Hearing of the House Communications and Technology Subcommittee of the Energy and Commerce Committee - Improving FCC Process

Hearing

Today the Subcommittee revisits a topic that deeply divided our Committee last
Congress: so-called "FCC process reform."

Supporters of this legislation assert that this bill will make the Federal Communications Commission (FCC) more transparent and efficient. From our perspective, it is transparent that this legislation is an effort to undermine the agency's ability to adopt new rules, protect consumers, and promote competition.

And the only efficiency gained is the speed with which communications lawyers could
find new ways to take the FCC to court.

The bill circulated by Chairman Walden earlier this week includes the same defects as the legislation from last Congress. It still undermines the ability of the FCC to act quickly and efficiently by putting in statute a dozen new mandatory process requirements, with each one subjecting the FCC to new court challenges. And it still alters fundamentally the agency's authority to impose conditions during its transaction review process, effectively eviscerating the public interest standard that has guided the FCC for nearly eighty years.

The red-tape created by this legislation is astounding. The Congressional Budget Office estimated that implementing the legislation from last Congress would require 20 additional staff positions at the FCC and cost the agency millions of dollars every year.

And the updated draft is even worse than last year's bill. It contains new provisions that would further incapacitate the agency.

Ranking Member Eshoo and I asked Committee staff to consult with administrative and communications law experts to understand the impacts of the legislation.

The overwhelming consensus from the independent experts we spoke with was that
adoption of this legislation would be a serious mistake that would slow the FCC to a crawl.

They told us that the FCC-specific mandates in this bill would remove the Commission from the well-established precedents of the Administrative Procedure Act, which could lead to decades of litigation and breed uncertainty and confusion. The agency would be tied up in knots and unable to do much of anything except report to Congress on its adherence to deadlines.

I am pleased we will be able to hear from two of these experts today: Professor Richard Pierce of GW Law School and Professor Stuart Benjamin of Duke Law School. Professor Pierce is one of the leading authorities on administrative law in the nation -- he literally wrote the textbook on this topic. Professor Benjamin brings to us a unique perspective as an expert in both telecommunications law and administrative law who has spent time working at the FCC as a Distinguished Scholar.

I also welcome back to the Committee Mr. McDowell, Mr. May, and Mr. Ramsey.

Let me reiterate what I hope is obvious. Democrats are open to improving federal agency operations and efficiency, and the FCC is no exception. We proposed several reforms last Congress and will do so again this Congress. If there are sensible ways to make the agency more efficient and nimble, we should join together to do so.
But we seriously disagree about the wisdom of the current effort, and I hope the majority will reconsider its plans to push this through the House. We do far too many message bills that go nowhere in the Senate.

We have a real opportunity to enact meaningful bipartisan legislation that modernizes our communications and technology laws. But every day we spend arguing over this bill, which is going nowhere fast, is another missed opportunity.

Source