Partly Sunny, Chance of Reform

Reforming the FCC has been on a lot of people’s to-do list for a long time, but many of the criticisms remain unaddressed.

Republicans in the House, however, are looking to change that with an FCC reform bill they floated last week. Given some of the rhetoric at the hearing, it clearly wasn’t going to be an easy bipartisan sell. But it included some good ideas that should be explored.

Among them: shot clocks on commission decisions and limits on merger conditions.

And there are signs that the FCC, too, recognizes it is time for action. FCC Chairman Julius Genachowski has made a number of strides toward what has frequently been an ever-receding horizon. As Communications Subcommittee Chairman Greg Walden conceded last week, Genachowski has, among other things, been publishing the specific text of proposed rules, gotten final orders out the door within days instead of weeks, and has proposed eliminating outdated regs.

In fact, the chairman has pointed out on more than one occasion that the number of Notices of Proposed Rulemaking that actually contained the text of the rules being proposed is now 85%. If that seems like a no-brainer—and 15% too few, which it is—note that it is up from a previous figure of 38%, according to Genachowski. We are taking his word for it, but our experience suggests that is about right.

The time for releasing final orders has gone from an average of two weeks after a vote to three days, with most coming within one day, the chairman told Congress last month. That’s another welcome change since—even though items have been voted out—they have only been outlined to the public and are still subject to “editorial” changes.

Then there are the 49 outdated regs the FCC has already eliminated, and the 20 data collections it says it no longer has to get from the industry. Of course, there have been some additional data collections added and some new regs, most prominently the network neutrality regulations. That is the subject of a different editorial.

The FCC’s reform moves are positive steps and should be applauded (insert respectful “clapping” audio file here), but more needs to be done, particularly to break down the regulatory silos that still have the FCC dealing, at least structurally, with the same old regulatory silos. The chairman has pledged to tear down those walls, as it were. He has encouraged collaboration, and bureaus have been teaming up to deliver presentations at monthly meetings. But those are work-arounds rather than sledgehammer blows to that wall. More demolition work is needed.

The FCC has also tried to make its Website more consumer-friendly. But that remains a work in progress, and our advice to the FCC is to keep working. For those who need to consume the information quickly to report on it, the revamped site is not as easy to navigate, a criticism we have heard inside the commission as well, and more than once.

We are not signing on to all the Republican suggestions. As even reform proponents point out, the FCC needs some flexibility, or new brightline guidelines could impede a process they were meant to speed.

But the Republican leadership has at least shown a willingness to work on tweaking the draft.

One thing both sides appear to agree on is letting more than two commissioners meet outside of their monthly meeting so long as at least one commissioner from each party is represented and no actual work is done (insert sarcastic comment here). We’re not as enthusiastic about that, but agree with Consumer Federation of America’s Mark Cooper—an admittedly rare occurrence— that transcripts of those private meetings, if they are to be held, should be public record.

One thing that should not be tweaked out of the proposal is giving the FCC direction on what conditions it can and can’t put on mergers. For example, if the draft became law, the commission would have a hard time making the Comcast/ NBCU network neutrality condition stick if a court overturns its broader rules.

The public interest standard is sufficiently vague enough to cover a multitude of regulatory sins. Congress can help ensure that regulating by condition is not one of them.