In comments on the FCC's statutorily mandated regulatory review process, free market think tank, the Free State Foundation, has proposed incorporating a deregulatory evidentiary presumption into the review to better square it with congressional intent.
That presumption would be that “absent clear and convincing evidence to the contrary, the Commission shall presume that regulations under review are no longer necessary in the public interest as a result of meaningful competition among providers of such service.”
The FCC is required by statute to survey the regulations that apply to the providers of telecommunications service every two years to determine whether they are "no longer necessary in the public interest as the result of meaningful economic competition between providers of such service."
The FCC is directed by Congress to "repeal or modify" any regs that are no longer in the public interest. The FCC sought comment on that review.
The plan is for each bureau to issue a report within four months of the reply comment deadline, which would be May, then issue Notices of Proposed Rulemakings to repeal or modify anything that needs it within five months after that or sometime in October 2017.
FCC Republicans Michael O'Rielly and Ajit Pai have long argued that Congress in the 1996 Telecommunications Act meant for such regulatory reviews to clear away unneeded regs, rather provide an opportunity to justify or increase regulations.
In another context, the FCC under chairman Tom Wheeler has interpreted the statutory language about insuring advanced telecommunications is deployed to all Americans in a reasonable and timely fashion to mean that so long as it is not available to everyone, broadband deployment is not reasonable and timely and regulation is justified. ISPs and FCC Republicans have strongly begged to differ.
Republican commissioner Michael O'Rielly, who worked on the Sec. 706 "advanced telecommunications" language in the act as a congressional staffer, has said that was a misreading of the language and its intent, which was meant to be a periodic deregulatory sweep unless regs could still be justified.
Citing commissioner Ajit Pai, front-runner for interim chairman, and his suggestion at a Free State event that it was time to get out the regulatory weed whacker, the foundation says such a rebuttable deregulatory presumption in biennial reviews is more likely to reflect the deregulatory congressional intent in the act.
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