House Hearing on FCC reform Won’t Lead to New Laws, Officials Say
A House Communications and Technology Subcommittee hearing on proposed reforms limiting the FCC’s power to review transactions and issue new rules is unlikely to lead to new legislation, said several industry and legislative officials in interviews Tuesday. Thursday’s hearing resurrects two bills that fizzled in the Senate in 20ll (CD March 27/12 p1). HR-3310 would consolidate numerous FCC reporting requirements into one annual report to Congress, and the more expansive HR-3309 would require the FCC to consider market forces before issuing rules, allow two commissioners to discuss commission business without issuing an ex parte and limit the power of the agency’s bureaus.
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Though many of the suggested reforms have bipartisan roots and are widely supported, none are likely to make it into law while bundled with the more controversial proposals, said Public Knowledge Senior Vice President Harold Feld. “The Republicans are grandstanding again,” said Feld, referring to the GOP-backed bills’ previous incarnation in 2011. “There’s no appetite for this in the Senate, no lobbying force in the industry that is gonna push this through."
Many of the reforms are designed to “steer the FCC from defaulting to regulatory solutions in situations where the commission ought to rely on market forces,” said Free State Foundation President Randolph May, who will testify at the hearing. Those reforms include a proposal that would require the commission perform a cost benefit analysis and determine “that market forces and changes in technology are unlikely to resolve the issue within a reasonable amount of time” before issuing rules that have an impact of more than $100 million, and limiting the agency’s ability to impose conditions on deals. Under the reforms, the commission could impose only conditions “narrowly tailored to remedy harms that arise as a direct result of the transaction” and “related to harms unique to the transaction that are not present more broadly in industry.” Though May said these proposals would help limit FCC impact on transactions, he said he plans to ask the committee to impose even “higher evidentiary burdens” on commission actions.
If those higher standards took effect, Feld said they would either lead to gridlock at the commission or the FCC would find a way to pay lip service to the new rules. The requirements would either “cripple the commission’s ability to solve problems” or “become another five pages tacked onto every rule” he said. Ex-Commissioner Robert McDowell, who’s also testifying Thursday, said the commission’s current standard of intervening in deals to impose “whatever the commission deems is in the public interest” is too vague. McDowell also said the proposed reforms don’t go far enough. The committee should take up a “fundamental rewrite of the Communications Act,” said McDowell, who is now affiliated with the Hudson Institute. The FCC didn’t comment.
The reforms would also change the way bureaus handle the commission’s business. A bill would require the FCC to provide drafts of “items to be issued on delegated authority” -- bureau orders, according to Feld -- to the commissioners “at least four business days before adoption” and allow two or more commissioners to require a full commission vote before the action is taken. The bill could be a reaction to bureau decisions that have later been condemned by commissioners, Feld said. Such a rule change could bog down the commission, he said. “The majority of FCC decisions are not that controversial,” Feld said. “This just produces more paperwork for the eighth floor."
A proposal to consolidate multiple FCC reports -- including the annual video competition programming report set for an FCC vote Friday -- into a biennial release is much less controversial, said several industry officials, and a similar bill passed the House by a voice vote in 2011. But Feld said Democrat opposition to the other measures proposed in the reform bills would likely also keep that rule change from passing in the Senate.
"These proposals aren’t going anywhere,” said a House Democratic aide. He condemned the committee’s leadership for proposing the reforms while the FCC is caught up in “huge issues,” such as the incentive auction and the IP transition. “The Senate has no interest in this,” he said. A House Republican aide countered that “we're doing this because it’s good policy.” Many of the proposed reforms had bipartisan origins, said the GOP official. “We're not interested in gutting this for people who want unfettered regulation,” he said. “Airing themes like this has merit,” said a cable attorney. Though the reforms “will deadlock like they always do,” even if the proposed reforms aren’t put into law, the commission can still follow them or take direction from them, said the lawyer. “They don’t have to be enacted by Congress to have some effect.”