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Dems: FCC Reform Bill Could Hurt, Not Help, FCC Process

House Communications Subcommittee Democrats say the Republicans are off base with their proposed FCC reform bill, arguing that it is "inconsistent" with the reasoning behind the Administrative Procedures Act and could undermine the commission, not help, it by imposing requirements that could reduce regulatory flexibility or merger conditions restrictions that could lead the FCC to deny mergers it might otherwise approve.

That came in a Democratic Staff memo in advance of Wednesday's (June 22) hearing on FCC reform.

Among the bill provisions they take issue with -- which is most of them -- are the bill's requirement that each notice of proposed rulemaking (NPRM) be preceded by a notice of inquiry (NOI), saying that in the fast-moving communications sector, that could, in some instances, add unnecessary delay to the process.

The Dems also say that including specific proposed rule language in each NPRM would be too strict a requirement, and that requiring rules to be a "logical outgrowth" of that specific language might then require a new NPRM whenever comments identified a "better way of tackling the problem" that the FCC had proposed.

As for the Republican's proposal that the FCC identify the market failure or actual consumer harm being addressed for every rule it imposes "may be contrary to the FCC's statutory mandate to serve the public interest." For instance, they argue, rules ensuring effective 9-1-1 service might put a burden on networks that was not directly related to a market failure.

The draft bill also proposes that the FCC ability to impose conditions or accept voluntary conditions on media mergers be limited to narrowly tailored conditions that address specific harms that arise from the merger and are consistent with rules it could apply more generally.

The Dems point out that the FCC has a public interest standard to protect beyond "quantifiable, economic analyses," and that if it was confined to the limits imposed by the Republicans, it might actually work against merger approvals. "[T]his 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," they wrote.

The June 22 hearing follows one last month with the four FCC commissioners, who all agreed to some extent that some changes needed to be made, though they did not all agree on what those should be. FCC Chairman Julius Genachowski also pointed out that he was in the midst of reviewing and revising rules to make the agency more efficient and cost-effective.