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Hill Divided Over FCC Reform

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 be nonstarters.

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.”

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