Setting Timelines for Revisiting Agency Decisions

Quite frankly, in the age of hyper-speed “Internet years,” the Federal Communications Commission’s approach to some issues is stuck in the age of rabbit ears, and this problem is expanding exponentially right along with our rules. While the Federal Communications Commission has statutory obligations to periodically review certain aspects of its rules, such as section 11 of the Communications Act, these requirements are generally given short shrift, when they are adhered to all. This is certainly an area where the agency needs to make significant improvement, but that doesn’t seem to be in the cards anytime soon. More broadly, the FCC needs to adopt procedures to proactively reexamine its rules and policies across its many proceedings. In particular, I have consistently pushed to add sunset provisions to agency orders. Let’s face it: nothing produces an honest assessment of a rule or program like its pending expiration. And the length of any particular provision may depend on a number of factors, including the state of the market, how detailed the rules are, and the resources needed to update the regulations.

In most cases, however, I expect that an evaluation of rules adopted in this fast changing sector should occur within five years. If it is not worth the cost to review the rules within five years, then I seriously question the benefit of retaining them or enacting them in the first place. The FCC deals with some of the most cutting edge issues and technologies. It also has a full docket. That is a recipe for precipitating, one small drop at a time, a swelling tidal wave of outdated rules and burdens. Perhaps if the agency made routine use of sunset provisions, these requests would not be viewed as votes of no confidence but rather as good government measures designed to ensure that our rules continue to serve their intended purposes, to the benefit of all.