House Lawmakers Prepare for Another Dive Into FCC Process Legislation
Witnesses will offer differing views of the FCC transparency legislation to the House Communications Subcommittee during a Friday hearing. “Some provisions of the bills you are considering may dramatically extend the rulemaking process,” Stuart Benjamin, associate dean-research at Duke Law, plans to testify. He will point to provisions that “if a court required the Commission to take a hard look at all the arguments and data in each new set of submissions, the rulemaking process might never conclude.”
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The subcommittee will meet at 9:15 a.m. in 2322 Rayburn and consider three Democratic measures and a revamped FCC Process Reform Act proposal. Benjamin was referring to the Process Review Act when outlining his worries in the written testimony, though he said the version of the bill “ameliorates” many concerns he had when testifying on the subcommittee’s process proposals in 2013. This version of the FCC process bill comes from Communications Subcommittee Chairman Greg Walden, R-Ore., ranking member Anna Eshoo, D-Calif., and Rep. Adam Kinzinger, R-Ill. “There is no obvious reason why these provisions should be limited to the FCC,” Benjamin plans to say. “Applying them only to the FCC moves away from the [Administrative Procedure Act]’s valuable unification of agency procedures and standards.”
Free State Foundation President Randolph May and Robert McDowell, former FCC commissioner now with Wiley Rein, will testify supporting overhaul. Changes to FCC process “should be based on the principles of sound due process, transparency, accountability, fairness and efficiency,” McDowell will testify, saying “good ideas abound” in the various drafts.
“If enacted, the draft bills that are the subject of this hearing would constitute important steps forward in reforming the Commission’s processes and, frankly, I find little in them to disagree with as a matter of substance,” May will testify. “The draft [Process Review Act,] which requires the Commission to initiate proceedings either to adopt procedural changes or to seek public comment on whether and how to implement other changes, is commendably comprehensive.” May will urge Congress not to wait for the FCC to proceed with its internal review of processes.
The subcommittee plans to mark up Democratic and Republican process bills next week. It held one hearing on GOP process overhaul proposals, featuring testimony by FCC Chairman Tom Wheeler and Commissioner Mike O’Rielly. Wheeler said many of the GOP proposals, not listed for discussion Friday, are problematic for the FCC.
“The one reform that attracts near-universal support and is, I understand, the subject of several bills, is to repeal the prohibition on a majority of the Commissioners meeting privately to discuss substantive issues,” Jonathan Blake, a retired broadcast lawyer at Covington & Burling, plans to tell the lawmakers in a statement. “My legal mentor and I wrote a critique of that requirement when it was adopted 30-35 years ago as part of the Sunshine Act. Imagine such a requirement being applied to House or Senate members.”
Blake will also attack other ideas from the GOP proposals. It would “add complexity, red tape and delay” to tack on requirements in one GOP proposal for justifying the use of delegated authority in decision-making, he will say in his statement. “Another legislative proposal is to require the FCC to publish a proposed order/decision prior to its being voted on,” he will say. “Courts don’t do this and would probably consider it unthinkable.” Blake isn't listed as a witness for the hearing.