House Democrats Balk at GOP Plan to Reform FCC

"The APA was enacted to increase consistency and predictability in the agency decisionmaking process throughout the federal government,” the committee Democrats said in the memo. “By focusing only on the FCC, however, the proposed legislation could undermine, rather than enhance, the efficiency and efficacy of the Commission.” Requiring the commission to identify market failure and actual harm to consumers for each rule that burdens industry or consumers “may be contrary to the FCC’s statutory mandate to serve the public interest,” as stated in the Communications Act, the Democrats said. Requiring “narrowly tailored” conditions also may prevent the FCC from acting in the public interest, they said.

FCC reform shouldn’t divide Democrats and Republicans, Walden said at a hearing in May. Commission reform “is not, and should not become, an exercise in partisanship, or serve as a cloak to attack past or present commissions or chairmen,” he said. Walden’s office didn’t respond on Tuesday to a request for comment.

Democrats defended FCC conditions that may be tangential to transactions. “Conditions imposed as part of the FCC’s transaction review are frequently necessary to produce public interest benefits that offset harms in order to secure Commissioner approval,” they said. “This bill could inadvertently lead to FCC denial of mergers and transactions that otherwise would have been granted if the parties were able to voluntarily commit to certain conditions."

Democrats said many of the other proposals would slow rather than speed FCC process. Making notices of inquiry a prerequisite to any rulemaking “could in many cases have significant unintended consequences,” they said. While sometimes appropriate, “an NOI typically adds six months to the rulemaking process,” the party said. Requiring an NOI could prevent the regulator from responding quickly to public safety or homeland security issues, or to implement new legislation from Congress, the Democrats said. Setting 30-day timeframes into law for comment periods could also hamstring the agency, Democrats said.

Mandating specific proposed rule language in notices of proposed rulemaking “would not account for instances when it makes more sense for the FCC not to include specific proposed rules,” the Democrats said: Requiring that final rules are the “logical outgrowth” of that specific proposed language “departs from well-established court precedent under Section 553 of the APA.” The GOP proposal “would seem to require the agency to issue a new NPRM if comments responsive to the NPRM identify a different and better way of tackling the problem at issue than the one reflected in the proposed rule language itself,” the Democrats said. Making the text of agenda items public before open meetings could “unduly delay the FCC’s adoption of final rules,” they said.

Committee member John Shimkus, R-Ill., supports editing sunshine rules to allow private commissioner meetings, he told us Tuesday. He co-sponsored a bill (HR-1009) with that provision. “I am pleased a draft bill has been put forward, and look forward to an end to this silly rule."

Former FCC Commissioner Kathleen Abernathy supports several of the draft bill’s goals, she said in written testimony prepared for Wednesday’s hearing. Conditions should only address merger-specific harms, and the FCC should take up unrelated matters in separate rulemakings, she said. Commissioners should be allowed to meet privately, she said: “The prohibition actually works contrary to the notion of collaborative spirit, discourages creative problem solving, and creates hurdles to a timely and effective decision-making process.” Shot clocks may be helpful, but Abernathy cautioned that “it is difficult to implement a uniform timeline for all proceedings."

The FCC “is in desperate need for reform,” but the GOP draft bill “would do severe harm” to the commission’s ability to protect consumers and promote the public interest, Mark Cooper, research director of Consumer Federation of America, said in written testimony. He said the draft “fails to address the fundamental flaws that have allowed industry to dominate the Commission, while it heaps reporting requirements on the Commission that will do little to improve the administrative process.”

The bill “would benefit giant corporations at the expense of consumers,” Free Press Action Fund Policy Director Matt Wood said. “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.”