FCC Process Reform Bill Passes House

Prospects dim that it will go any farther in divided Congress

By John Eggerton -- Broadcasting & Cable, 3/27/2012 7:35:00 PM

A Republican-backed FCC reform bill passed the House 247 to 174 Tuesday, but is expected to go no further given the opposition by the White House and the signal from Senate Commerce Committee Chairman Jay Rockefeller (D-W.Va.) that he has no plans to bring up a Senate version.

The bill would limit the conditions the FCC could put on mergers, require it to do cost-benefit analysis and market impact analysis on its regulations before adopting them, with those reviews reviewable by a court. It would put shot clocks on FCC decisions -- no more dockets open for years -- and extend comment periods to 60 days (the FCC now has discretion over the length) and require that the FCC publish the language of decisions they vote on and release decisions in a timely manner.

The House vote came after lengthy debate of the defeat or withdraw of various amendments. Those included one that would have required anyone buying political ad time to disclose in TV station and cable operator political files the names of any parties that contributed more than $10,000 toward the campaign. The amendment, from Democrat Anna Eshoo (D-Calif.) was an effort to provide more disclosure for the direct ad funding made possible by the Supreme Court Citizens United decision.

The debate on the House floor mirrored, and featured many of the same players, the debate in the House Energy & Commerce Committee. Subcommittee Chairman Greg Walden (R-Ore), who sponsored the bill, argued that the bill was modest reform that applied the spirit of the President's executive order to government agencies on regulation cost-benefit analysis to the FCC, which is an independent agency and not bound by the order. The FCC has already said it would follow that spirit, and Walden gave FCC Chairman Julius Genachowski props for "really excellent" regulatory reforms. But he said a future chairman could wipe those away.

Eshoo, along with Henry Waxman, the bill's most high profile opponents, said it would gut the FCC by requiring onerous new process requirements that would result in a less effective agency. Ed Markey (D-Mass.) former chairman of the Telecommunications (now Communications) Subcommittee, and a famed phrase-turner, said the bill would create the "Fully Constrained Commission," and said it would be the Republicans' first jobs bill, since it would create jobs for lawyers and lobbyists.

Waxman said that the bill was not process reform but, "a fundamental assault on the FCC's ability to protect the public interest." He also said the fact that it subjected the FCC's regulatory justifications -- like cost-benefit and market analyses -- to judicial review meant that it could paralyze the FCC.

Rep. John Dingell (D-Mich.) chairman emeritus of Energy & Commerce called it a bad bill that does nothing to reform anything."

Eshoo said she opposed the bill "even though there are some parts that I support." The reference was likely to her sunshine amendment, which Republicans voted to approve in committee. That would allow more than two commissioners to meet outside of public meetings so long as one of each party was represented and no official business was conducted. The idea is that commissioners wouldn't have to meet by proxy through staff members when they want to talk out an issue.

National Cable & Telecommunications Association President Michael Powell praised the bill. "We applaud Chairman Walden for his leadership in securing U.S. House approval of this important FCC reform legislation which will promote greater transparency and predictability in Commission decision making," he said. "The U.S. telecommunications marketplace is a dynamic sector that is providing consumers with an endless array of competitive products and services that are transforming commerce, communication and education.  The regulatory framework envisioned by this reform legislation will ensure that private enterprise can continue to invest and innovate with more consistent and precise federal government oversight. We'll look forward to working with members of the House and Senate on these important issues."

The National Association of Regulatory Utility Commissioners was not ready to endorse the bill in its entirety, but it liked what it liked. "While NARUC has not taken a position on every section in this legislation," said the group, "we commend the House for moving several important reforms forward. The Federal Communications Commission Process Reform Act contains numerous bipartisan proposals that will increase transparency and streamline the agency's operations. We thank Chairman Walden and agree with him that FCC Chairman Genachowski has taken several steps to improve the way the agency functions.

"Importantly, the bill requires the FCC to release specific language in proposed rules for public comment within a reasonable timeframe. The legislation also makes the important work of our several Federal-State joint boards and conferences far more efficient, allowing us to address critical consumer issues in a more timely fashion. Both of these sections are bipartisan and signal an opportunity to improve the FCC's operations, an opportunity that should not be missed."