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Public Statements

Federal Communications Commission Process Reform Act of 2012

Floor Speech

By:
Date:
Location: Washington, DC

BREAK IN TRANSCRIPT

Ms. ESHOO. Mr. Chairman, I rise in opposition to H.R. 3309.

Essentially, this bill guts the Federal Communications Commission, the FCC, by requiring new onerous process requirements which will result in an Agency that's less effective, less agile, and less transparent, the opposite direction, I think, of where we all want to go.

As ranking member of the Subcommittee on Communications and Technology, I want to thank the chairman for the work that he has done with us. He has always been very respectful, and the process I think has been a good one.

Democrats support modernizing the FCC because we want to enable the Agency to operate with increased openness and transparency, as I said. But, unfortunately, the bill doesn't accomplish these goals. Over the past year, our subcommittee has heard from countless industry representatives, administrative law experts, and public interest advocates; but there aren't any public interest advocates that support this bill, which I think in and of itself is instructive.

Amongst those experts the chairman mentioned is Phil Weiser, dean of the University of Colorado Law School, who is often cited and who has implied that adopting some of his proposed reforms is the way to go; but Dean Weiser tells us ``passing this law would be a grave mistake.''

Yet, despite the feedback of a bipartisan group of administrative law experts who suggested that this legislation could tie up the FCC in 15 years of litigation--that's a real job creator for lawyers--the House is going to vote today on this, on a bill which requires unique statutory mandates that apply only to the FCC, thus altering the way in which the FCC reviews transactions and exposing the Agency to new litigation risks.

H.R. 3309 mandates that the FCC undertake a cost-benefit analysis of any rule with ``economically significant impact.'' This requirement ignores the fact that the FCC already takes into account the impact of its rules on small businesses. Then to add insult to injury, the CBO estimates that, if enacted, H.R. 3309 would cost $26 million and require the agency to hire an additional 20 employees to handle the new rulemaking, reporting, and analysis activities required under the bill.

The chairman has said, well, it's a fee-driven agency. Fees from businesses? Fees from anywhere. It's still going to cost $26 million more and will add more to the bureaucracy that I think the majority really doesn't have much affection for. For nearly 80 years, the FCC has operated as an independent agency, responsible for regulating interstate and international communications by radio, television, wire, satellite, and cable. By most accounts, the FCC continues to innovate and implement reforms. The chairman was very gracious to outline what Chairman Genachowski has done under his leadership, including removing 120 obsolete regulations, drastically reducing the number of pending applications, and taking steps to increase transparency and stakeholder participation.

So, for all of these reasons, Mr. Chairman, I don't believe that H.R. 3309 is the solution, and that's why I am urging my colleagues to oppose this legislation even though there are some parts of it that I support. We need to ensure that the FCC's ability remains to protect consumers and to ensure a competitive marketplace in the years to come.

With that, I reserve the balance of my time.

BREAK IN TRANSCRIPT

Ms. ESHOO. Mr. Chairman, I rise in opposition to H.R. 3309.

Essentially, this bill guts the Federal Communications Commission, the FCC, by requiring new onerous process requirements which will result in an Agency that's less effective, less agile, and less transparent, the opposite direction, I think, of where we all want to go.

As ranking member of the Subcommittee on Communications and Technology, I want to thank the chairman for the work that he has done with us. He has always been very respectful, and the process I think has been a good one.

Democrats support modernizing the FCC because we want to enable the Agency to operate with increased openness and transparency, as I said. But, unfortunately, the bill doesn't accomplish these goals. Over the past year, our subcommittee has heard from countless industry representatives, administrative law experts, and public interest advocates; but there aren't any public interest advocates that support this bill, which I think in and of itself is instructive.

Amongst those experts the chairman mentioned is Phil Weiser, dean of the University of Colorado Law School, who is often cited and who has implied that adopting some of his proposed reforms is the way to go; but Dean Weiser tells us ``passing this law would be a grave mistake.''

Yet, despite the feedback of a bipartisan group of administrative law experts who suggested that this legislation could tie up the FCC in 15 years of litigation--that's a real job creator for lawyers--the House is going to vote today on this, on a bill which requires unique statutory mandates that apply only to the FCC, thus altering the way in which the FCC reviews transactions and exposing the Agency to new litigation risks.

H.R. 3309 mandates that the FCC undertake a cost-benefit analysis of any rule with ``economically significant impact.'' This requirement ignores the fact that the FCC already takes into account the impact of its rules on small businesses. Then to add insult to injury, the CBO estimates that, if enacted, H.R. 3309 would cost $26 million and require the agency to hire an additional 20 employees to handle the new rulemaking, reporting, and analysis activities required under the bill.

The chairman has said, well, it's a fee-driven agency. Fees from businesses? Fees from anywhere. It's still going to cost $26 million more and will add more to the bureaucracy that I think the majority really doesn't have much affection for. For nearly 80 years, the FCC has operated as an independent agency, responsible for regulating interstate and international communications by radio, television, wire, satellite, and cable. By most accounts, the FCC continues to innovate and implement reforms. The chairman was very gracious to outline what Chairman Genachowski has done under his leadership, including removing 120 obsolete regulations, drastically reducing the number of pending applications, and taking steps to increase transparency and stakeholder participation.

So, for all of these reasons, Mr. Chairman, I don't believe that H.R. 3309 is the solution, and that's why I am urging my colleagues to oppose this legislation even though there are some parts of it that I support. We need to ensure that the FCC's ability remains to protect consumers and to ensure a competitive marketplace in the years to come.

With that, I reserve the balance of my time.

BREAK IN TRANSCRIPT

Ms. ESHOO. Mr. Chairman, earlier the chairman of the subcommittee said that the bill doesn't change the public interest standard for reviewing mergers. That simply is not the case. The bill does change it. It alters the ability of the FCC to impose conditions for the public interest, which is a very serious issue.

I would now like to yield 3 minutes to the gentleman from Michigan (Mr. Dingell), the chairman emeritus of the Energy and Commerce Committee and dean of the House of Representatives.

BREAK IN TRANSCRIPT

Ms. ESHOO. Mr. Chairman, I would like to use some of our remaining time on this side to respond to several points that have been raised by my colleagues on the other side of the aisle.

First, while the majority argues that H.R. 3309 is only a ``light touch'' in making sure that the FCC follows the Obama Executive order on cost-benefit analysis, they failed to mention that such cost-benefit review is not judicially reviewable. That's a very important fact here.

The Executive order states that it's ``not intended to and does not create any right or benefit, substantive or procedural, enforceable, at law, or in equity by any party against the United States.''

H.R. 3309, therefore, would create another avenue for appeal and litigation by corporate interests that oppose the FCC's efforts to take actions in the public interest, and no other Federal Agency would be subjected to such challenges. That's number one. That speaks to, I think, the public interest which, I think, is at the heart of what the FCC's responsibilities are.

Second, Mr. Gingrey mentioned the shot clocks. There are 73 types of proceedings the FCC must consider, and each item can be, as we all know and anyone that is tuned in and listening to this knows, can be very complex. No wonder CBO estimated that H.R. 3309 would require the hiring of 20 additional employees.

Thirdly, as the majority placed in the Record those that support the bill--even Mr. Markey spoke of some of the large telecommunication companies--I think it's important to set down for the record who opposes the bill and what they have to say about it.

Bruce Gottlieb in the National Journal:

Layering new procedural requirements on top of existing ones would effectively halt the creation of nearly any contentious new FCC rules--in other words, achieve a result more or less like what Texas Governor Rick Perry had in mind for the Commerce and Education Departments.

Susan Crawford in Wired Magazine:

Although the bill's proponents say they aim to make things work more quickly at the FCC, the legislation will have the opposite effect: it will make it very difficult for the FCC to deal with any of the real-time telecom problems the country faces. What the Republicans seem to want, at bottom, is to grant the giant companies that sell us basic communications capacity--an essential utility for the 21st century--the ability to throw sand in the works at every opportunity.

From Philip Weiser, the dean at the University of Colorado Law School:

I am against passing this bill, which would give rise to unfortunate and unintended consequences that would undermine the FCC's future effectiveness without providing any real benefits.

From the Consumers Union:

The bill would require the FCC to adopt rules as long as they do not impose an additional burden on industry. The bill limits the FCC's ability to consider the public interest and protect consumers when considering mergers.

Mr. Chairman, this is no small item.

Then the Public Interest Groups Coalition letter of February 9 of this year:

These bills would severely hinder the FCC's ability to carry out its congressional mandate to promote competition, innovation, and the availability of communication services.

With that, Mr. Chairman, I would like to inquire how much time we have left on our side.

BREAK IN TRANSCRIPT

Ms. ESHOO. Mr. Chairman, I come to the floor this afternoon to offer an amendment to this bill that probably, for most people, as they were tuned in and listening to the discussion and the debate of the bill, may not have gotten too excited about it because it deals with the innards of an agency. But this amendment, I think, is probably one of the most important parts of the bill, and I'm very pleased that the Rules Committee found it in order.

This amendment goes to the heart of our democracy, and it's all about disclosure. We have the opportunity today to secure disclosure in political reporting for the voting public.

There's something very sick about our system today. People across the country are deeply and profoundly upset about the undisclosed sums of money that are being poured over and through our political system. And when that happens, it goes right to the heart of democracy.

Why? Because it's undisclosed. We do not know who is contributing. We don't know how much they're contributing. We don't even know if foreign countries are involved in this.

So this is really a very simple amendment. It's an amendment that adheres to the same principles that many of my colleagues, Democrats and Republicans, have supported before, and it works like this: If an organization buys political advertising time on broadcast television, on radio, on cable, or on satellite, they would be required to disclose their large donors, those who give $10,000 or more to air the ad.

There is today, in statute, section 315 of the Communications Act--and it's been in place since 2002--that covers national legislative issues of public importance. It also covers legally qualified candidates, or any election to Federal office. So there's something already in place. The only thing that's being added to this is that if you're going to buy time, $10,000 or more, that you are required to disclose and name who the donors are, who's contributing that money.

I think that this is very important. We are a democracy. We're not a plutocracy. What I hear over and over and over and over again from my constituents is the damage that Citizens United, the case that the Supreme Court rendered the decision--I think a disastrous one--2 years ago. We have the jurisdiction at the Energy and Commerce Committee and this subcommittee; it is within our jurisdiction to take this up in this bill.

Now, there is something else. Some people have said that this is burdensome--burdensome for broadcasters, burdensome for those that broadcast television, burdensome to radio, burdensome to cable, burdensome to satellite. They're not the ones that have to disclose, only those that buy the time.

And the files exist today. There is one file, one file only--now, there are other files for other responsibilities, but there's only one for political ads. Is America and our democracy not worth requiring those that want to buy the political ads to disclose who they are above $10,000? And that's it. So the law is already in place since 2002. The file is already there. There is no burden to the broadcasters, radio, TV, satellite, cable, as I said, but simply to report.

Now, there are those that say that that would be burdensome, that that would be burdensome as well. My question is, How heavy a burden is it? How heavy of a burden, how heavy of a lift is it to report and disclose to the American people? The American people have a right to know; and once they know disclosure is a disinfectant, they will make up their own minds.

With that, I yield back the balance of my time.

BREAK IN TRANSCRIPT

Ms. ESHOO. Mr. Chairman, obviously, my colleagues know that I'm a strong proponent of openness and transparency rules in government. I'm concerned about this amendment because it seems as if it would apply special Freedom of Information Act, FOIA, requirements on one agency alone.

As with the underlying bill, I am concerned that this would create confusion and inconsistency.

Most frankly, I also question what the problem is that we're addressing here. Just 2 weeks ago, Chairman Issa, the chairman of the committee with jurisdiction over FOIA matters, issued a report in which he gave an A grade for FOIA compliance relative to the FCC. It is also my understanding that the FCC is already publishing on its Web site logs for tracking, for responding to, and for managing FOIA requests. So it's a little confusing given the grade that Chairman Issa issued relative to the FCC and FOIA requests and relative to the issues that I raised.

So I think, perhaps, that the amendment may be redundant or simply not needed at all. Those are my observations, and I yield back the balance of my time.

BREAK IN TRANSCRIPT


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