Subcommittee Renews Efforts to Improve Transparency, Efficiency, and Accountability at the FCC

July 11, 2013

WASHINGTON, DC – The Subcommittee on Communications and Technology, chaired by Rep. Greg Walden (R-OR), today examined legislative proposals to improve transparency, efficiency, and accountability at the Federal Communications Commission (FCC). Members reviewed discussion drafts of the FCC Process Reform Act and the FCC Consolidated Reporting Act, both similar to the legislation approved with bipartisan support last Congress. The draft bills are part of the ongoing effort to streamline obligations of the FCC and improve decision making while reducing regulatory burdens facing job creators. Additionally, the proposals before the subcommittee are commonsense solutions that also work toward achieving the president’s goal of a “smarter, more innovative, and more accountable government.”

“Former Chairman Genachowski did make progress in reforming the Commission but there is more to do. The agency has fallen short in the past under both Democrat and Republican administrations. Without codification of certain protections, it will undoubtedly do so again. Only statute can ensure good process from commission to commission. That is why we are discussing two draft bills today designed to minimize the potential for procedural failings, curb abuse, and improve agency decision making," said Chairman Walden.

Former FCC Commissioner Robert McDowell implored the committee to forge ahead with efforts to improve the functioning of the commission and codify any improvements in law. He said, "Experience has taught me that decreasing onerous or unnecessary regulations increases investment, spurs innovation, accelerates competition, lowers prices, creates jobs and benefits consumers."

Industry analysts Larry Downes added, “As the nature of technological innovation has both accelerated and mutated in the last decade, the FCC’s inability to eliminate needless roadblocks for entrepreneurs and incumbents alike has reached a breaking point. The agency continues to tinker with 21st century problems using a 19th century toolkit. Many of the agency’s processes are badly in need of reform and structure. They lack economic rigor, transparency, expediency or consistency. The agency urgently needs neutral, streamlined, and balanced decision-making processes. With them, the agency could become a genuine partner, accelerating adoption of new technologies and the economic growth that goes with them. Without them, the agency will increasingly stand as an obstacle to achieving the broadband ecosystem’s full potential to improve the lives of all Americans."

As the discussion turned to mergers and antitrust issues, one witness went so far as to call for the FCC’s altogether removal from the merger process. Responding to a question from subcommittee Ranking Member Anna Eshoo (D-CA), Richard J. Pierce Jr., Professor at George Washington University Law School, explained that the Federal Trade Commission (FTC) and the Department of Justice (DOJ) Antitrust Division have more experience and are better suited than the FCC to handle mergers. He said,” “I agree completely with Mr. Benjamin that it would make a lot of sense to take the FCC completely out of this. The FCC doesn't know much about antitrust law. The FTC and the Department of Justice know a lot about antitrust law. They have the power to impose conditions. They regularly impose conditions on mergers. Those conditions are specifically tailored to address the competitive issues that are raised by a proposed merger. That's something the FTC and the Department of Justice Antitrust Division know a lot about, and the FCC knows very little about. So I agree completely with Professor Benjamin that the far more sensible thing would be a statutory change that would probably require about 10 words. It says, ‘The FCC has no power over mergers. That's exclusively the realm of the DOJ and the FTC.’” See Pierce’s explanation here.

Chairman Walden concluded, "The last thing that we want to do is stifle an industry that is continually growing and innovating. Yet that is exactly what could happen if the FCC is not held to certain standards of decision making. The industry deserves an efficient and effective regulator we can truly call ‘expert,’ just as the public deserves a transparent and accountable federal government. These reforms are a good place to start."