The House Commerce Subcommittee on Communications and Technology, chaired by Rep. Greg Walden (R-OR), discussed draft legislation to reform the Federal Communications Commission’s processes, codifying best practices to ensure consistency from issue to issue and from one commission to the next. The draft legislation reviewed by the subcommittee includes a series of sensible process reforms designed to improve the way the FCC operates.
The bill would:
- Require the commission to conduct an economic analysis of industries that would be affected by the rules before initiating a new rule-making and provide certain minimum amounts of time for comments.
- Prevent the commission from imposing burdens on consumers or industry unless it first identifies a market failure and consumer harm justifying the burden. If such rules are needed, the commission must perform a cost-benefit analysis and create performance measures for the rule’s continued evaluation.
- Ensure any conditions imposed on transactions are tailored to transaction-specific harms and within the commission’s general rule-making authority.
- Promote a renewed focus on the economic opportunities and challenges for the communications sector with a biennial report to Congress from the commission giving a big-picture view of what’s happening in the industry, the challenges for jobs and economic growth, and the Commission’s plans to address those issues
- Enhance consistency and transparency in the commission's operations by requiring the FCC to establish its own internal procedures for:
- adequate review and deliberation regarding pending orders,
- publication of orders before open meetings,
- initiation of items by bipartisan majorities, and
- minimum public-comment periods.
- Establish “shot clocks” so that parties know how quickly they can expect action in certain proceedings and provide a schedule for when reports would be released.
- Empower the commission to improve the way it conducts business and operate more efficiently with sunshine reform, allowing three or more commissioners to meet for collaborative discussions so long as certain safeguards are in place.
Subcommittee Republicans indicated they want to move an FCC reform bill from the drawing board to the president's desk, while Democrats argued that the majority's version of reform is the wrong way to proceed, and one top legislator argued it was an attempt to change procedure because some Republicans did not like the conditions and commitments in the Comcast/NBCU deal.
While all of the witnesses at the hearing on a discussion draft of reforms agreed that the FCC needed reforming, there were differences over how well it was already instituting reforms on its own, and what Congress should do to speed that process along.
The National Association of Regulatory Utility Commissioners's Brad Ramsay endorsed sections of the draft bill, agreeing with the section requiring a minimum of 30 days for stakeholders to comment on a proposal and 30 days to reply to other comments.
Consumer Federation America's Mark Cooper said the draft "undermines the ability of the FCC to protect and promote the public interest," pointing to provisions that seek to replace the public interest standard in a merger review with a "narrowly tailored harm" standard. This, he said "will undermine the ability of the commission to deal with the emerging characteristics of the industry at the precise moment and in the specific context of the merger. Mergers create unique challenges to the public interest that are best dealt with in the merger review."
Former FCC Commissioner Kathleen Abernathy said that "there may be a time and place for timelines and shot clocks to encourage Commission action. But it is difficult to implement a uniform timeliness."
Randolph May of the Free State Foundation agreed with most of the reforms, but said that the bill should go further by helping clear out old regulations as well putting tougher standards on adopting new ones.
Kyle McSlarrow, president of Comcast/NBCU, Washington, praised a Republican draft of FCC reform proposals as an "excellent effort" to codify long-talked-about reforms.
Public Knowledge President Gigi Sohn said that her organization supports some measures in the bill, particularly those which allow more than two commissioners to meet under protected circumstances. But PK has deep concerns about provisions emphasizing market failure in the process of making a Commission decision and requirements to issue a notice of inquiry before proceeding to a rulemaking.
Matt Wood, policy director of the Free Press Action Fund, said: “This unnecessary bill would benefit giant corporations at the expense of consumers. The real heart of the legislation takes aim at gutting the FCC’s public interest standard, the foundation of the agency’s mission on behalf of the American people. Instead of using this as an opportunity to truly reform the FCC, to stop the revolving door or to halt industry capture, what Chairman Walden is selling as reform would tie the agency’s hands and prevent it from ensuring the public is represented on an even playing field with the biggest industry players. We urge members of Congress to focus on things that help all Americans, not just further the narrow interests of the few media giants that contribute the most in campaign donations.”
