Hill Divided Over FCC ReformA primer of partisan takes on a ‘bipartisan’ effort 6/27/2011 12:01:00 AM Eastern
Republicans and Democrats were at odds last week over a series
of proposed FCC reforms. Like the defi cit and healthcare, both
sides agree that something needs to be done, but that’s about it.
Republicans got the ball rolling with draft legislation that, among other
things, took aim at the way the FCC conditioned the Comcast/NBCU
deal with a network neutrality requirement.
The draft was billed as a starting point for
bipartisan discussion; the debate it prompted
proved to be anything but.
Democrats fired back that the legislation
would not only undermine the commission
but could result in the FCC denying deals
that would have otherwise been approved.
The confrontation continued through dueling
memos and a Hill hearing last week during
which Republicans indicated they were
serious about moving a reform bill. “[W]e
need to move the agency away from an institution
driven by activists pursuing social
outcomes to one grounded in regulatory
humility and statutory obedience. Congress
should slam the FCC’s regulatory back door
shut, lock it and return the keys to the free
market,” said Marsha Blackburn (R-Tenn.),
one of the FCC’s strongest critics.
With equal subtlety, Democrats shot back
that, as it was currently configured, the legislation
could “eviscerate” the public interest standard,
as Rep. Henry Waxman (D-Calif.) put it.
About the only thing both sides could agree on was allowing more than
two FCC commissioners to get together outside of their monthly public
meetings—with the proviso that a member from both parties had to be
present, and a guarantee that no actual business would be conducted. And
even that drew a caveat from Consumer Federation of America’s Mark
Cooper, who said that under these circumstances, full transcripts needed
to be made public.
So, in the interest of brevity, below are some key Republican proposals
in the draft bill—followed by reasons why Democrats think they should
GOP: The bill requires merger conditions to be narrowly tailored to
harms directly resulting from the transaction, and that it only enforce voluntary
conditions it could otherwise impose under its rulemaking authority.
(By that reckoning, the FCC’s network neutrality condition on Comcast/
NBCU would not survive a court smackdown of the general rules.)
Dems: Parties to mergers often volunteer conditions because they recognize
their deals may not produce enough public interest benefits or
may cause specific harms. “This bill could
inadvertently lead to FCC denial of mergers
and transactions that otherwise would
have been granted if the parties were able to
voluntarily commit to certain conditions.”
GOP: The bill would require the FCC to
issue a Notice of Inquiry before every Notice
of Proposed Rulemaking, include specific
text from the proposed rules, set minimums
for comment periods and do a cost/benefit
analysis and market failure/consumer harm
determination for all rules. Dems: Those
“rigid statutory procedures and deadlines”
could lead to an inflexible process unresponsive
to the pace of communications change,
and by applying them only to the FCC, could
undermine coordination with other agencies.
GOP: The bill requires internal procedures
for “adequate deliberation over, and
review of, pending orders.” It also requires
publication of a draft order before open
meetings and would set minimums for public
comment period. Dems: “If it ain’t broke…” or, as the memo put
it, “The FCC’s deliberative decision-making process as it exists today
already properly and effectively balances the need for public input with
the need for expeditious decision-making.”
GOP: The bill allows a bipartisan majority of commissioners to put
items on the FCC agenda. Dems: Legislators did not address that proposal,
but the FCC’s top Democrat, Chairman Juilus Genachowski, has told
Congress he thinks that power should remain the province of the chairman.
GOP: The bill requires the FCC to set a shot clock for all proceedings.
Dems: They argue the FCC is already subject to a number of statutory
reporting requirements “that achieve many of the same goals.”