The House Communications Subcommittee wrapped up its FCC process reform hearing Thursday still poles apart, politically, on what changes are needed to make it a more effective and efficient agency.
The subject of the hearing was Republican-backed draft legislation similar to legislation that passed in the House last year only do fail to get Senate attention. There is little sign that Republicans and Democrats can come together on the current legislation.
On one side of those bills were Republican legislators who argued that they were necessary to speed FCC decisionmaking, tie it to a cost-benefit analysis of any new regulations, improve transparency and limit the FCC's ability to impose merger conditions that they suggest are a vehicle for backdoor regulations.
Subcommittee Chairman Greg Walden (R-Ore.) said that the communications sector is one of the few that is "firing on all cylinders," but that poor FCC process threatens the health of the sector and that codifying "certain protections" were necessary. Walden said he was only asking of the FCC what he would a a grade schooler: "Show your work."
The legislation would do a number of things, including putting shot clocks on decisions, limiting merger conditions, putting a number of process requirements on issuing and noticing rulemakings, allowing a majority of commissioners to put items on the agenda for a vote and much more.
To the point of back-door regulation, Walden pointed to a a 2011 blog posting by FCC chair nominee Tom Wheeler -- while he was working as a venture capitalist -- that the FCC could have put conditions on the AT&T/T-Mobile merger that could then be more generally applied.
Wheeler has since explained in his Senate nomination hearing that that comment had been "hypothetical speculation," and that a regulator's charge for reviewing mergers, a job he said was one of the FCC's most important, is to look at statutory directives from Congress, the facts in a specific merger and legal precedent.
But Walden and other Republicans cited that as a reason that legislation circumscribing merger conditions was necessary.
A number of Republican legislators at the hearing also cited transparency issues involving the IRS DOJ and NSA as further evidence that the committee should be looking to inject more transparency into the process. Citing what she said were all those "scandals," Rep. Marsha Blackburn (R-Tenn.) said that only in Washington did seem acceptable to allow an agency to be reckless with taxpayer money.
On the other side were Democrats who in effect said the committee was wasting its time debating bills similar, and even more onerous, than ones that had failed to get traction.
Full committee ranking member Henry Waxman (D-Calif.) said the legislation was a way to undermine the FCC's ability to adopt new rules and protect consumers, and that the only thing it would efficiently speed was endless legal challenges. It would also impose new costs and obligations, and effectively take the FCC out of the merger-review equation, leaving it to Justice, whose deliberations, unlike the FCC's, are nonpublic. He also pointed out that the FCC's review goes beyond antitrust issues to include diversity and impact on jobs and other public interest considerations.
Waxman said the dozen new mandates in the law would, among other things, eviscerate the public interest standard and slow the FCC process to a crawl.
Rep. John Dingell (D-Mich.), no fan of FCC process, agreed with Waxman that the legislation would throw sand in the FCC's gears while taking it out of the merger review business.
Waxman was particularly concerned about two new provisions. One would allow a minority of commissioners to require a bureau level decision to rise to a full commission vote. He said that would be akin to a Senate veto power. The other would require the FCC to apply an economic impact analysis on new rules that market forces or technology were unlikely to achieve the same result in a reasonable period of time.
Cable operators and broadcasters in comments entered into the committee record supported reform in general. By contrast, telco comments were more supportive of the specific legislation and individual elements.
