitutes bypassing them and their input. Chairman Walden said that an "excessive number" of proceedings remain unresolved while the FCC focuses on expanding "regulatory reach." Chairman Walden said he thought the FCC's regulatory overreach included being the arbiter of the use of personal information, deciding how states could spend their tax dollars, and "wresting control of content from creators and mandate its presentation on the Internet." (The FCC has proposed giving linear over-the-top video providers the same program access rights as traditional pay-TV providers.)

Of note, the Subcommittee had some process issues of its own as Democrats on the panel complained that the majority had circulated a draft of their FCC reauthorization bill overhauling the FCC's budget only 48 hours before the hearing, saying that was not enough time. Chairman Walden countered that it was not a markup, and that the Democrats had not always given the week's notice that full Committee Ranking Member Frank Pallone (D-NJ) said was customary. Rep Pallone suggested the committee might want to work on its own transparency issues before pointing fingers at the FCC and added that if Republicans want bipartisanship, they should provide more than 48 hours’ notice on drafts.

The FCC is forming a task force to review its internal procedures following criticism from Republicans, FCC Chairman Tom Wheeler announced. He will appoint one staff member from each of the five commissioners to review and compare procedures of similar agencies. Chairman Wheeler said the task force will be led by his special counsel Diane Cornell, and it will determine whether more change is needed. FCC Commissioner Michael O’Rielly said he welcomed the announcement and his staff will actively participate. “To be clear, the standard for the task force must be what is in the best interest of the American people and promotes a fair, open and efficient Commission process, not what other agencies happen to be doing. With this goal in mind, the Commission will surely be able to set a good government model other agencies can emulate. The task force should complement -- not substitute for -- Congress’ effort to move process reform legislation.”

Rep. Adam Kinzinger (R-IL) hinted at legislation that would specifically prevent the FCC from limiting the amount broadband service providers can charge for Internet service. Republicans and other critics have warned that the FCC's new net neutrality order, which proposes to regulate broadband Internet as a telecommunications service, opens up the future possibility of rate regulation. "So if legislation that said: 'Notwithstanding any provision of law, the Federal Communications Commission may not regulate the rates charged for broadband Internet access service' — that would be consistent with that view?" Rep Kinzinger asked Chairman Wheeler. "That is what we are trying to accomplish," Wheeler responded.

Rep. Doris Matsui (D-CA) said she would be introducing a bill that would create the first-ever incentive spectrum auction for government agencies.

Rep. Yvette Clarke (D-NY) appeared to be looking for Wheeler's support for installing and activating FM chips in cell phones, saying she wanted her constituents to be able to receive life-saving emergency broadcast information after the next terrorist attack or natural disaster. Wheeler said that he did not think it was the FCC's place to force wireless carriers to activate the chips. He said that there were some technical issues with the size of the antenna needed and its drain on the battery. He said he knew broadcasters had been taking out ads asking consumers to contact the FCC and Congress, but suggested the best approach would be to let those consumers choose for themselves. The National Association of Broadcasters has argued that unless the chips are widely available and activated, consumers don't have the choice to make.

Chairman Wheeler also defended the planned closure of Enforcement Bureau field offices that protect against airwave interference. He said centralizing the process would save costs and that there were currently too many people doing too few things. "Do I want to close the offices?" he asked, then did not answer by saying no, but by indicating that he was not looking forward to hearing from other members who might have offices closing in their districts, but that he had a flat budget, unfunded mandates by Congress, and was trying to operate more efficiently.


FCC Reauthorization: Oversight of the Commission (Communications and Technology Subcommittee) Statement (Chairman Walden) Statement (Commerce Committee Chairman Upton) Testimony (Chairman Wheeler) Testimony (Commissioner Clyburn) Testimony (Commissioner Rosenworcel) Testimony (Commissioner Pai) Testimony (Commissioner O’Rielly) Walden Slams FCC in Hearing Opening Statement (B&C - Walden) Democrats Complain Of Short Notice on FCC Reauthorization Draft (B&C – bill notice) FCC to review internal procedures amid criticism (The Hill) Statement (O’Rielly on Task Force) Matsui Wants Government Incentive Spectrum Auction (B&C – Matsui) GOP rep considers bill to bar FCC from regulating Internet costs (The Hill) Wheeler Says He Doesn’t Think the FCC Should Mandate FM Chip Activation (B&C – FM chips) Wheeler Explains Enforcement Bureau Cutbacks (B&C – enforcement) ACA Issues Get Hill Hearing (Multichannel News) Top GOP lawmaker calls net neutrality 'politically generated populist furor' (LA Times)