Politico - Reforming FCC to Unleash Innovation

Op-Ed

By Representative Greg Walden

"If it ain't broke, don't break it." That's how the late Jim Quello, a commissioner at the Federal Communications Commission, described his approach to regulation. It's a view the FCC would be well-served to follow today.

Despite a lackluster economy, landline, wireless and cable providers invested $66 billion in broadband infrastructure in 2010, $3 billion more than in 2009 -- totaling more than a half-trillion dollars over the past 8 years. The U.S. is leading in cutting-edge wireless technologies. The result is innovation that was unthinkable a decade ago.

Before the FCC interferes in that marketplace with regulation, it should find compelling evidence that something is broken and that its remedy will likely improve the situation.
President Barack Obama appears to agree -- at least on paper. He issued an executive order last year requiring all executive agencies to conduct a cost-benefit analysis before adopting major regulations. He asked agencies to start outreach earlier and to be more responsive to the public. The president's Jobs Council also called on Congress to reform the processes of independent agencies.

In this vein, I introduced the FCC Process Reform Act, which the House plans to put to a vote on Tuesday.

Unfortunately, process at the FCC is broke and does need fixing. This is not the fault of any one administration or any one FCC chairman. Indeed, the current chairman, Julius Genachowski, has improved the commission's process in a number of ways. But it has fallen into sloppy habits over the years, and more needs to be done.

Sometimes the FCC acts before thoroughly examining whether regulation is needed. It's now time to stop putting the regulatory cart before the horse. That's why this bill requires the FCC to survey the marketplace, identify a failure and conduct a cost-benefit analysis before imposing rules.

The commission now frequently proposes to regulate without publishing the specific wording of a tentative rule. So public input can't be specific. The result is rules that could prove less well-vetted and more likely to have unintended consequences. My bill would require the FCC to publish the specific text.

Not even the House of Representatives operates that way. The transition team I led after the last congressional election adopted a requirement to make sure that the public -- and members of Congress -- have a chance to read each bill before a vote. If we can do it, so can the FCC.

When the FCC reviews a merger, it now often imposes unrelated conditions. These extraneous agreements may not correspond to any harm presented by the transaction, may not be justified industry-wide and, in some cases, are outside the commission's jurisdiction.
Such bootstrapping is unfair to the singled-out parties. It also results in poor policy.

Imposing extraneous conditions on a transaction that is not otherwise harmful is inappropriate. And if a transaction is harmful, imposing extraneous conditions cannot cure it. Merger conditions should be directly related to transaction-specific harms, and within the FCC's general authority.

For example, the agency last October introduced more than a hundred new documents into the record of its Universal Service proceeding in the last few days of public comment. Giving the public only two days to comment on thousands of pages of new data just isn't right. Recent commissions have increasingly done this sort of thing.

Also troubling is the way the FCC has treated the small businesses and consumers that interact with the agency on a day-to-day basis: 4,984 petitions, 3,950 applications and more than 1,083 consumer complaints have languished at the agency for more than two years. Consumers should not have to wait so long to get an answer from the FCC.

Two years is a lifetime for an entrepreneur in the communications marketplace. How many investments haven't been made because the FCC has dragged its heels? How many jobs have been lost by agency inaction? The FCC should set shot clocks for decisions, so the public will know when to expect an answer.

Much work remains before the FCC can fully meet the expectations of the American people. A former White House adviser, Philip Weiser, has said that the agency "is in dire need of institutional reform." While one chairman may make the FCC's process better, another may let it slip again.

Taxpayers and the communications sector deserve what only Congress can give them -- reforms that will last from one commission to the next, regardless of which party controls the legislature or the FCC.

Rep. Greg Walden (R-Ore.) is chairman of the Communications and Technology Subcommittee of the Energy and Commerce Committee.

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