There’s an old saying that goes “when it rains, can’t fix the roof; when it don’t rain, the roof don’t need fixin.’” That rather sums up most efforts at government reform. When you’re out of power, you can’t really do anything about it. When you’re in power, it turns out things don’t really need fixing. So no shocker that Joe Barton (R-TX), ranking member of the House Energy and Commerce Committee, joined by Mr. Cliff Stearns (R-FL), ranking member of the Telecom Subcommittee, have decided to introduce an FCC reform bill now that (a) Democrats control Congress, and (b) Democrats control the FCC. You can find the press release here and the full bill text here.
If political expediency were a mortal sin, however, nothing would ever get done. So it is not enough to simply note that politicians of either party are more apt to want reform when they are on the outside. It is important to examine the bill in its own right. Given that a lot of folks in both parties and in the public interest community would like to see some longstanding issues corrected, and I have opined on the matter myself from time to time, it’s important to consider whether the Barton-Stearns bill makes a good start and a basis for going forward. Remember, we want functional government. If out of power Rs are now in the mood to address real issues and get substantive stuff done, the thing to do is make it easy for them to work together with Ds. Perhaps it will become a habit. OTOH, as Ds have learned over the last several month, agreement for the sake of agreement is not worth doing.
My personal feeling after a quick read is that this bill is not a bad place to start on some long-standing procedural gripes, but that there are a couple of things that worry me.
Details below . . . .
Here’s what the proposed FCC Reform Act does:
1) Require the FCC to publish the proposed language of actual rules, provide 30 days for comment and 30 days for reply comments, and then another 30 days for consideration on the record, before adopting, eliminating or modifying any new rule.
2) Require that “members of the Commission have adequate time, prior to being required to decide an issue . . . to review the proposed Commission decision document, including any specific language that is proposed to be adopted, as, modified in, or deleted from a regulation.” I presume this is before we get to the needed 90 days for public participation.
3) Set deadlines for things by category. e.g., how long will it take to do complaints.
4) Publish any item actually adopted within 30 days.
5) Whenever official items adopted aren’t published in 30 days, send a letter to the Chair and ranking members of the House Commerce Committee and Telecom Subcommittee.
6) Any year the FCC screws up on these deadlines, it will publish a big “here’s all the times we didn’t get stuff out on time” report.
7) Publish a list of what’s on circulation. If an item is on circulation more than 60 days, publish who has refused to vote.
8) For regular reports on industry statistics (like the various annual “state of competition reports”), publish the schedule for when these are supposed to come out and notify the Chair and Ranking members of Committee and Subcommittee when they are late.
Those following FCC Reform issues for awhile will recognize this as addressing the major complaints around Kevin Martin’s tenure as Chairman. In fairness to former Chairman Martin, he did not start these practices. Heck, I wrote my first “problems with the FCC process” piece back in 2004, when Michael Powell was still running things, and these problems were old hat by then. Be that as it may, the point is that the act tries to get at a number of things folks on both sides of the aisle have addressed for many years: how to get the FCC to be genuinely open to public comment, use transparent decisionmaking processes, and get stuff out in a timely way.
My chief problem with this is the one that has bedeviled me since I first started looking at this. If you are going to set a hard and fast rule in the law, how do you deal with special circumstances that arise? And how do you deal with voluminous reporting requirements? To quote from my favorite book: “And more than all else my son, of this take warning! To the making of many books there is no end, and much study is a weariness of flesh.” The FCC has a lot of reports it must publish. Some of them are on very controversial subjects, and a lot of them rely on interested parties showing up and providing the data. To fix the problem of getting reports out quickly, without fixing the problem of getting reports done right, is a recipe for disaster.
Same thing on fixing timelines for various categories of things. I’m all for deadlines. The failure of the FCC to decide on a pending MAP Petition for Reconsideration filed back in 1993 still grates on my nerves. But I’ve also been in merger reviews and other proceedings where parties are stalling on giving up information the FCC needs to make a decision. The usual solution is “we’ll wait for you to give us the info, since it’s you who wants the decision.” Deadlines and reports to Congress will create incentive for applicants to withhold information and leave the FCC subject to the pressure of looking like the delay is its own fault.
Similarly, I have some worries about the “publish the language, then 30 days, 30 days, and 30 days” provision. I certainly don’t like the situation that exists now, where the FCC publishes a Notice of Proposed Rulemaking that doesn’t actually propose any rules, but instead says “tell us about some very complicated subject.” Then, when the FCC actually is ready to decide, it publishes final rules as a “logical outgrowth” of its very broad NPRM that no one has ever seen before or had a chance to comment on before.
But the FCC needs some flexibility to respond to comments on the proposed rules beyond an “adopt as written, yes/no.” The thing that worries me is that the FCC will be faced with either disregarding good comments because they can’t tweak the rules, or an endless set of iterations as the rules are refined over and over again in response to comments.
I’d like to think we can find some middle ground on some of these issues. That may not be possible, and we may just have to decide which bad effects we find more tolerable. Public policy often turns out like that. It may also turn out to be better to let the new FCC take a crack at resolving this by regulation rather than putting this into inflexible statutory language.
But at the end of the day, we cannot let the fact that any proposed solution will have costs blind us to the cost of doing nothing. The problems the Barton-Stearns bill tries to address are real and long-standing. Wherever we ultimately end up, this looks like a good place to start the discussion.
Stay tuned . . . .