FCC's Wheeler Defends FCC's Process Reform, Criticizes House Bills At Subcommittee Hearing

Wheeler

FCC Chairman TOM WHEELER outlined his agency's progress towards reforming its processes and criticized three Congressional efforts to legislate the matter at a House Subcommittee on Communications and Technology hearing TODAY (4/30).  

In prepared remarks, WHEELER asserted that "the agency is more efficient, more transparent, and more engaged with the public. Most important, the agency is more productive, advancing multiple initiatives to spur innovation, investment, and economic growth, while protecting consumers." But on the three bills introduced in Congress to force the issue, WHEELER responded, "When considering new process reforms, we ask if the change will improve our ability to protect consumers and the public interest, including by responding efficiently to businesses that depend on us to decide matters efficiently. I have reviewed the legislative proposals at the center of this hearing, and have serious concerns that these proposals fail that test. They would create burden without concomitant benefit. They would single out the FCC, rather than work within the time-tested approach of the Administrative Procedure Act. In my judgment, they would hurt, not help, the Commission’s work and mission. Rather than cut bureaucratic red tape, they would add new layers."

WHEELER cited the creation of nine work groups and the assignment of a senior staff member to get process reform off and running, and touted the Commission's backlog reduction plan, claiming a 44% reduction in backlogged matters since last SPRING.  He also discussed the opening of an online Consumer Help Center to make the FCC "more user-friendly, accessible, and transparent to consumers."

And he defended the Open Internet Act proceeding, which drew harsh criticism from some quarters, as "one of the most open and expansive processes the FCC has ever run, contrary to what some commenters have claimed ... the net result was an open process resulting in protections that will assure the rights of consumers and innovators to use the Internet without interference from gatekeepers, while preserving the economic underpinnings for competitive infrastructure investment."

On the specific legislation in question, WHEELER criticized the bill from Rep. ADAM KINZINGER (R-IL) that would require the FCC to publish the draft of an item before it is sent to Commissioners for a vote, saying that, due to judicial precedent, "releasing the text of a draft order in advance of a Commission vote effectively re-opens the comment period ... It won’t take much for a legion of lawyers to pore over the text of an order and file comments arguing that new issues are raised by its paragraphs, sentences, words, perhaps even punctuation. This means the Commission would be faced with litigation risk unless it addressed the comments received on the draft order. This would result in the production of  a new draft order, which in turn could lead to another public comment period – and another if a new draft order were released in response to subsequent public comment. The end result: the threat of a never-ending story that prevents the Commission from acting – or forces it to accept undue legal risk of reversal if it ever does."

On the proposal by Rep. BOB LATTA (R-OH) to require pre-decisional notification and
description of items decided on delegated authority, WHEELER said that delegated authority is not "some rogue activity that needs to be called out" but is instead "a thoughtful measure that ensures the Commission is quick and responsive."

And on the bill from Rep. RENEE ELLMERS (R-MI) that would require the Commission to post rules adopted or repealed on its website within 24 hours, he said that the Commission already tries to do that, with 73% of the rules being published within one business day or less during his term as chairman. He cited the work schedule and last-minute nature of Commission activity as reasons not to make the one-day rule mandatory.

Reception: Chilly

WHEELER was greeted with skepticism from the majority Republicans on the panel, with Chairman GREG WALDEN (R-OR), who criticized the FCC's current structure for investing "incredible authority (in the Chairman) that none of the other commissioners has" with exclusive access to information and "special perks" to offer friends, who get access to information unavailable to others.  "None of us on this committee," WALDEN charged, "would tolerate the insult to our First Amendment rights that the commissioners at the FCC must suffer at the hands of the Chairman."  Ranking member ANNA ESHOO (D-CA) responded that WHEELER should not be treated as a "piñata," and WALDEN responded that he was referring to the powers the FCC Chairman holds, not WHEELER personally.

And BROADCASTING AND CABLE reports that ranking member FRANK PALLONE (D-NJ) introduced draft proposals for laws that would require the FCC to require the Commission to file quarterly reports with Congress and on its website with the total number of pending decisions and length of time they've been pending, allow more than two Commissioners to meet privately without triggering the Sunshine Act, require posting of internal procedures on the FCC website, and require coordination with the Small Business Association.

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