Wheeler, Eshoo Gear Up To Attack House GOP Transparency Proposals

The trio of proposals, released last week by three subcommittee members, would create “additional bureaucratic requirements that will be harmful, not helpful, to consumers and to businesses that count on the FCC to establish rules or decide matters in a timely manner,” Wheeler will warn in his opening testimony. Wheeler intends to address each measure in detail, pointing out the problems with each. O’Rielly will disagree: “In general, I believe that the proposed changes, as well as others, would improve the functionality of the FCC and improve access to information by consumers and the companies that do business before the FCC,” he will testify.

Democrats also will object. “Collectively, these bills will tie the agency in knots by undermining established Administrative Procedure Act (APA) precedents, establishing a new FCC-specific regime that jeopardizes regulatory certainty, and opens the door to legal challenges on every Commission action,” subcommittee ranking member Anna Eshoo, D-Calif., plans to say in her opening statement. “By breaking the back of the delegated authority process, the legislation will encourage wholesale, last-minute lobbying to game the system, increasing the time and litigation related to FCC processes. If the Majority’s goal is reform, the Minority is prepared to offer constructive reform, not political retribution for the FCC’s net neutrality rules.” Eshoo will encourage different changes, such as the FCC upgrading its phone system to allow direct dialing to 911, “requiring the FCC to publicly report the number of pending decisions, the types of requests that are pending and how long those requests have been pending,” and advancing the FCC Collaboration Act, which would tweak the Sunshine Act rules allowing commissioners to meet more easily.

“Many see these charges as a backhanded slap at the FCC for adopting strong network neutrality protections,” Commerce Committee ranking member Frank Pallone, D-N.J., plans to say in his opening statement. “And although none of these allegations have stuck, the Republicans have put forward solutions to resolve problems that are hard to find. Nonetheless, I am willing to have the debate about whether we should modify procedures across all agencies. But these kinds of agency-specific procedural changes have several drawbacks.”

Subcommittee Vice Chairman Bob Latta, R-Ohio, offered a measure that would make the FCC publish the list of items put on delegated authority, prompting a defense of the practice from Wheeler. “The proposal suggests that there is something inherently wrong with the process, that it is some rogue activity that needs to be called out,” Wheeler will say. “In fact it is quite the opposite; a thoughtful measure that ensures the Commission is quick and responsive.” It would create delay, “adding more time to the process when items are ready, and by creating an incentive for strategic behavior, such as saving significant arguments until very late in the process,” Wheeler will say. “Now, perhaps that is the goal of the bill, but I hope not.”

“I suggest that the Commission needs to reassess, in a holistic manner, what items or proceedings should be done at the Commission level versus the Bureau level, and the default should be Commission level,” O’Rielly will contend. “For the narrow set of decisions that will be released at the Bureau level, Commissioners should be notified no later than 48 hours in advance, as provided for in the draft legislation.”

Rep. Adam Kinzinger, R-Ill., offered a draft bill compelling the FCC to publish drafts of items upon their circulation -- a move that “effectively re-opens the comment period” and means the FCC faces “litigation risk unless it addressed the comments received on the draft order,” Wheeler will warn. “The confidentiality of the Commissioners’ internal deliberations is a critical part of the process, long recognized by the law.”

O’Rielly will counter that the current practice doesn’t involve the public and should be modified. “I have suggested that FCC meeting items be posted on the FCC website at the same time they are circulated to the Commissioners, which is the approach taken in the draft legislation,” he will testify. “Doing so shouldn’t delay item consideration since there is a full week of sunshine to perfect the document pursuant to edits by Commissioners.”

Rep. Renee Ellmers, R-N.C., offered the third draft bill, which would make the FCC publish rules on the day the agency adopts them. “The problem is not that there is not resolve to publish an item within 24 hours, but rather that you can’t make that target if changes are being made by Commissioners hours or moments before the item is called for a vote,” Wheeler will say. Ellmers’ measure is “certainly an improvement,” O’Rielly will say. “It wouldn’t necessarily bar subsequent edits to the supporting documentation, but it might help limit unnecessary and problematic post-adoption revisions.”

Wheeler also plans to emphasize his internal focus on improving agency procedures. “One barrier to better collaboration is the current so-called Sunshine Act that prevents more than two Commissioners from discussing Commission business outside of a public meeting,” he will say, seeking overhaul from Congress on that count.

The GOP memo for the hearing accused Wheeler of contributing to many problems. “Since Chairman Wheeler was confirmed by the Senate, a number of process failings and procedural irregularities have come to light that not only prevent the public from meaningfully interacting with the Commission, but have prevented the Commissioners themselves from making informed decisions,” it said.