Recap: The Views of the Independent Agencies on Regulatory Reform

The House Commerce Committee's Subcommittee on Oversight and Investigations held a hearing on July 7, 2011 on independent federal agency regulatory reform.

Subcommittee Chairman Cliff Stearns (R-FL) said he is committed to making sure the goals of President Barack Obama's Executive Order 13563 are achieved. The Executive Order states that agencies must take into account the costs and benefits of proposed regulations; use the least burdensome methods to achieve regulatory goals; maximize net benefits; and evaluate alternatives to direct regulation. The Order also requires agencies to conduct periodic reviews of significant regulations to determine whether they are outmoded, ineffective, insufficient, or excessively burdensome.

The hearing was held to ask the Consumer Products Safety Commission (CPSC), the Federal Communications Commission (FCC), the Federal Trade Commission (FTC), and the Federal Energy Regulatory Commission (FERC) to explain why they did not submit a regulatory review plan to Cass Sunstein by May 18, as they were asked to do. While each of these agencies engages in some degree of regulatory review, none of them conduct the kind of top to bottom, regular retrospective review that will help to unburden our economy.

Chairman Stearns said that in drafting both the Communications and Telecommunications Acts, Congress emphasized the importance of deregulation. The FCC is required to review its telecommunications regulations every two years and its media ownership rules every four years. But these reviews fall short of what the President and this Committee have asked agencies to do. They only cover a narrow set of rules at the FCC and the Commission can't seem to get them done on time. Moreover, the Commission hasn't repealed or modified any significant regulations in recent review periods. Perhaps that’s because the Commission is too busy taking conclusion driven actions, such as the Net Neutrality order and the Chairman’s Section 706 report.

Although FCC Chairman Julius Genachowski did not appear before the Subcommittee, he did submit a written statement noting that since he too office the FCC has:

• Eliminated more than 50 outdated regulations (far more than it has adopted); the Commission’s deregulatory initiatives include several major reforms, some already adopted and others proposed, to remove regulatory restrictions on spectrum use, such as increasing flexibility in terrestrial and satellite spectrum bands (including the WCS and MSS spectrum bands, and wireless backhaul) as well as spectrum for unlicensed use (white spaces);
• Identified 25 sets of data collections from industry that are no longer necessary and we are moving to eliminate them;
• Reduced Commission backlogs, including an 89% reduction in satellite licensing applications and a 30% reduction in broadcast licensing applications; and
• Streamlined compliance processes – for example, by reducing the burden on radio stations, by eliminating some technical filings previously required with renewal applications.

He noted that these and other reforms have built on suggestions from his fellow FCC commissioners, and that over 95% of FCC decisions are bipartisan.

He also noted a number of FCC process reforms enacted since he became Chairman:

• Increasing the number of Notices of Proposed Rulemakings (NPRMs) that contained the text of proposed rules from 38% before his appointment to 85%;
• Significantly reducing the time between the vote on a Commission decision and its release, from an average release time of 14 calendar days before his appointment to just 3 calendar days, with a majority released within 1 calendar day;
• Ensuring that comment periods strike a healthy balance between expeditious decision-making and full stakeholder input; and
• Increasing transparency of agency decision-making by reforming our ex parte rules and docketing more proceedings to improve the information all interested parties receive and to produce a better record for Commission decision-making.

FCC Commissioner Robert McDowell did testify at the hearing. He focused his remarks on 2) the FCC's authority to deregulate, 2) examples of ongoing proceedings that propose streamlining various regulations, 3) examples of regulations ripe to repealed and 4) his suggested next steps. He said:
all future FCC regulatory proceedings should start with a thorough market analysis that assesses the state of competition in a sober and clear-eyed manner,
the FCC should view its statutory mission through a deregulatory lens, as Congress intended