Republicans Ponder Raft of FCC Reforms

Republicans are looking at a bunch of different ideas for revamping the FCC, including making it produce quarterly and annual reports to Congress, hold to a shot clock for decisions and allow commissioners--in sufficient numbers--to propose items.

"Under both Democrat and Republican chairmen, the FCC has fallen into practices that weaken decision-making and jeopardize public confidence." That is the conclusion of the House Communications Subcommittee Republican Majority, according to a majority staff memo for Friday's FCC Process Reform hearing. The memo outlined a number of the reform proposals the committee has been considering.

FCC Chairman Juilus Genachowski and the other four commissioners are all slated to testify at the hearing. While the majority give Genachowski props for taking some steps to improve that process, they also conclude the time may have come to do something statutorily.

Among the suggestions by the majority are:

• Starting rulemakings with a Notice of Inquiry rather than a Notice of Proposed Rulemaking--the FCC currently does it both ways. They suggest that starting with the NPRM "presumes a need for regulation" and that, instead, the FCC needs to first examine the state of the marketplace in an inquiry.
• Publishing the text of proposed rules for public comment before the rules are adopted rather than seeking comment on open-ended questions or offering alternatives. "Providing specific text for a particular proposal will allow for more constructive input and a better end product," they say.
• Creating statuory minimums for public comment and for commissioner review of items, including between the close of a pleading cycle (public comment period) and the delivery of a draft, and between the delivery of a draft to the commissioners and a vote. A final version can sometimes not be hammered out until just before a vote.
• Implementing shot clocks on decisions.

• Publishing of the status of items, including possibly a list of unfinished items, current status and projected date of completion.
• Publishingf final drafts for items scheduled for vote at a public meeting.
• Setting time limits on release of the texts of orders the FCC has adopted so the lag time is not weeks or months. That is one of Genachowski's improvements, getting orders out more quickly after votes.
• Giving commissioners the power to initiate items. Currently the chairman controls the agenda. Some have suggested allowing a bipartisan majority of commissioners initiate items to "prevent a chairman from stopping consensus items."
• Showing of initial or continued need. That would be to address the criticism of a number of Republicans that the FCC should have to first show a consumer harm being addressed by new regs and conduct an economic and market cost-benefit analysis. Repubulicans also argue it would be in the spirit of President Barack Obama's memorandum to agencies about conducting cost-benefit analysis on any new regs. The FCC is not subject to that, since it is independent, but Genachowski has said he agrees with it in principle.
• Creating transaction review standards. "Parties with a pending transaction should not feel pressure to accept 'voluntary' conditions on the deal or to curtail their advocacy in other proceedings." That goes to criticisms of the Comcast/NBCU merger by some Republicans, including Republican FCC Commissioners Robert McDowell and Meredith Attwell Baker. The proposal says the FCC could be required to show statutory authority for conditions outside of its transaction review authority. That could be an opportunity to deep-six the Comcast/NBCU network-neutrality conditions if a court throws them out. Comcast agreed to abide by them even if they are ruled invalid by the court.
• Preventing the FCC from accepting ex parte material submitted less than a certain period of time before adoption of an order.

• Allowing sunshine period changes. Three or more commissioners could be allowed to meet outside of public meetings so long as at least one commissioner from each party was present. Democratic FCC Commissioners Michael Copps has long advocated for that change.
• Requiring statistical reports. The FCC could be required to announce at the beginning of each year when it would release its planned reports or prevented from proposing regs related to those stats unless the reports have been issued within a certain time period.
• Producing quarterly scorecards. The FCC could be required to submit to Congress a quarterly report on items it had adopted, ones that have not, and how many missed their proposed deadlines.
• Creating a state-of-the-industry report. The FCC could be required to produce an annual report to Congress "identifying the challenges and opportunities in the marketplace for jobs and the economy, and the items they propose to move to address those issues."