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Rep. Walden Fears Rough Waters Ahead for FCC

FCC Chairman Tom Wheeler agreed to be the lone witness at the House Communications Subcommittee FCC oversight hearing Tuesday (May 20), where he could hear it from both sides of the aisle on network neutrality, and Subcommittee chairman Greg Walden (R-Ore.) indicated Monday that it was not going to be a triumphal return for Wheeler.

"[G]iven some of the most recent decisions out of the commission, I fear that we may be heading into rough waters," Walden plans to say in his opening statement, according to an "as prepared for delivery" copy.

Last December, during the first oversight hearing with the new commission--Wheeler at that time was flanked by the other four commissioners--Waldens said he had advised the commission to proceed with regulatory humility and restraint. "Unfortunately, recent actions have hinted that my advice was ignored," he said.  Those recent actions include the vote last week to launch new open Internet rules that include the possibility of Title II reclassification and "forc[ing] broadcasters to divest stations and unwind shared service agreements that are beneficial to ensuring local content in smaller markets," Walden says.

"Contrary to any intended effect, the reclassification of broadband service under Title II will harm consumers, halt job creation, curtail innovation and stifle investment," said Walden.

He also expressed concerns about Media Bureau guidance about how the FCC would review stations transfers that included sharing arrangements, the gist of which was that the FCC would frown on arrangements that a smacked of skirting the rules or setting up de facto ownership positions  via associated financial arrangements. "In March, the FCC chose to restrict license transfers involving certain shared service agreements," says Walden, "which had long been blessed implicitly by the commission. This action was not debated by the commissioners, nor was it subject to a vote of any kind. Rather, it was announced by the Chief of the Media Bureau as a fait accompli." The National Association of Broadcasters has sued the FCC over that guidance, calling it arbitrary and capricious and a de facto regulation without benefit of notice or comment.

Walden also takes aim at FCC inaction as well." Although required under the Telecommunications Act, the FCC has failed to complete its quadrennial review of the limitations on ownership of broadcast properties. It has been six years since the commission last fulfilled this statutory mandate," he says.

Walden also pointed to criticisms of the FCC's network neutrality rulemaking process. The Republican commissioners did not get to see the draft item until after the Democrats, which Wheeler suggested was because they had already signaled they would be voting against imposing new net neutrality rules.

Commissioner Ajit Pai also said he had not been shown the final draft of an item on spectrum aggregation, also vote on last week, until abound midnight of the night before the vote. "According to Commissioner Pai’s dissent from the commission’s Mobile Spectrum Holdings item, his office received the revised item fewer than 12 hours before the Open Meeting and the item contained more than 3,000 revisions," said Walden.

"I find myself channeling commissioner Rosenworcel who said of the Open Internet NPRM that 'the process that got us to this rulemaking today is flawed,'" he said. Rosenworcel had asked that the network neutrality vote be delayed to allow for more public input, and said at the meeting that it was too flawed to be fair. She voted only to "concur" with the proposal, which is short of endorsement but counts as a vote for it.

"The committee has opined in the past that withholding of a revised draft item from other members of the commission until the eleventh hour precludes the scrutiny and analysis necessary for reasoned decision-making," adds Walden. "It is my hope that these occurrences were anomalies. Perhaps Chairman Wheeler will commit today to providing his fellow commissioners with adequate and equal time to review proposed orders and rules."