Federal Communications Commission Process Reform Act of 2012

Floor Speech

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Mr. WALDEN. Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, ladies and gentlemen of the Assembly, the communications and technology sector is one of the most competitive, innovative, and open sectors of our economy. From fiber optics to 4G wireless service, from the smartphone to the tablet, to the connected TV, this sector has been creating new services and new devices and high quality jobs that come with high-tech innovation and investment.

Now, despite a lackluster economy, wire line, wireless, and cable providers invested $66 billion in broadband infrastructure in 2010. The U.S. is now leading in the cutting-edge wireless technologies. If we want this to continue, though, we need to avoid needless bureaucratic red tape and fix broken processes at the FCC.

Communications and technology companies and the public deserve a more transparent and responsive government agency, and that's exactly what the legislation before us now would accomplish, bringing transparency, bringing accountability to the Federal Communications Commission.

The bill is the fruit of the Energy and Commerce's own open and transparent process. Last May we invited the commissioners of the FCC to testify about improving their processes, and we heard from them about the process problems that have occurred at the agency when it's been headed by chairs from both parties. This is not about this commission. It may be about a prior commission, but it's about a systemic problem.

In June, staff released a discussion draft, and we held a legislative hearing with a diverse panel of experts representing industry, think-tanks, consumer groups, academia, and the States. We listened to what they had to say about the various ideas that were on the table, and we began to work to modify those ideas into something that was workable.

In response to the views presented at the hearings, as well as additional input from stakeholders and colleagues on both sides of the aisle, we refined the draft legislation.

Then, in November, the Subcommittee on Communications and Technology held an open markup of the bill at the subcommittee level. The text is there. Everybody had a chance to see it, everybody had a chance to work on it and amend it.

Earlier this month, the committee marked up the

bill, the full committee did, with several bipartisan amendments that continued to improve the FCC processes. So, in large part, the FCC Process Reform Act asked the FCC to go through a process similar to what we just went through in the committee, on the Energy and Commerce Committee, to actually craft this reform legislation. And then we asked the FCC to implement the kinds of reforms that we implemented in this very House to avoid abuses that had taken place in the past.

Now, the FCC regularly issues final decisions without giving the public an opportunity to even review the text that they're considering. I want you to think about that for a moment. They actually issue final decisions without giving the public an opportunity to review the text.

We don't operate that way in the House, at least not anymore. The transition team that Speaker Boehner asked me to chair after the last election adopted a requirement that people have time to read the bill. A 3-day layover provision's in place in this House now so that the public has a chance to read the bills, we have a chance to read the bills, the press corps in the gallery behind us has a chance to read the bills.

What's wrong with asking a Federal agency that writes regulations that affect one of the most dynamic industry in our Nation--what's wrong with asking them to make their text available? We do that in this legislation.

Let me tell you part of the problem here. Last October, the agency introduced more than 100 new documents into the record of its universal service proceeding in the last few days of public comment. Giving the public as few as 2 days to comment on thousands of pages of new data isn't right. These are some of the drafts of documents right here behind me in these binders. Can you imagine, in 2 days, you're supposed to evaluate everything there?

As the president and CEO of the Wireless Association said, there are other elements of H.R. 3309, such as the provision aimed at preventing data dumps--this we would call a data dump--right before an item goes on sunshine, that would represent significant improvement in the regulatory process. Sensible regulatory policies can contribute to the wireless industry's ability to continue serving as a catalyst for innovation, economic growth, and job creation.

So we're trying to get the commission not to do data dumps, to be more transparent. The bill would require the FCC to provide the public a minimum amount of time to review filings and comment on proposed rules. It is your business, after all. The agency ought to let you have a chance to participate.

Now, unlike executive agencies, these are the ones under the direct command and control of the President of the United States. The FCC never assesses the costs and benefits of regulations. Not required to, so they don't do it always. They can, but they don't.

Now, President Obama issued an Executive order that required executive agencies to actually assess costs and benefits of every single regulation they issue. That's from the President of the United States. And his Executive order requires a more stringent test for major rules. These are the ones affecting the economy in the area of, like, $100 million.

The FCC is not one of those executive agencies. It does not have to follow what the President of the United States tells the other agencies to do because it's an independent agency. So everything the President's asking all the other agencies to do, in this legislation we're saying, FCC, you should do it as well.

Now, President Obama appointed a jobs council. How do we make America more competitive? How do we improve the processes that really drive economic growth?

That jobs council called on this Congress last year to require independent agencies like the Federal Communications Commission to actually conduct a cost-benefit analysis before putting more red tape on industry. Go find out what it's going to cost to do what you propose to do.

Now, I want to make it clear. We didn't require the FCC to do the more onerous test that the President requires. The bill is less onerous than his own Executive order because it takes a lighter touch regulation applied to all regulations and applies it to the FCC's major rules. So we ratchet it down.

We're not trying to overburden this agency, but if every other agency of the government can do a cost-benefit analysis and even do a higher, more sophisticated level, what's wrong with asking the Federal Communications Commission to do a light-touch review of costs and benefits?

And you'll hear arguments that this is all brand new stuff, that it's never been done before, can't be done. By golly, we're going to litigate for 15 years. The whole world's going to end.

Look, this uses language right out of President Obama's order. The bill requires for major rules ``a reasoned determination that the benefits of the adopted rule, or the amendment of an existing rule, justify its costs, recognizing that some benefits and costs are difficult to quantify.'' That's in our language. It's also in the President's language, taking into account alternative forms of regulation and the need to tailor regulation to impose the least burden on society, consistent with obtaining regulatory objectives.

Virtually all of that language I just read to you is what the President of the United States has put as a requirement on the Agencies over which he has direct control. We're saying the FCC is under our control as an independent Agency. We're sort of the mother ship for the FCC as the Congress. It's up to us to carry out these provisions. They're good public-policy changes.

The FCC has a substantial backlog that affects small businesses and consumers--4,984 petitions, 3,950 applications that are more than 2 years old. All across the country people have been asking the FCC to take actions, to solve things, to come to decisions. They do it in a clouded, behind-the-curtain sort of way. And you sit on the outside as the public trying to grow jobs, invest and innovate, and you wait. You wait.

Two years is a lifetime for an entrepreneur in the communications marketplace. My wife and I were small business owners for 22 years. We were broadcasters. We've been before the FCC. We're not in that business anymore, been out of it since December of '07. So this isn't about me, except I've witnessed what you have to deal with so I'm trying to fix it here. 1,083 consumer complaints are more than 2 years old. The FCC has done nothing on them.

The bill requires the FCC, therefore, to set shot clocks for decisions so the public will know when to expect an answer. We don't tell them the length of those shot clocks or how they should be done. We're just saying look at your workload and give the public a gauge of when you will reach a decision. You decide the decision. You decide how long those shot clocks will be because you know better in terms of the management flow of your workload what's appropriate, but set some timelines.

In recent years, the FCC has leveraged its authority to review transactions to accomplish unrelated policy goals and insulate its rulemakings from judicial review. Now, what does that mean? It does so through last-minute side deals with applicants that are often not disclosed until just a few days or even hours before the FCC approves a deal. One problem with these voluntary commitments is they're not voluntary.

If you're trying to get the FCC to approve your transfer of license, the FCC, in recent years, has used that approval authority to go way beyond any statutory authority they have to issue rules in an area and they hold you hostage. Outside of the portals, we'd call it extortion, probably. Because what they do is say, look, we only have authority here to decide on transferring your license, that's true. Yeah, we're looking at that. But we want you to go off here and agree to do all these other things--over which we have no authority to mandate that you do them. We could not do a rulemaking if we wanted to because we don't have the authority under the statute to do it. But, by the way--wink, nod, twist your arm--if you don't, and you don't call it voluntary, then you can probably kiss this merger good-bye.

I don't think that's an appropriate role for the Federal Government. Nobody in this Chamber should support that kind of activity; and yet if you oppose this bill, in effect you're supporting that activity.

Now, I know there are some companies out there who aren't real wild about this because they see this as an ability to affect their competitors. Because they say, oh, that's great, we'll twist them at the FCC and we'll force them to do things the FCC couldn't force them to do on their own absent a merger or condition outside of their regulatory and legal authorities, and we'll get a little edge in the market, we'll put our finger on the scale. That's what happens. That should stop.

Some argue we should not treat the FCC differently from other Agencies. Well, in effect, that's what's happening today. Every other Agency is being directed by the President of the United States to do these things we're directing it to do through this legislation. But because it is different, it is an independent Agency, none of what the President is suggesting can be applied to the independent Agency.

Now, they say, well, we're going to do this on our own. Well, they may. And, frankly, the chairman of the FCC right now, Julius Genachowski--I've spent a lot of time talking to him--he has done some really excellent reforms. But the day he leaves and a new chairman comes in, all those could be wiped out. I think this needs to be in statute so we have good processes and procedures going forward, regardless of who controls what around the FCC in the future.

The FCC does act differently. Now, the Federal Energy Regulatory Commission, known as FERC, is a similar independent Agency, but it doesn't operate this way. It actually puts the text of its proposed rules out for the public to see before it votes on it. It actually builds its case before it makes its decision.

We have an issue going on right now where I've asked the FCC to give me the document they actually voted on as part of this effort on the Universal Service Fund rewrite versus what came out the back end when they were finished weeks later: 751 pages of regulations. They won't give me documents. You see, it changed behind the curtain. They circulate it around in private. They edit it. They've issued their press release and said, here's what we're doing, and then they change it. And then you wait. So the public doesn't have a chance to see what they're actually considering until it's too late and it's final. I think that's wrong.

Both sides of the aisle are for institutional reform at the FCC. Former White House adviser Philip Weiser said that the agency ``is in dire need of institutional reform.'' State commissioners have been calling for the reform of the FCC rulemaking process for years. In fact, the National Association of Regulatory Utility Commissioners--these are the people who are looking out for the ratepayers and the consumers; that is their job--endorses several provisions of this bill, including the actual language of the proposed rule be published for comment; specify a 60-day comment cycle; mandate that all commissioners have adequate time to review any draft decision before voting on it; and on and on. This is good, solid government reform legislation.
It does not protect the status quo. It does not say to the FCC, keep doing what you're doing, you're doing it great. Because some of us came here to change how the Federal Government operates in Washington to open up the process and make it more accountable and transparent. That's what this legislation does.

With that, I reserve the balance of my time.

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Mr. WALDEN. Before I yield to the vice chairman of the subcommittee, I just want to make a couple of corrections here to at least explain things.

The Federal Communications Commission would still have the public interest standard that it has today to deny a transfer if it's not in the public interest. We don't take that away. We don't take that away.

And on interoperability, the ranking member talked about this interoperability standard the Commission is now taking up. Ironically, that actually was first raised as part of a request by some to include in the AT&T-Qualcomm merger. Instead, the Commission actually did the right thing. It, in effect, is doing a notice of inquiry. It says, Before we do draft rules, let's go out and survey the marketplace and find out what the issues are. Then the next logical step is to come back with a notice of proposed rulemaking, i.e., the draft rules. This is what we are suggesting occur as regular practice as a result of this legislation.

Now I would yield 2 minutes to the gentleman from Nebraska (Mr. Terry), the distinguished vice chair of the subcommittee.

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Mr. WALDEN. We can easily explain the bill. We know what's in it. We've had a lot of work on it. We've done public hearings. We've listened to people. We've modified it to accommodate some of the great suggestions we have. We have bipartisan pieces in this bill. And the Commission still has the authority to deny transfers of broadcast license. They just can't go outside of their statutory authority to promulgate rules and kind of grab other issues and force people to do things that they couldn't do under their statutory authority.

I yield 3 minutes to the gentleman from Georgia (Mr. Gingrey).

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Mr. WALDEN. Mr. Chairman, before I yield to my colleague from New Hampshire, I just want to point out that we're not quite understanding the bill here on the other side because we do allow the FCC to maintain flexibility where necessary. The bill only requires the Notice of Inquiry on new rulemakings. The requirement does not apply to deregulatory rulemakings. And the FCC may waive the Notice of Inquiry in emergencies or where conducting both a Notice of Inquiry and a Notice of Proposed Rulemaking would be unfeasible.

So we tried to put some balance in here. But what's wrong with having the FCC, even in that case as raised by Mr. Doyle, take 60 days? They can decide how long this is and go out survey the market and say what effect and what are the issues and then come back and then they write their rules. It's like us having a hearing. This isn't a burdensome requirement.

I yield 1 minute to the gentleman from New Hampshire (Mr. Bass).

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Mr. WALDEN. Mr. Chairman, I've never heard a finer defense of a broken bureaucratic process than I've just heard.

Let me point out that the National Association of Regulatory Utility Commissioners--now, these are the folks who stand up for consumers and ratepayers--again, support many of the proposals in this bill. Specifically, they point out that the minimum 60-day comment cycle is good, the mandate that all commissioners have adequate time to review any draft decision before voting on it is good, and to require the actual language of a proposed rule to be published for comment is a good idea.

Again, the President's own Executive orders ask for these things in many cases to be done to the other Agencies, but he can't do it to this one. It's our job to do it here and to fix, reform, and drive for accountability and transparency against those who defend the bureaucracy as broken as it is.

I now yield 3 minutes to the gentlewoman from Tennessee, an extraordinary member of our subcommittee, Mrs. Blackburn.

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Mr. WALDEN. I thank the Chairman.

I appreciate the debate we've had today. I think it's been helpful. It hasn't always been enlightening, but it's been helpful.

Again, I would point out that the National Association of Regulatory Utility Commissioners praises what we're doing in this bill and the points of requiring actual language to be available for people to see.

All we're doing here is telling the FCC to operate like these other Agencies have been asked to operate by the President's jobs council and by the President's Executive order, but do so in a public and transparent way so that those who have business before the Commission know what the Commission is going to vote on before it votes or rewrites it and then puts it out later. Go out and survey the marketplace, decide if there's a harm, do a notice of inquiry, and get input like we do in hearings here, Mr. Chairman, and then propose rules and put those texts out there of those rules and let the public see.

The great defenders of the bureaucracy, my friends, some of them on the other side of the aisle, say, Oh, you can't change anything in Washington.

That's what we've heard for 40 years. Some of us came here to change Washington for the better. We did it when we changed the rules of the House at the beginning of this session to make our procedures more open and transparent.

My friends on the other side of the aisle were part of the effort that crammed a 2,000-page bill through here with no amendments allowed on the floor, one of which is being argued today across the street at the Supreme Court. The Republicans were denied the opportunity to offer a single amendment on the health care takeover bill on the House floor. They were denied every single amendment when these bills would come to the floor at thousands of pages. We've changed how the House operates so that can't happen again.

This bill is here under a modified open rule. The minority has 10 amendments on the floor. We had open markups in subcommittee and full committee.

What we're saying is we are here as Republicans to change Washington for the better. This bill does that. I urge your support.

I yield back the balance of my time.

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Mr. WALDEN. I share the gentleman's concerns that he raised. A lot of people do not understand that, especially in the area of unlicensed spectrum, you don't have a right to a protective communication. And certainly, in the analog world, you can listen in. We all know that from CB radios and things of that nature and family networks--you hear other people talking. This is an issue of concern, certainly, because all of us want to protect our families, those of us who have children. Mine now much older than that at nearly 22.

But this is certainly an issue, and I appreciate the gentleman raising it. I know he has legislation, although I would say this is the wrong vehicle for that because this is an FCC process reform bill, not a labeling bill, and the FCC does not use the phrase ``baby monitor'' in any of its rules, so, in effect, this labeling requirement may never take effect anyway.

And if the labeling requirement does take effect, it may cause some consumer confusion because you'd treat all analog monitors, perhaps, as unsafe and digital monitors as safe, even if that's not true for a particular brand of baby monitor.

So I oppose this amendment, and would encourage my colleagues to do likewise.

I yield back the balance of my time.

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Mr. WALDEN. I don't rise in opposition to disclosure. I think it's a good thing if it's done in the proper venue in the proper way. And that's not on this particular bill.

A similar amendment was brought before the full committee and rejected by the full committee. It has since been rewritten. It's better than what came before the full committee, and I commend my friend from California for that. But the way that this is written, I believe that it has lots of unintended consequences that can be difficult and doesn't accomplish what she's trying to accomplish in an effective way.

For example, my colleagues in the Chamber, you all would have to disclose, when you go to inquire about the purchase of time now in radio, TV, or satellite, your $10,000 donors. So any PAC that gave you $10,000 in the last 2 years would have to be listed. Now, my colleague from California, that would be like Abbott Labs and Google that gave you 10, and I've got some that gave me 10. You'd have to do that and disclose. You wouldn't have to do money you got from others.

But here's the deal, because I looked this up last night about one in the morning. I couldn't sleep, I was on west coast time, and so I went to the site where this stuff is disclosed--for us, that's the Federal Election Commission site. So I could easily find all the documentation for my dear friend--I just happened to go to her contribution history for last year. And only $30,000 of the $296,817 that she got from PACs would be disclosed as a result of this, which is about 10 percent. But she was able to have another $400,000, or thereabouts, from individuals. So you're really down to only seeing a tiny little window of about 5 percent, or less, that would be disclosed in the public file of a broadcast, satellite, or cable operator, or radio, which, by the way, is all on paper, at least for now, and not online. I was able to ferret out this information online last night, one in the morning, or thereabouts.

The other thing it does, I think it draws in every candidate in America the way this is listed. Because when you read the actual language of the amendment, it talks about political programming. And it defines it as meaning ``programming that communicates a message relating to any political matter of national importance.''

So I'm thinking about a city that's having a fight with the Federal Government over some new Federal regulation. That would be an issue of national importance; or if in a local community they were fighting

about something, again, that, I don't know, Second Amendment rights, First Amendment rights. That would be an issue of national importance. Further, the language talks about a legally qualified candidate for public office. So that would seem to be any candidate for public office at any level.

So then you have public broadcasting that could be pulled into this because they have people that underwrite programming that deals with issues of national importance. So could that be that every public broadcaster would have to disclose somehow everybody that's paying for that programming?

Then you have the creative minds of the people who try to hide from disclosure. This would be real simple under this amendment because it says the look-back period is back to the last Federal general election. Whatever donors you've had at $10,000 would have to be reported before you could inquire about buying time and purchasing time. Well, it's not a reach to think that these clever little rascals out there would simply create a new committee every time they wanted to buy time. That's easy to do. They've got lots of money; they've got lots of attorneys. They just create the committee to attack Anna Eshoo, 2012. And it has no prior donors from the 2 years, so they escape this. And who among us here thinks that they won't do that?

So I don't think the amendment is written to accomplish the goal, and the goal is best achieved and accomplished through the Federal Election Commission, not the Federal Communications Commission. So we're about two letters off. I think it really raises a host of issues that are unintended consequences and should be defeated.

I yield back the balance of my time.

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Mr. WALDEN. Mr. Chairman, throughout the course of the debate today on the floor we'll have amendments offered by Republicans and Democrats, a total of potentially 10. This is one offered by my colleague from Florida (Mr. Diaz-Balart), which we will be supportive of. There will be at least one amendment on the other side we will be supportive of as well.

This one will require the FCC to make additional disclosures on its Web site and in its annual budget regarding its processing of Freedom of Information Act requests. I think this does fall in the category of reforming how the FCC operates in a positive way. It would increase the Agency's transparency with regard to how it complies with Freedom of Information Act requests. Additional disclosure and transparency is a good thing, and the burdens on the FCC are clearly modest, completely.

So I would urge passage of this amendment, and I yield back the balance of my time.

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Mr. WALDEN. This amendment would exempt from procedural reforms any FCC actions with regard to broadband access in rural areas. Now, I know the gentleman talked about representing a large rural district. My district in eastern Oregon is larger than his State of New York. It is 70,000 square miles. In fact, it's bigger than any State this side of the Mississippi River, I'm told.

This is my bill. I am an advocate for it because, in many respects, it's bad process at the FCC that harms those least able to afford big high-rise towers of lawyers to come and oversee the FCC. That's why we need a more open and transparent process. This would exempt the FCC from using good process when reforming the Universal Service Fund, for example.

I know the gentleman is fairly new here, but he may not have caught the part about the FCC doing a data dump in the final hours before they promulgated their rule on the Universal Service Fund, which meant it was very difficult, if not impossible, for anybody who really cared deeply about the build-out of broadband or of the future of the USF to go through literally thousands of pages. I used these earlier today in the debate on the underlying bill. We have binders and binders and binders of the actual documents that they dumped at the last minute. It's just not the way to do the public's business.

So I understand what the gentleman is saying. Mr. Terry, who is the sponsor of this bill, is a long-time advocate of rural broadband build-out, as am I, which is part of what we are hoping to accomplish in other legislation as well that has become law. The National Telecommunications Cooperative Association, the voice of rural carriers--the very people you're trying to help and genuinely so with your amendment--actually supports the underlying bill. Surely they don't think it will slow down rural broadband deployment.

So I appreciate the gentleman's commitment to rural broadband build-out. I think his amendment actually goes in the wrong direction in that it reduces transparency, accountability, and access for the very people we're trying to help.

Therefore, Mr. Chairman, I will oppose the amendment. I yield back the balance of my time.

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Mr. WALDEN. I thank the gentleman for yielding, and I thank him for working with this side of the aisle. You have been terrific and so have your staff as we worked through this.

This wasn't a surprise amendment by any means. We were able to sit down and work through it. We share your concern fully, and we are fully supportive of your amendment. And I thank you for raising this issue.

As a former radio broadcaster, having been involved in some emergencies--not hurricanes, clearly, in Oregon--but this is important. So we do support it. And again, I thank you for working with us in a bipartisan spirit.

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