Hill's Bills Drill Process Ills

On November 2, Rep. Greg Walden (R-OR), Chairman of the House Commerce Committee’s Subcommittee on Communications and Technology, and Sen Dean Heller (R-NV) took the wraps off legislation aimed at improving regulatory process at the Federal Communications Commission (FCC). Just how might that be accomplished? According to the bills’ sponsors, by imposing a number of procedural constraints on the FCC that would force it to act more transparently, more efficiently, and within more predictable time frames. In the nitty-gritty details of the bills there are some interesting highlights.

When issuing a notice of proposed rulemaking (NPRM), the FCC would have to:

• provide comment and reply comment periods of at least 30 days each;
• expressly identify a previous action (e.g., Notice of Inquiry, prior NPRM, court order) in the preceding three years from which the new NPRM is a “logical outgrowth”. Alternatively, the FCC could make a finding that the new NPRM will create no “additional burdens on industry or consumers” or that an NOI would be “impracticable, unnecessary or contrary to the public interest”;
• include the specific language of the proposed rule or rule amendment; and
• propose “performance measures” by which the effectiveness of the new/amended rule would be measured.

In adopting new rules or amending existing ones, the FCC would: first have to identify and analyze the “specific market failure, actual consumer harm, burden of existing regulation, or failure of public institutions that warrants the adoption or amendment”; and then provide a “reasoned determination” that the benefits of the proposal would outweigh its costs. Adopted rules/amendments would also have to include “performance measures” based (to the extent possible) on data already collected by the FCC.

These are broad proposals that would substantially alter, if not the way the current FCC conducts much of its business, then the way future Commissions are required to do business. The prospects for passage are far from clear – and a November 16 markup should further clarify the bill’s level of support – but the fact that that process has been formally initiated should send a clear message to the FCC that change may be on the way.