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FCC Reformers Unite for HillHearing

The House Communications
Subcommittee Republicans indicated Wednesday they want to move an FCC reform
bill from the drawing board to the president's desk, while Democrats argued
that the majority's version of reform is the wrong way to proceed, and one top
legislator argued it was an attempt to change procedure because some
Republicans did not like the conditions and commitments in the Comcast/NBCU

While all of the witnesses at a
Wednesday (June 22) hearing on a discussion draft of reforms agreed that the
FCC needed reforming, there were differences over how well it was already
instituting reforms on its own, and what Congress should do to speed that
process along.

Republicans generally want to
create shot clocks for action, require the commission to launch inquiries
whenever it proposes rules, always print the text of orders before adopting
them, essentially requiring the FCC to hew to deadlines and stricter standards
of justifying and implementing regs, including market and cost-benefit analyses
and making the regulatory standard more about preventing harms than an
"indeterminate" public interest standard.

Democrats at the hearing countered
that too strict a regimen could actually impede the process, while gutting the
public interest standard that they argue should be the FCC's North Star. Rep.
Henry Waxman (R-Calif.), ranking member of the House Energy & Commerce
Committee, said the draft had "serious defects" that would make the
FCC "less efficient and more bureaucratic."

The two poles were summed up by
FCC critic Rep. Marsha Blackburn (R-Tenn.) and Rep. Anna Eshoo (R-Calif.). Blackburn,
who has been a strong critic of FCC process and decision making, particularly
with its imposition of new network neutrality rules, said it was time to bring
the agency to heel. "[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," she

Eshoo countered that the FCC has
already taken pro-active steps toward more openness and accountability. She
said that the Congress should be wary of proposals, like some in the bill, that
she argued would diminish the ability to protect the public interest and
preserve competition. She was seconded by Rep. Mike Doyle (D-Pa.), who said the
reform bill should not limit merger conditions that the FCC imposes to meet
that public interest standard.

Waxman said the bill would impose
undue burdens on the FCC. He said that a cost-benefit analysis might be
appropriate for "a limited set of major rules," but should not become
a basis for "years of litigation." He also cited process reforms
under FCC Chairman Julius Genachowski, and said the FCC had already showed it
could reform itself "without the need for action by Congress."

Committee Chairman Greg Walden
(R-Ore.), also praised Genachowski for "publishing the specific text of
proposed rules, by releasing orders shortly after adoption, and by proposing to
eliminate unnecessary and outdated regulations," but said that was
discretionary and Congress should make it mandatory. "It's not asking too
much to have the FCC actually codify a set of best practices and operate by them,"
he said.

The draft, circulated by Walden,
would among many other things prevent the FCC from imposing merger conditions
that did not mitigate harms directly related to a merger, and prevent any
voluntary conditions from being made part of a merger order unless they were
ones that could be imposed under FCC authority as a general rule.

Waxman argued that that was a case
of the Republicans using policy to try and change an outcome they did not like,
in this case the Comcast/NBCU. " I am concerned we are making procedural
changes to address outcomes with which we don't agree," Waxman said. He
pointed out that Walden and others had criticized Comcast's voluntary
commitments (which they argue were not "voluntary" but extracted).
"That appears to be why the current draft legislation radically alters the
FCC's authority under the Communications Act and could eviscerate the public
interest standard."

Waxman joined virtually everyone
else in supporting the draft's proposal to allow more than two commissioners to
meet outside of public meetings--so long as each party is represented and no
actual business is conducted-- arguably the draft's only unalloyed bipartisan
proposal. Though even that drew caveats from hearing witness Consumer
Federation of America's Mark Cooper. He said that transcripts, not just
summaries, should be made public after such meetings.

One hearing witness, Randolph May of the Free State Foundation, agreed with most of the
reforms, but said that the bill should go further by helping clear out old regs
as well putting tougher standards on adopting new ones. He has long argued
that there should be a presumption that FCC regs should
sunset unless the commission can make an affirmative case that they are still
necessary. He pitched that "rebuttable evidentiary presumption" as
being a pretty easy fix.

Walden called the draft the
starting point for discussion, but indicated he thought a bill would be the end
point. He got a second from several Republican colleagues, including Joe Barton
(R-Tex.), former E&C chair, who said he would support the draft with a few

The National Cable &
Telecommunications Association cheered the effort but did not weigh in on any
specifics. "We applaud Chairman Walden and other members of the committee
for their work in examining FCC reform ideas that may promote greater
transparency and predictability in agency decision-making," said NCTA
President Michael Powell in a statement. 

"Given today's increasingly
competitive communications landscape, we appreciate efforts by the committee --
and by the Commission -- to engage in a ‘fresh look' at agency procedures and
to free providers from unnecessary regulatory obstacles that impede the
development of new, innovative consumer offerings."

As FCC chairman, Powell called for
FCC reforms,
a point made during the hearing when he was cited by May for a comment he made
as a commissioner that the FCC's bureaucratic process was "too slow to
respond to the challenges of Internet time."