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Benjamin Takes Gentle Aim at Republican Reform Proposals - Broadcasting & Cable

Benjamin Takes Gentle Aim at Republican Reform Proposals

Former FCC distinguished scholar undercuts key elements of bills
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Duke University law professor Stuart Benjamin plans to tell Congress that there are upsides to a series of FCC process reform bills being considered by the House Communications Subcommittee, but while praising Democrat-backed legislation, he skewers with understated barbs the hearts of the three Republican proposals.

Benjamin is former resident Distinguished Scholar at the FCC under Democratic Chairman Julius Genachowski.

According to a copy of his testimony for Friday's subcommittee hearing on the bills, Benjamin said they "Largely avoid creating novel legal regimes and wisely focus on disclosure."

But then he suggests that disclosure is not always a good thing. "Some disclosures can do more harm than good, because they inhibit effective decisionmaking processes," he says and, after suggesting the three Democrat-backed bills may fall into the category of disclosures that are attractive for their real benefits, suggests "modest" reservations about the Republican bills that appear more like body blows.

Benjamin suggests he has issues with 1) Republican proposals to require the FCC to publish proposed rules within 24 hours of their being circulated, which he suggests works against another proposal to give commissioners time to sufficiently vet proposals; 2) procedures for insuring the public has notice of and an opportunity to comment on submissions received after a comment period, under which he says "the Commission will either face a potentially endless process (submissions leading to responsive submissions, leading to yet further submissions, and so on) or will have to ignore potentially valuable in formation that becomes available after the comment window has closed"; and 3) publishing the language of a proposed rule, which he says will "cement" the transformation of a rulemaking process into a "rule-adopting" process, and adds he may be OK with those who think it is "fine to diminish the role of comments from the public during the rulemaking process because such comments don't make much difference anyway."

Benjamin is familiar to the House panel, not only from his testimony at a similar hearing in July 2013, but from his tenure at the FCC, when Benjamin took fire from Republicans, including Communications Subcommittee chair and former broadcaster Greg Walden, over Benjamin's writings, particularly "Roasting the Pig to Burn Down the House," in which he suggested broadcast spectrum would be better off in other hands, and that regulating them out of business might be one way to do it.

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