The Communications & Technology Subcommittee is sending seven FCC process reform bills to the full House Energy & Commerce Committee for consideration. But the final versions of the measures may change, given the testy exchanges by subcommittee members on Wednesday.
The FCC’s work not only impacts the industries it regulates, but consumers, too, and that’s why it’s important the agency “functions in an effective, transparent” way, said Subcommittee Chairman Greg Walden (R-Ore), a former radio station owner, during the vote. Noting that the commission “falls short of the standard of a well-run agency,” Walden said, “D.C. insiders continue to get preferred access to information, while the general public waits in the dark until rules are already adopted and the commission decides to publish them. Even FCC commissioners find themselves in the dark when it comes to the work of the commission,” a reference to what the GOP commissioners said in recent hearings about how late in the process they sometimes find out the details of what’s to be voted on.
During those hearings, Walden said the committee wants to craft rules to bring more transparency to the agency’s decision-making process, not just for the commission as it exists now, but also for the future, no matter what party’s in charge.
The lynchpin bill considered and sent to the full committee is the FCC Process Reform Act; the draft measure from Walden, Ranking Member Anna Eshoo (D-Calif.) and Rep. Adam Kinzinger (R-Ill.) would direct the commission to enact several policies aimed at making its decision-making process more visible to the public. It would have the FCC adopt set minimum periods for public comment, establish policies for handling comments that come in late, and direct the agency to take action on several other transparency-related items such as publishing the status of open rulemakings and listing draft items commissioners are considering. It passed by voice vote.
Eshoo and Walden sparred over an amendment Eshoo offered to remove the one-year implementation delay to allow more than two commissioners to meet outside public meetings.
Eshoo wants all the changes implemented at once while Walden said last year they agreed to remove that in exchange for removing a cost-benefit analysis. Eshoo said she raised the same objection last year, but wanted the bill to move so she voted for it.
“This is a small thing. If you want to fight over this and delay it — let’s not pose for holy cards,” said Eshoo. Her amendment failed.
Kinzinger’s draft bill would require the agency to publish on its website drafts circulated for a vote or for an open meeting. Critics, such as FCC Chairman Tom Wheeler, said during hearings on FCC process reform this measure would result in endless rounds of public comments.
Walden said he consulted with legal experts who said it wouldn’t, however he offered an amendment that passed, to clean up the language. Eshoo said the amendment doesn’t address the concerns. She said “the fight on this was really about net neutrality.” She predicted the measure would “trigger a mess.”
The bottom line: “This will not prohibit the FCC from making changes” once an item is circulated, Walden said. Kinzinger’s draft bill passed by voice vote.
By a 17 to 13 vote the subcommittee passed a draft by Rep. Renee Ellmers (R-N.C.) requiring the text of rules to be published within 24 hours of a vote. She said that “makes common sense.”
There was much debate over the draft from Subcommittee Vice Chair Rep. Bob Latta (R-Ohio) to require the commission to list items to be adopted by “delegated authority,” meaning at the bureau level, 48 hours before they are effective. It doesn’t have to be a “long” description, Latta said.
However Eshoo said the chairman testified that the agency releases “hundreds of thousands” of these types of noncontroversial decisions and the 48-hour delay “has the opposite effect of what we’re trying to do.”
Walden said it was “truly remarkable” that she would oppose this, saying, “making this information available to those who may be affected is a good thing. It’s sunshine.”
Walden said the number of items decided on delegated authority is much lower; he and Eshoo argued over whose figures were correct, while Latta said the concept was for “people to know what’s happening before action is taken, not afterwards.” Latta’s draft passed 16 to 12.
The Democrats said up front they didn’t like the legislation offered from Kinzinger, Ellmers and Latta. Ranking Minority Member Rep. Frank Pallone of New Jersey called them “a step back” that would tie the FCC’s hands.
Democrats proposed thee drafts of their own. A bill from Rep. Yvette Clarke (N.Y.) would increase the amount of data the agency provides about its decisions. If passed, the commission would be required to report quarterly to Congress and to post on the FCC website data on the total number of decisions pending categorized by bureau, the type of request, and how long the requests have been pending. The subcommittee passed the draft by voice vote.
Other legislation from Rep. Dave Loebsack (D-Iowa) would require the chairman to post the commission’s internal procedures on the FCC website and update the website when the chairman makes any changes. This draft passed by voice vote.
Finally, a draft from Rep. Doris Matsui (D-Calif.) would order the agency to enhance its communication with the Small Business Administration.
And a measure not on the agenda sparked more heated debate toward the end of the markup. John Yarmuth (D-Ky.) complained that his bill to make the FCC require radio and TV to provide more details in disclosures attached to broadcast political ads was not being considered. Mike Pompeo (R-Kan.) said the effort to regulate one sector was “misguided and misplaced.”
In a debate over an amendment to the main bill that would use language from Yarmuth’s draft, Eshoo replied that the concept “is germane” to the discussion of FCC process reform. “This is about transparency for the votes of our country,” noting that even though there’s a message on the ad saying the name of who is paying for it, it’s hard to tell who is really behind such ads.
The amendment failed 17 to 13.