H. Rept. 114-305 - FEDERAL COMMUNICATIONS COMMISSION PROCESS REFORM ACT OF 2015114th Congress (2015-2016)
Committee Report
| Report Type: | House Report |
|---|---|
| Accompanies: | H.R.2583 |
| Committees: |
H. Rept. 114-305 - 114th Congress (2015-2016)
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House Report 114-305 - FEDERAL COMMUNICATIONS COMMISSION PROCESS REFORM ACT OF 2015
[House Report 114-305]
[From the U.S. Government Publishing Office]
114th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 114-305
======================================================================
FEDERAL COMMUNICATIONS COMMISSION PROCESS REFORM ACT OF 2015
_______
October 22, 2015.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Upton, from the Committee on Energy and Commerce, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 2583]
[Including cost estimate of the Congressional Budget Office]
The Committee on Energy and Commerce, to whom was referred
the bill (H.R. 2583) to amend the Communications Act of 1934 to
provide for greater transparency and efficiency in the
procedures followed by the Federal Communications Commission,
and for other purposes, having considered the same, report
favorably thereon with an amendment and recommend that the bill
as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 7
Background and Need for Legislation.............................. 8
Hearings......................................................... 10
Committee Consideration.......................................... 11
Committee Votes.................................................. 11
Committee Oversight Findings..................................... 16
Statement of General Performance Goals and Objectives............ 16
New Budget Authority, Entitlement Authority, and Tax Expenditures 16
Earmark, Limited Tax Benefits, and Limited Tariff Benefits....... 16
Committee Cost Estimate.......................................... 16
Congressional Budget Office Estimate............................. 16
Federal Mandates Statement....................................... 19
Duplication of Federal Programs.................................. 19
Disclosure of Directed Rule Makings.............................. 19
Advisory Committee Statement..................................... 19
Applicability to Legislative Branch.............................. 20
Section-by-Section Analysis of the Legislation................... 20
Changes in Existing Law Made by the Bill, as Reported............ 29
Dissenting Views................................................. 40
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Federal Communications Commission
Process Reform Act of 2015''.
SEC. 2. FCC PROCESS REFORM.
(a) In General.--Title I of the Communications Act of 1934 (47 U.S.C.
151 et seq.) is amended by adding at the end the following:
``SEC. 13. TRANSPARENCY AND EFFICIENCY.
``(a) Initial Rulemaking and Inquiry.--
``(1) Rulemaking.--Not later than 1 year after the date of
the enactment of the Federal Communications Commission Process
Reform Act of 2015, the Commission shall complete a rulemaking
proceeding and adopt procedural changes to its rules to
maximize opportunities for public participation and efficient
decisionmaking.
``(2) Requirements for rulemaking.--The rules adopted under
paragraph (1) shall--
``(A) set minimum comment periods for comment and
reply comment, subject to a determination by the
Commission that good cause exists for departing from
such minimum comment periods, for--
``(i) significant regulatory actions, as
defined in Executive Order No. 12866; and
``(ii) all other rulemaking proceedings;
``(B) establish policies concerning the submission of
extensive new comments, data, or reports towards the
end of the comment period;
``(C) establish policies regarding treatment of
comments, ex parte communications, and data or reports
(including statistical reports and reports to Congress)
submitted after the comment period to ensure that the
public has adequate notice of and opportunity to
respond to such submissions before the Commission
relies on such submissions in any order, decision,
report, or action;
``(D) establish procedures for, not later than 14
days after the end of each quarter of a calendar year
(or more frequently, as the Commission considers
appropriate), publishing on the Internet website of the
Commission and submitting to Congress a report that
contains--
``(i) the status of open rulemaking
proceedings and proposed orders, decisions,
reports, or actions on circulation for review
by the Commissioners, including which
Commissioners have not cast a vote on an order,
decision, report, or action that has been on
circulation for more than 60 days;
``(ii) for the petitions, applications,
complaints, and other requests for action by
the Commission that were pending at the
Commission on the last day of such quarter (or
more frequent period, as the case may be)--
``(I) the number of such requests,
broken down by the bureau primarily
responsible for action and, for each
bureau, the type of request (such as a
petition, application, or complaint);
and
``(II) information regarding the
amount of time for which such requests
have been pending, broken down as
described in subclause (I); and
``(iii) a list of the congressional
investigations of the Commission that were
pending on the last day of such quarter (or
more frequent period, as the case may be) and
the cost of such investigations, individually
and in the aggregate;
``(E) establish deadlines (relative to the date of
filing) for--
``(i) in the case of a petition for a
declaratory ruling under section 1.2 of title
47, Code of Federal Regulations, issuing a
public notice of such petition;
``(ii) in the case of a petition for
rulemaking under section 1.401 of such title,
issuing a public notice of such petition; and
``(iii) in the case of a petition for
reconsideration under section 1.106 or 1.429 of
such title or an application for review under
section 1.115 of such title, issuing a public
notice of a decision on the petition or
application by the Commission or under
delegated authority (as the case may be);
``(F) establish guidelines (relative to the date of
filing) for the disposition of petitions filed under
section 1.2 of such title;
``(G) establish procedures for the inclusion of the
specific language of the proposed rule or the proposed
amendment of an existing rule in a notice of proposed
rulemaking; and
``(H) require notices of proposed rulemaking and
orders adopting a rule or amending an existing rule
that--
``(i) create (or propose to create) a program
activity to contain performance measures for
evaluating the effectiveness of the program
activity; and
``(ii) substantially change (or propose to
substantially change) a program activity to
contain--
``(I) performance measures for
evaluating the effectiveness of the
program activity as changed (or
proposed to be changed); or
``(II) a finding that existing
performance measures will effectively
evaluate the program activity as
changed (or proposed to be changed).
``(3) Inquiry.--Not later than 1 year after the date of the
enactment of the Federal Communications Commission Process
Reform Act of 2015, the Commission shall complete an inquiry to
seek public comment on whether and how the Commission should--
``(A) establish procedures for allowing a bipartisan
majority of Commissioners to place an order, decision,
report, or action on the agenda of an open meeting;
``(B) establish procedures for informing all
Commissioners of a reasonable number of options
available to the Commission for resolving a petition,
complaint, application, rulemaking, or other
proceeding;
``(C) establish procedures for ensuring that all
Commissioners have adequate time, prior to being
required to decide a petition, complaint, application,
rulemaking, or other proceeding (including at a meeting
held pursuant to section 5(d)), to review the proposed
Commission decision document, including the specific
language of any proposed rule or any proposed amendment
of an existing rule;
``(D) establish deadlines (relative to the date of
filing) for disposition of applications for a license
under section 1.913 of title 47, Code of Federal
Regulations;
``(E) assign resources needed in order to meet the
deadlines described in subparagraph (D), including
whether the Commission's ability to meet such deadlines
would be enhanced by assessing a fee from applicants
for such a license; and
``(F) publish each order, decision, report, or action
not later than 30 days after the date of the adoption
of such order, decision, report, or action.
``(4) Data for performance measures.--The Commission shall
develop a performance measure or proposed performance measure
required by this subsection to rely, where possible, on data
already collected by the Commission.
``(5) GAO audit.--Not less frequently than every 6 months,
the Comptroller General of the United States shall audit the
cost estimates provided by the Commission under paragraph
(2)(D)(iii) during the preceding 6-month period.
``(b) Periodic Review.--On the date that is 5 years after the
completion of the rulemaking proceeding under subsection (a)(1), and
every 5 years thereafter, the Commission shall initiate a new
rulemaking proceeding to continue to consider such procedural changes
to its rules as may be in the public interest to maximize opportunities
for public participation and efficient decisionmaking.
``(c) Nonpublic Collaborative Discussions.--
``(1) In general.--Notwithstanding section 552b of title 5,
United States Code, a bipartisan majority of Commissioners may
hold a meeting that is closed to the public to discuss official
business if--
``(A) a vote or any other agency action is not taken
at such meeting;
``(B) each person present at such meeting is a
Commissioner, an employee of the Commission, a member
of a joint board or conference established under
section 410, or a person on the staff of such a joint
board or conference or of a member of such a joint
board or conference; and
``(C) an attorney from the Office of General Counsel
of the Commission is present at such meeting.
``(2) Disclosure of nonpublic collaborative discussions.--Not
later than 2 business days after the conclusion of a meeting
held under paragraph (1), the Commission shall publish a
disclosure of such meeting, including--
``(A) a list of the persons who attended such
meeting; and
``(B) a summary of the matters discussed at such
meeting, except for such matters as the Commission
determines may be withheld under section 552b(c) of
title 5, United States Code.
``(3) Preservation of open meetings requirements for agency
action.--Nothing in this subsection shall limit the
applicability of section 552b of title 5, United States Code,
with respect to a meeting of Commissioners other than that
described in paragraph (1).
``(d) Publication of Documents in Advance of FCC Voting.--
``(1) In general.--The Commission may not adopt any order,
decision, report, or action by vote of the Commission, unless
the Chairman causes the Commission to publish on the Internet
website of the Commission the text of such order, decision,
report, or action--
``(A) not later than 24 hours after the time such
text is placed on circulation for review by the
Commissioners; or
``(B) not later than 21 days before the date on which
the vote is to occur.
``(2) Text to be published; effect.--The text published
pursuant to paragraph (1) shall be the text intended at the
time of the publishing to be subject to a vote. Nothing in this
subsection may be construed to prevent the Commission from
making changes to the text after the publishing.
``(3) Exception.--This subsection shall not apply to a
portion of any order, decision, report, or action if the
publishing of such portion is likely to lead to a result
described in a paragraph of section 552b(c) of title 5, United
States Code.
``(4) Not agency action.--Publication pursuant to this
subsection shall not constitute `agency action' as defined in
section 551 of title 5, United States Code.
``(e) Timely Availability of Changes to Rules of the Commission.--Not
later than 24 hours after adopting a provision that will appear in the
Code of Federal Regulations, or an amendment to or repeal of a
provision that appears in the Code of Federal Regulations, the
Commission shall publish on the Internet website of the Commission the
text of the provision adopted or repealed, or the text indicating how
the provision is being amended, as the case may be.
``(f) Access to Certain Information on Commission's Website.--The
Commission shall provide direct access from the homepage of its website
to--
``(1) detailed information regarding--
``(A) the budget of the Commission for the current
fiscal year;
``(B) the appropriations for the Commission for such
fiscal year; and
``(C) the total number of full-time equivalent
employees of the Commission; and
``(2) the performance plan most recently made available by
the Commission under section 1115(b) of title 31, United States
Code.
``(g) Internet Publication of Certain FCC Policies and Procedures.--
The chairman of the Commission shall--
``(1) publish on the Internet website of the Commission any
policies or procedures of the Commission that--
``(A) are established by the chairman; and
``(B) relate to the functioning of the Commission or
the handling of the agenda of the Commission; and
``(2) update such publication not later than 48 hours after
the chairman makes changes to any such policies or procedures.
``(h) Federal Register Publication.--
``(1) In general.--In the case of any document adopted by the
Commission that the Commission is required, under any provision
of law, to publish in the Federal Register, the Commission
shall, not later than the date described in paragraph (2),
complete all Commission actions necessary for such document to
be so published.
``(2) Date described.--The date described in this paragraph
is the earlier of--
``(A) the day that is 45 days after the date of the
release of the document; or
``(B) the day by which such actions must be completed
to comply with any deadline under any other provision
of law.
``(3) No effect on deadlines for publication in other form.--
In the case of a deadline that does not specify that the form
of publication is publication in the Federal Register, the
Commission may comply with such deadline by publishing the
document in another form. Such other form of publication does
not relieve the Commission of any Federal Register publication
requirement applicable to such document, including the
requirement of paragraph (1).
``(i) Consumer Complaint Database.--
``(1) In general.--In evaluating and processing consumer
complaints, the Commission shall present information about such
complaints in a publicly available, searchable database on its
website that--
``(A) facilitates easy use by consumers; and
``(B) to the extent practicable, is sortable and
accessible by--
``(i) the date of the filing of the
complaint;
``(ii) the topic of the complaint;
``(iii) the party complained of; and
``(iv) other elements that the Commission
considers in the public interest.
``(2) Duplicative complaints.--In the case of multiple
complaints arising from the same alleged misconduct, the
Commission shall be required to include only information
concerning one such complaint in the database described in
paragraph (1).
``(j) Form of Publication.--
``(1) In general.--In complying with a requirement of this
section to publish a document, the Commission shall publish
such document on its website, in addition to publishing such
document in any other form that the Commission is required to
use or is permitted to and chooses to use.
``(2) Exception.--The Commission shall by rule establish
procedures for redacting documents required to be published by
this section so that the published versions of such documents
do not contain--
``(A) information the publication of which would be
detrimental to national security, homeland security,
law enforcement, or public safety; or
``(B) information that is proprietary or
confidential.
``(k) Transparency Relating to Performance in Meeting FOIA
Requirements.--The Commission shall take additional steps to inform the
public about its performance and efficiency in meeting the disclosure
and other requirements of section 552 of title 5, United States Code
(commonly referred to as the Freedom of Information Act), including by
doing the following:
``(1) Publishing on the Commission's website the Commission's
logs for tracking, responding to, and managing requests
submitted under such section, including the Commission's fee
estimates, fee categories, and fee request determinations.
``(2) Releasing to the public all decisions made by the
Commission (including decisions made by the Commission's
Bureaus and Offices) granting or denying requests filed under
such section, including any such decisions pertaining to the
estimate and application of fees assessed under such section.
``(3) Publishing on the Commission's website electronic
copies of documents released under such section.
``(4) Presenting information about the Commission's handling
of requests under such section in the Commission's annual
budget estimates submitted to Congress and the Commission's
annual performance and financial reports. Such information
shall include the number of requests under such section the
Commission received in the most recent fiscal year, the number
of such requests granted and denied, a comparison of the
Commission's processing of such requests over at least the
previous 3 fiscal years, and a comparison of the Commission's
results with the most recent average for the United States
Government as published on www.foia.gov.
``(l) Prompt Release of Statistical Reports and Reports to
Congress.--Not later than January 15th of each year, the Commission
shall identify, catalog, and publish an anticipated release schedule
for all statistical reports and reports to Congress that are regularly
or intermittently released by the Commission and will be released
during such year.
``(m) Annual Scorecard Reports.--
``(1) In general.--For the 1-year period beginning on January
1st of each year, the Commission shall prepare a report on the
performance of the Commission in conducting its proceedings and
meeting the deadlines established under subsection (a)(2)(E)
and the guidelines established under subsection (a)(2)(F).
``(2) Contents.--Each report required by paragraph (1) shall
contain detailed statistics on such performance, including,
with respect to each Bureau of the Commission--
``(A) with respect to each type of filing specified
in subsection (a)(2)(E) or (a)(2)(F)--
``(i) the number of filings that were pending
on the last day of the period covered by such
report;
``(ii) the number of filings described in
clause (i) for which each applicable deadline
or guideline established under such subsection
was not met and the average length of time such
filings have been pending; and
``(iii) for filings that were resolved during
such period, the average time between
initiation and resolution and the percentage
for which each applicable deadline or guideline
established under such subsection was met;
``(B) with respect to proceedings before an
administrative law judge--
``(i) the number of such proceedings
completed during such period; and
``(ii) the number of such proceedings pending
on the last day of such period; and
``(C) the number of independent studies or analyses
published by the Commission during such period.
``(3) Publication and submission.--The Commission shall
publish and submit to the Committee on Energy and Commerce of
the House of Representatives and the Committee on Commerce,
Science, and Transportation of the Senate each report required
by paragraph (1) not later than the date that is 30 days after
the last day of the period covered by such report.
``(n) Definitions.--In this section:
``(1) Amendment.--The term `amendment' includes, when used
with respect to an existing rule, the deletion of such rule.
``(2) Bipartisan majority.--The term `bipartisan majority'
means, when used with respect to a group of Commissioners, that
such group--
``(A) is a group of 3 or more Commissioners; and
``(B) includes, for each political party of which any
Commissioner is a member, at least 1 Commissioner who
is a member of such political party, and, if any
Commissioner has no political party affiliation, at
least one unaffiliated Commissioner.
``(3) Performance measure.--The term `performance measure'
means an objective and quantifiable outcome measure or output
measure (as such terms are defined in section 1115 of title 31,
United States Code).
``(4) Program activity.--The term `program activity' has the
meaning given such term in section 1115 of title 31, United
States Code, except that such term also includes any annual
collection or distribution or related series of collections or
distributions by the Commission of an amount that is greater
than or equal to $100,000,000.
``(5) Other definitions.--The terms `agency action', `ex
parte communication', and `rule' have the meanings given such
terms in section 551 of title 5, United States Code.''.
(b) Effective Dates and Implementing Rules.--
(1) Effective dates.--
(A) Nonpublic collaborative discussions.--Subsection
(c) of section 13 of the Communications Act of 1934, as
added by subsection (a), shall apply beginning on the
first date on which all of the procedural changes to
the rules of the Federal Communications Commission
required by subsection (a)(1) of such section have
taken effect.
(B) Publication of documents in advance of fcc
voting.--Subsection (d) of such section 13 shall apply
with respect to an order, decision, report, or action
the text of which is placed on circulation after the
date that is 90 days after the date of the enactment of
this Act.
(C) Timely availability of changes to rules of the
commission.--Subsection (e) of such section 13 shall
apply with respect to a provision, or an amendment to
or repeal of a provision, that is adopted after the
date that is 30 days after the date of the enactment of
this Act.
(D) Internet publication of certain fcc policies and
procedures.--Subsection (g) of such section 13 shall
apply beginning on the date that is 30 days after the
date of the enactment of this Act.
(E) Report release schedules.--Subsection (l) of such
section 13 shall apply with respect to 2016 and any
year thereafter.
(F) Annual scorecard reports.--Subsection (m) of such
section 13 shall apply with respect to 2015 and any
year thereafter.
(2) Rules.--Except as otherwise provided in such section 13,
the Federal Communications Commission shall promulgate any
rules necessary to carry out such section not later than 1 year
after the date of the enactment of this Act.
SEC. 3. CATEGORIZATION OF TCPA INQUIRIES AND COMPLAINTS IN QUARTERLY
REPORT.
In compiling its quarterly report with respect to informal consumer
inquiries and complaints, the Federal Communications Commission may not
categorize an inquiry or complaint with respect to section 227 of the
Communications Act of 1934 (47 U.S.C. 227) as being a wireline inquiry
or complaint or a wireless inquiry or complaint unless the party whose
conduct is the subject of the inquiry or complaint is a wireline
carrier or a wireless carrier, respectively.
SEC. 4. EFFECT ON OTHER LAWS.
Nothing in this Act or the amendments made by this Act shall relieve
the Federal Communications Commission from any obligations under title
5, United States Code, except where otherwise expressly provided.
SEC. 5. APPLICATION OF ANTIDEFICIENCY ACT TO UNIVERSAL SERVICE PROGRAM.
Section 302 of Public Law 108 494 (118 Stat. 3998) is amended by
striking ``December 31, 2016'' each place it appears and inserting
``December 31, 2020''.
SEC. 6. REPORT ON IMPROVING SMALL BUSINESS PARTICIPATION IN FCC
PROCEEDINGS.
Not later than 1 year after the date of the enactment of this Act,
the Federal Communications Commission, in consultation with the
Administrator of the Small Business Administration, shall submit to
Congress a report on--
(1) actions that the Commission will take to improve the
participation of small businesses in the proceedings of the
Commission; and
(2) recommendations for any legislation that the Commission
considers appropriate to improve such participation.
SEC. 7. IDENTIFICATION AND DESCRIPTION OF ITEMS TO BE DECIDED ON
AUTHORITY DELEGATED BY THE COMMISSION.
(a) In General.--Section 5(c) of the Communications Act of 1934 (47
U.S.C. 155(c)) is amended by adding at the end the following:
``(10) Not later than 48 hours before the time when an order,
decision, report, or action is made or taken pursuant to delegation
under paragraph (1), such order, decision, report, or action shall be
identified and briefly described on the Internet website of the
Commission, unless the authority to which the delegation is made for
good cause finds that such identification and description are likely to
lead to a result described in a paragraph of section 552b(c) of title
5, United States Code. Identification and description pursuant to this
paragraph shall not constitute `agency action' as defined in section
551 of title 5, United States Code. This paragraph shall not apply with
respect to an order, decision, report, or action that--
``(A) does not receive a delegated authority number pursuant
to the procedures of the Commission;
``(B) is made or taken on authority delegated to an
administrative law judge; or
``(C) is made or taken to address an immediate threat to
health or safety that constitutes an emergency requiring an
expedited response from the Commission.''.
(b) Effective Date.--The amendment made by this section shall apply
with respect to an order, decision, report, or action made or taken
after the date that is 90 days after the date of the enactment of this
Act.
Purpose and Summary
H.R. 2583, Federal Communications Process Reform Act of
2015 (FCC Process Reform Act) amends the Communications Act of
1934 to provide for greater transparency and efficiency in the
procedures followed by the Federal Communications Commission
(FCC, the Commission, or the Agency) and for other purposes.
Among other things, the legislation requires the Commission to
conduct a rulemaking and adopt procedural changes to its rules
to maximize opportunities for public participation and
efficient decision-making. The legislation also requires the
Commission to inject much-needed visibility into its decision-
making procedures.
The legislation also provides for a bipartisan majority of
Commissioners to meet in non-public collaborative discussions,
despite the Government in Sunshine Act, once the rulemaking has
been implemented.
Background and Need for Legislation
H.R. 2583 is the evolution of a bill that began in the
112th Congress, H.R. 3309, which ultimately passed the House of
Representatives by a recorded vote of 247-174.\1\ During the
113th Congress, as a result of discussion among the Members,
the Committee substantially revised the bill, resulting in a
bipartisan bill that passed the House of Representatives
unanimously.\2\ H.R. 2583, as introduced, is substantially
similar to H.R. 3675 from the 113th Congress, with changes in
effective dates. At the full Committee mark-up, the bill was
amended several times, resulting in the current version
discussed in this report.
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\1\158 Cong. Rec. H1609-H1629 (Federal Communications Commission
Process Reform Act of 2012 on March 27, 2012).
\2\159 Cong. Reg. H2280-H2284 (Federal Communications Commission
Process Reform Act of 2014 on March 11, 2014).
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This brief synopsis of the legislation's history
demonstrates the Committee's ongoing commitment to reforming
process at the Commission. This legislation is necessary to
remedy the numerous process failings at the FCC during the
tenures of both Republican and Democratic chairmen.\3\
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\3\See Section by Section analysis below for a more detailed
discussion of various process failures at the FCC.
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Over the past several years, this Committee, under
Republican and Democrat leadership, has expressed many concerns
that the FCC has fallen short in both transparency and
efficiency. In the 110th Congress, the Committee and its
Subcommittee on Oversight and Investigations investigated the
FCC's procedures, and the Committee ultimately released a
report documenting abuses at the agency.\4\ Senator
Rockefeller, then Chairman of the Senate Commerce Committee,
also instructed Chairman Genachowski during his nomination
hearing, ``Fix this agency, or we will fix it for you. Prove to
us that the FCC is not battered beyond repair.''\5\ In the
111th Congress, Rep. Barton introduced H.R. 2183, a bill to
improve public participation and overall decision-making at the
FCC. In the 112th Congress, Chairman Walden and Rep. Kinzinger
introduced H.R. 3309 to reform the FCC's procedures, and in the
113th, Chairman Walden, Rep. Kinzinger, and Ranking Member Anna
Eshoo together introduced H.R. 3675 to reform the FCC's
process. These bills were based on multiple Congressional
hearings and investigations, as well as multiple reports from
the Government Accountability Office, assessing the
transparency and fairness of FCC procedures.\6\
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\4\See House Committee on Energy and Commerce, Deception and
Distrust: The Federal Communications Commission under Chairman Kevin J.
Martin, 110th Cong. (2008).
\5\See Opening Statement of Chairman Jay Rockefeller, Nomination
Hearing, June 16, 2009 at http://www.commerce.senate.gov/public/
index.cfm?p=Hearings&ContentRecord_id=bca080f3-15a0-4d05-8abd-
77f5327a2cb7&Statement_id=ac4a336c-ed40-4f57-9600-
6d30f4c11c3f&ContentType_id=14f995b9-dfa5-407a-9d35-
56cc7152a7ed&Group_id=b06c39af-e033-4cba-9221-
de668ca1978a&MonthDisplay=6&YearDisplay=2009.
\6\See Government Accountability Office Report 10-249,
``Information Collection and Management at the Federal Communications
Commission,'' Mar. 2010 at http://www.gao.gov/products/GAO-10-249;
Government Accountability Office Report 10-79, ``FCC Management:
Improvements Needed in Communication, Decision-Making Processes, and
Workforce Planning,'' Jan. 2010 at http://www.gao.gov/products/GAO-10-
79; Government Accountability Office Report 08-125,``FCC Has Made Some
Progress in the Management of Its Enforcement Program but Faces
Limitations, and Additional Actions Are Needed,'' Mar. 2008 at http://
www.gao.gov/products/GAO-08-125; Government Accountability Office
Report 07-1046, ``FCC Should Take Steps to Ensure Equal Access to
Rulemaking Information,'' Sept. 2007 at http://www.gao.gov/products/
GAO-07-1046.
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Criticism of the FCC has come from off of the Hill as well.
In 2008, the National Association of Regulatory Utility
Commissioners wrote an open letter to President Obama's
transition team, highlighting the need for structural and
procedural reforms at the FCC and suggesting thirteen separate
reforms to consider.\7\ In 2009, then Professor Philip Weiser
wrote that ``the great weight of opinion is that the FCC has
always operated in a suboptimal fashion and is in dire need of
institutional reform.''\8\ And in a 2010 Public Knowledge
paper, that organization called for a ``shock to the system''
and ``a surrender of discretion by FCC leadership and a move
away from unpredictable and ad hoc decisionmaking.''\9\ The
paper details a number of reforms similar to those effected by
this bill, including additional transparency in editorial
privileges after a Commission vote or identification of items
delegated to bureaus for decision; self-imposed deadlines for
Commission action on petitions and other matters; increased
empowerment of Commission staff; and effective communication
with the public regarding its internal processes.\10\
---------------------------------------------------------------------------
\7\See Letter from Frederick Butler, President, NARUC, to Susan
Crawford, Visiting Professor, Yale Law School, Obama-Biden Transition
Team on the FCC (Dec. 12, 2008), available at http://www.naruc.org/
Testimony/08%201212%20RV%20FCC%20Transition%20letter.pdf.
\8\Philip J. Weiser, ``Institutional Design, FCC Reform, and the
Hidden Side of the Administrative State,'' 61 Admin. L. Rev. 675 (2009)
at 677.
\9\Michael Weinberg and Gigi B. Sohn, An FCC for the Internet Age:
Recommendations for Reforming the Federal Communications Commission
(Mar. 5, 2010), available at http://go.usa.gov/PyH.
\10\Id.
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The most telling criticism comes from within the agency
itself. In 2009, Commissioner Robert McDowell called twice for
financial and ethics audits of the agency, as well as a review
of the external communications from the agency.\11\ Chairman
Julius Genachowski billed regulatory reform a ``top priority''
of his Chairmanship\12\ and appointed a Special Counsel for FCC
Reform ``to ensure high-level attention to this vitally
important issue.''\13\ Chairman Tom Wheeler also appointed a
special counsel to review and institute procedural reforms\14\
and more recently convened yet another task force to assess the
decision-making procedures at the agency.\15\ Commissioners
Ajit Pai and Michael O'Rielly also have called for multiple
reforms to improve the transparency and process of the
agency.\16\
---------------------------------------------------------------------------
\11\See Letter from Commissioner Robert M. McDowell to Chairman
Julius Genachowski (Jul. 20, 2009) at https://apps.fcc.gov/
edocs_public/attachmatch/DOC-292122A1.pdf; Letter from Commissioner
Robert M. McDowell to Acting Chairman Michael J. Copps (Jan. 27, 2009)
at https://apps.fcc.gov/edocs_public/attachmatch/DOC-288104A1.pdf.
\12\Statement from FCC Chairman Julius Genachowski on the Executive
Order on Regulatory Reform and Independent Agencies (Jul. 11, 2011) at
https://apps.fcc.gov/edocs_public/attachmatch/DOC-308340A1.pdf.
\13\Letter from Chairman Julius Genachowski to Commissioner Robert
M. McDowell (Jul. 21, 2009) at https://apps.fcc.gov/edocs_public/
attachmatch/DOC-292121A1.pdf. Note that Mary Beth Richards was
appointed to serve as Special Counsel on FCC Reform not once but twice.
The first appointment came under Chairman Michael K. Powell. Press
Release, ``FCC Chairman Michael Powell Designates Special Counsel to
Spearhead Internal FCC Reform Efforts'' (Feb. 26, 2001) at https://
transition.fcc.gov/Speeches/Powell/Statements/2001/stmkp108.html.
\14\Press Release, ``FCC Chairman Tom Wheeler Announces Staff
Appointments'' (Nov. 4, 2013) at https://apps.fcc.gov/edocs_public/
attachmatch/DOC-323962A1.pdf.
\15\See Statement of Commissioner Michael O'Rielly on FCC Process
Reform Task Force (rel. Mar. 19, 2015) at https://apps.fcc.gov/
edocs_public/attachmatch/DOC-332610A1.pdf (in response to Chairman
Wheeler's announcement). The FCC has not released an official press
release on the task force, but Chairman Wheeler stated in the
Subcommittee's March 19, 2015 oversight hearing that ``I am going to be
asking each Commissioner to appoint one staff person to work on a task
force to be headed by Diane Cornell, who ran our process reform task
force.'' See Transcript of the Hearing of the Subcommittee on
Communications & Technology, entitled ``FCC Reauthorization: Oversight
of the Commission,'' p. 33 at http://docs.house.gov/meetings/IF/IF16/
20150319/103182/HHRG-114-IF16-20150319-SD003.pdf.
\16\See, e.g., Statement of Commission Ajit Pai on the Release of
Misleading Incentive Auction Data (May 20, 2015) at https://
apps.fcc.gov/edocs_public/attachmatch/DOC-333581A1.pdf; FCC Blog Post
by Commissioner Michael O'Rielly, ``Fixing Flawed and Non-Existent
`Editorial Privileges''' (Mar. 9, 2015) at https://www.fcc.gov/blog/
fixing-flawed-and-non-existent-editorial-privileges; FCC Blog Post by
Commissioner Michael O'Rielly, ``Delegated Authority: Serious
Objections and Solutions'' (Feb. 2, 2015) at https://www.fcc.gov/blog/
delegated-authority-serious-objections-and-solutions; FCC Blog Post by
Commissioner Michael O'Rielly, ``Update on Advance Posting of
Commission Meeting Items'' (Jan. 16, 2015) at https://www.fcc.gov/blog/
update-advance-posting-commission-meeting-items; Statement of FCC
Commissioner Ajit Pai on Calls for the FCC to Preempt State Laws
Governing Municipalities (Jan. 14, 2015) at https://www.fcc.gov/
document/statement-commissioner-pai-government-run-broadband; Joint
Statement of Commissioners Ajit Pai and Michael O'Rielly on the
Abandonment of Consensus-Based Decision-Making at the FCC (Dec. 18,
2014) at https://apps.fcc.gov/edocs_public/attachmatch/DOC-
331140A1.pdf.
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Internal efforts at reform have yielded some laudable
changes, but they have not been enough. The same issues raised
by then Chairman John Dingell in 1991 continue to plague the
agency today.\17\ The Committee believes that FCC process can
be improved only with legislative action.
---------------------------------------------------------------------------
\17\See Letter from John D. Dingell, Chairman, Committee on Energy
and Commerce, to the Honorable Alfred C. Sikes, Chairman, Federal
Communications Commission (May 21, 1991), quoted in FCC Process Reform:
Hearing before the Subcommittee on Communications and Technology, 112th
Cong., at 79-81 (May 13, 2011).
---------------------------------------------------------------------------
Hearings
The Energy and Commerce Committee has held a number of
hearings in recent Congresses. As noted above, H.R. 2583 was
preceded by similar bills in the 112th and 113th Congresses.
In the 113th Congress, the Subcommittee on Communications
and Technology held a hearing on December 12, 2013, shortly
after Chairman Wheeler was confirmed as Chairman of the agency.
Chairman Tom Wheeler, Commissioner Mignon Clyburn, Commissioner
Jessica Rosenworcel, Commissioner Ajit Pai, and Commissioner
Michael O'Rielly all provided testimony. The Subcommittee held
a second hearing, with Chairman Wheeler as the sole witness, on
May 20, 2014. On September 17, 2014, the Subcommittee also held
a third hearing focused on the Commission's process and budget
with testimony from the FCC's Managing Director, Jon Wilkins,
and the agency's Inspector General, David L. Hunt.
During the 113th Congress, the Subcommittee also held a
hearing on H.R. 3675, the predecessor bill to H.R. 2583. On
July 11, 2013, at a hearing entitled ``Improving FCC Process,''
the Subcommittee received testimony from Stuart M. Benjamin,
Douglas B. Maggs Chair in Law and Associate Dean for Research
at Duke Law; Larry Downes, Internet industry analyst and
author; Robert M. McDowell, Former FCC Commissioner and
Visiting Fellow at Hudson Institute; Randolph J. May, President
of Free State Foundation; Richard J. Pierce Jr., Lyle T.
Alverson Professor of Law at George Washington University Law
School; and James Bradford Ramsay, General Counsel of the
National Association of Regulatory Utility Commissioners.
The 114th Congress continued the efforts of the 113th in
oversight of the Commission. On March 4, 2015, the Subcommittee
reviewed the FCC's budget and considered reauthorization during
a hearing entitled, ``Reauthorization of the Federal
Communications Commission: The FCC's FY 2016 Budget Request.''
At the hearing, the Subcommittee heard testimony from Managing
Director Jon Wilkins. The Subcommittee held a hearing with
testimony from all five Commissioners on March 19, 2015,
entitled ``FCC Reauthorization: Oversight of the Commission.''
The Subcommittee considered a discussion draft of H.R. 2583
on April 30, 2015, at a hearing entitled ``FCC Reauthorization:
Improving Commission Transparency.'' The Subcommittee also
considered the discussion drafts of H.R. 2589, sponsored by
Rep. Ellmers, which required the FCC to publish on its Internet
website changes to the rules of the Commission not later than
24 hours after adoption; H.R. 2592, sponsored by Rep.
Kinzinger, which required the FCC to publish on the website of
the Commission documents to be voted on by the Commission; and
H.R. 2593, sponsored by Rep. Latta, which required
identification and description on the FCC website of items to
be decided on delegated authority. FCC Chairman Wheeler and
Commissioner O'Rielly testified.
On May 15, 2015, the Subcommittee held a hearing entitled
``FCC Reauthorization: Improving Commission Transparency, Part
II'' with testimony from Stuart M. Benjamin, Douglas B. Maggs
Chair in Law and Associate Dean for Research, Duke Law; Robert
M. McDowell, former FCC Commissioner, Senior Fellow, Hudson
Institute; and, Randolph J. May, President, Free State
Foundation. The Subcommittee considered several bills,
including offered discussion draft sponsored by Rep. Matsui,
which would require the FCC to submit to Congress a report on
improving the participation of small businesses in the
proceedings of the Commission; a discussion draft sponsored by
Rep. Clarke, which would require the FCC to publish a quarterly
report on pending requests for action and pending congressional
investigations of the agency; and a discussion draft sponsored
by Rep. Loebsack, which would require the FCC to publish its
internal rules and procedures on the agency's website.
Committee Consideration
On May 20, 2015, the Subcommittee on Communications and
Technology met in open markup session and forwarded a
discussion draft entitled ``Federal Communications Commission
Process Reform Act of 2015,'' without amendment, to the full
Committee by a voice vote.
Chairman Walden, together with Rep. Kinzinger, introduced
H.R. 2583 on May 29, 2015. H.R. 2853 was identical to the
discussion draft forwarded by the Subcommittee.
On June 2 and 3, 2015, the Committee on Energy and Commerce
met in open markup session and ordered H.R. 2583 reported to
the House, as amended, by a voice vote.
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the record votes
on the motion to report legislation and amendments thereto. A
motion by Mr. Upton to order H.R. 2583 reported to the House,
as amended, was agreed to by a voice vote. The following
reflects the record votes taken during the Committee
consideration:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Committee Oversight Findings
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee held hearings and made
findings that are reflected in this report.
Statement of General Performance Goals and Objectives
The goal and objective of H.R. 2583 is to provide for
greater transparency and efficiency in the decision-making
processes followed by the FCC. This legislation accomplishes
this by requiring the Commission to complete a rulemaking no
later than one year after the date of enactment, establishing
schedules and procedures for processing matters before the
Commission. The legislation also provides for a bipartisan
majority of Commissioners to meet in non-public collaborative
discussions despite the Government in Sunshine Act, once the
rulemaking has been completed.
New Budget Authority, Entitlement Authority, and Tax Expenditures
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee finds that H.R.
2583 would result in no new or increased budget authority,
entitlement authority, or tax expenditures or revenues.
Earmark, Limited Tax Benefits, and Limited Tariff Benefits
In compliance with clause 9(e), 9(f), and 9(g) of rule XXI
of the Rules of the House of Representatives, the Committee
finds that H.R. 2583 contains no earmarks, limited tax
benefits, or limited tariff benefits.
Committee Cost Estimate
The Committee adopts as its own the cost estimate prepared
by the Director of the Congressional Budget Office pursuant to
section 402 of the Congressional Budget Act of 1974.
Congressional Budget Office Estimate
Pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, the following is the cost estimate
provided by the Congressional Budget Office pursuant to section
402 of the Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 14, 2015.
Hon. Fred Upton, Chairman,
Committee on Energy and Commerce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2583, the Federal
Communications Commission Process Reform Act of 2015.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Susan Willie.
Sincerely,
Keith Hall.
Enclosure.
H.R. 2583--Federal Communications Commission Process Reform Act of 2015
Summary: H.R. 2583 would make a number of changes to
procedures that the Federal Communications Commission (FCC)
follows in its rulemaking processes. The bill also would
require the FCC to create a public database of information
about complaints made by consumers of telecommunications
services. Finally, the bill would exempt the Universal Service
Fund (USF) from provisions of the Antideficiency Act through
December 31, 2020.
CBO estimates that enacting H.R. 2583 would change the
timing of spending from the USF, which would affect direct
spending over the 2016-2025 period; therefore, pay-as-you-go
procedures apply. We estimate, however, that the timing changes
would net to zero over the ten-year period. Enacting H.R. 2583
would not affect revenues.
Further, CBO estimates that implementing H.R. 2583 to amend
the FCC's operating procedures would cost $10 million over the
next five years; such spending would be subject to the
availability of appropriated funds. Under current law, the FCC
is authorized to collect fees sufficient to offset the cost of
its regulatory activities each year. Therefore, CBO estimates
that the net cost to implement those provisions of H.R. 2583
would not be significant, assuming annual appropriation actions
consistent with the agency's authorities.
H.R. 2583 contains no intergovernmental mandates as defined
in the Unfunded Mandates Reform Act (UMRA) and would not affect
the budgets of state, local, or tribal governments.
If the FCC increases annual fee collections to offset the
costs of implementing its additional regulatory activities, the
bill would impose a private-sector mandate on some commercial
entities regulated by the FCC. Based on information from the
FCC, CBO estimates that the cost of the mandate would be small,
and fall well below the annual threshold established in UMRA
for private-sector mandates ($154 million in 2015, adjusted
annually for inflation).
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 2583 is shown in the following table.
The costs of this legislation falls within budget function 370
(commerce and housing credit).
--------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-------------------------------------------------------------------------------------------------
2016 2017 2018 2019 2020 2021 2022 2023 2024 2025 2016-2020 2016-2025
--------------------------------------------------------------------------------------------------------------------------------------------------------
CHANGES IN DIRECT SPENDINGa
Estimated Budget Authority............................ 0 0 0 0 0 0 0 0 0 0 0 0
Estimated Outlays..................................... 0 0 151 115 26 6 -158 -118 -22 0 292 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
aCBO estimates that implementing H.R. 2583 also would have an insignificant net effect on spending subject to appropriation.
Basis of estimate: For this estimate, CBO assumes that the
bill will be enacted near the beginning of fiscal year 2016.
Direct spending
H.R. 2583 would exempt the USF from provisions of the
Antideficiency Act through December 31, 2020. Created by the
Telecommunications Act of 1996, the USF redistributes income
from interstate telecommunications carriers to other carriers
that provide services to high-cost areas, low-income
households, schools, libraries, and nonprofit health care
providers in rural areas. The cash flows from the USF appear in
the budget as revenues (for fund collections) and direct
spending (for amounts distributed from the fund).
Under current law, the USF has a temporary exemption from
the Antideficiency Act that will expire at the end of calendar
year 2016. Spending for one of the fund's initiatives, the
Schools and Libraries program is affected by that exemption.
When the USF receives and approves an application for funding
from the Schools and Libraries program, it obligates funds to
be paid to the recipient pending compliance with certain grant
conditions. While the exemption is in place, the USF is able to
obligate funds for schools and libraries without having
sufficient amounts available to meet those obligations. Without
the exemption, the Schools and Libraries program would be
unable to obligate funds until sufficient resources to meet
those obligations became available. This program, which
distributes funds to eligible institutions to provide
affordable Internet and telecommunications services, spent $2.3
billion for those purposes in fiscal year 2014. By extending
the exemption through 2020, H.R. 2583 would continue to allow
the program to obligate and spend funds faster than it would
without the exemption.
CBO does not expect that the USF would collect or spend
more as a result of the exemption; rather, we estimate that the
timing of the spending would change. Specifically, CBO
estimates that under the exemption, spending patterns would
shift so that funds would be spent more quickly relative to the
current-law baseline estimates during the period the proposed
exemption would be in force. However, spending in the years
immediately after the expiration of the proposed exemption
would decrease, relative to the baseline, because of that
shift. Thus, CBO estimates that under the bill direct spending
would increase by $292 million over the 2016-2020 period; but
over the 2016-2025 period there would be no change in direct
spending.
Spending subject to appropriation
H.R. 2583 would require the FCC to adopt new rules related
to the agency's decision-making processes and to present
certain information in greater detail on the agency's website.
Based on information from the FCC, CBO estimates that
implementing those provisions would cost about $10 million over
the 2016-2020 period for additional administrative and
information technology costs. However, the FCC is authorized to
collect fees sufficient to offset its regulatory costs each
year; therefore, CBO estimates that the net cost to implement
H.R. 2583 would not be significant over the ten-year period,
assuming appropriation actions consistent with that authority.
Pay-As-You-Go considerations: The Statutory Pay-As-You-Go
Act of 2010 establishes budget-reporting and enforcement
procedures for legislation affecting direct spending or
revenues. The net changes in outlays that are subject to those
pay-as-you-go procedures are shown in the following table.
CBO ESTIMATE OF PAY-AS-YOU-GO EFFECTS FOR H.R. 2583, AS ORDERED REPORTED BY THE HOUSE COMMITTEE ON ENERGY AND COMMERCE ON JUNE 3, 2015
--------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
---------------------------------------------------------------------------------------------------
2016 2017 2018 2019 2020 2021 2022 2023 2024 2025 2016-2020 2016-2025
--------------------------------------------------------------------------------------------------------------------------------------------------------
CHANGES IN DIRECT SPENDING
Statutory Pay-As-You-Go Impact...................... 0 0 151 115 26 6 -158 -118 -22 0 292 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated impact on state, local, and tribal governments:
H.R. 2583 contains no intergovernmental mandates as defined in
UMRA and would not affect the budgets of state, local, or
tribal governments.
Estimated impact on the private sector: If the FCC
increases annual fee collections to offset the costs of
implementing its additional regulatory activities, the bill
would increase the cost of an existing mandate to pay those
fees by some commercial entities regulated by the agency. The
FCC is authorized to collect fees sufficient to offset its
regulatory costs each year, subject to its annual
appropriation. Based on information from the FCC, CBO estimates
that the cost of the mandate would be small--no more than about
$10 million over the next five years--and fall well below the
annual threshold established in UMRA for private-sector
mandates ($154 million in 2015, adjusted annually for
inflation).
Estimate prepared by: Federal costs: Susan Willie; Impact
on state, local, and tribal governments: Melissa Merrell;
Impact on the private sector: Marin Burnett.
Estimate approved by: H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
Duplication of Federal Programs
No provision of H.R. 2583 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee estimates that enacting H.R. 2583
specifically directs to be completed one rule making within the
meaning of 5 U.S.C. 551, as specified in Section 2(a).
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Section-by-Section Analysis of the Legislation
Section 1. Short title
Section 1 provides that the Act may be cited as the
``Federal Communications Commission Process Reform Act of
2015.''
Section 2. FCC process reform
Section 2(a). Section 2(a) inserts after section 12 of the
Communications Act of 1934 a new section, section 13,
Transparency and Efficiency.
Section 13(a) Initial rulemaking and inquiry
This subsection requires the FCC to conduct a notice and
comment rulemaking and adopt rules to (1) set minimum comment
and reply comment periods for rulemaking proceedings; (2)
establish policies concerning extensive comments toward the end
of a comment period; (3) establish policies to ensure that the
public has time to review material submitted in a proceeding
after the comment cycle has closed; (4) publish the status of
open rulemakings as well as list the draft items the
Commissioners are currently considering; (5) establish
deadlines for action on certain filings to the Commission and
its bureaus; (6) establish guidelines for the disposition of
petitions for declaratory ruling; (7) establish procedures for
including the specific text of proposed rules in Commission
Notice of Proposed Rule Makings (NPRM); and (8) to require the
development of performance measures for FCC program activities,
defined as each FCC program listed in the Federal budget or
each program through which the FCC collects or distributes $100
million or more.
New Section 13(a) is intended to ensure that the Commission
provides a more predictable framework for making decisions as
well as adequate opportunity for public participation. Too
often, the members of the public will file petitions for
declaratory ruling, rulemaking, or reconsideration of an FCC
decision only to find that their petitions languish at the
agency for an extended and often indeterminate length of
time.\18\ The Commission also has begun rulemakings and failed
to conclude them in a timely fashion or simply to close the
docket.\19\
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\18\See, e.g., in re Fifty-five Unopposed Petitions for
Determination of Effective Competition, Memorandum Opinion and Order,
29 FCC Rcd 3140 (2014) (closing out unopposed petitions for
determination of effective competition, some of which had been filed in
early December of 2011).
\19\See 2014 Quadrennial Regulatory Review--Review of the
Commission's Broadcast Ownership Rules and Other Rules Adopted Pursuant
to Section 202 of the Telecommunications Act of 1996, Further Notice of
Proposed Rulemaking and Report and Order, 29 FCC Rcd 4371 (2014). The
Commission did not complete the 2010 Quadrennial Review, as statutorily
required. Instead, it decided that it would incorporate the 2010 Review
into the 2014 Quadrennial Review without producing a separate report.
Similarly, the Commission failed to complete Video Competition Reports.
See also Special Access for Price Cap Exchange Carriers, WC Docket No.
05-25 (which has been fully briefed several times and also is based on
a petition for rulemaking, which was opened in 2002 and related to
special access rates).
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With specific regard to new section 13(a)(2)(A), the bill
requires the Commission to set minimum comment periods to set
expectations for the public on the timeframe for the impending
Commission actions. The Commission retains the flexibility to
depart from such comment periods for significant regulatory
actions as defined in Executive Order No. 12866 and
rulemakings. This is a practice supported by the Administrative
Conference of the United States (ACUS).\20\ The President also
issued guidance to executive agencies that sixty days should be
the minimum comment period to ``afford the public a meaningful
opportunity to comment.''\21\
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\20\See ACUS, improving the Environment for Agency Rulemaking,
Recommendation No. 93-4.
\21\See Executive Order No. 13563, 76 Fed. Reg. 3821 (Jan. 21,
2011).
---------------------------------------------------------------------------
Section 13(a)(2)(B) is intended to remedy a chronic problem
with the FCC's notice and comment procedures. Currently,
parties can wait until near the end of the comment period to
submit massive amounts of new evidence in the docket to support
their positions. The last-minute inclusion deprives other
stakeholders of the opportunity to adequately analyze the
submission and respond.\22\ Section 13(a)(2)(C) is intended to
remedy a similar situation, in which the agency submits
documents very late in the process and substantially relies on
those submissions to justify the regulation.\23\
---------------------------------------------------------------------------
\22\See, e.g., Comments of the National Association of Regulatory
Utility Commissioners, FCC GN Docket No. 14-25 (filed Mar. 31, 2014) at
13.
\23\This is not a theoretical concern. Just seven days before the
Commissioners were due to vote on the reform of the intercarrier
compensation and universal service regimes, the Wireline Competition
Bureau of the FCC inundated the record with thousands of pages of lists
of academic reports and published articles, studies, position papers,
analyses, statistics, newspaper articles, white papers, publications,
handbooks, State laws, State regulatory pleadings and decisions,
reference works, industry surveys, treatises, congressional reports,
and correspondence to the FCC. The National Association of Regulatory
Utility Commissioners (NARUC) urged the FCC to ``establish some sort of
a procedure . . . to assure this sort of thing does not happen again.''
See Comments of NARUC, GN Docket No. 14-25 (filed Mar. 31, 2014) at 14.
---------------------------------------------------------------------------
Section 13(a)(2)(D) was included in H.R. 3675 in the 113th
Congress and requires the FCC to report on the status of its
open proceedings and to provide the public with clear
information on the efficiency of the agency. During the full
Committee mark-up, the section was amended to include a
proposal offered by Rep. Clarke (D-NY), which would require the
Commission also to report on the status of requests for action
from the public as well as on the cost of Congressional
investigations. The analysis of the cost of Congressional
investigations will be subject to audit per section 13(a)(5).
Section 13(a) also requires the Commission to seek public
comment on a notice of inquiry into whether and how the
Commission should (1) allow a bipartisan majority of
Commissioners to add an item to the Commission's agenda; (2)
inform Commissioners of all options available on a given
Commission item; (3) ensure that Commissioners have adequate
time to review the text of Commission items; (4) publish the
text of items for Commission consideration prior to Commission
vote; (5) establish deadlines for the processing of
applications for licenses; (6) generate additional resources
for the processing of applications; and (7) publish Commission
decisions within thirty days of adoption.
Section 13(a)(2)(G) requires the Commission to establish
procedures for including the specific language of a proposed
rule in the notice of proposed rulemaking. In the past decade,
the Commission has fallen into the habit of delineating only a
general summary of potential action in Notices of Proposed
Rulemaking, without including the specific language of proposed
rules.\24\ The inclusion of the specific text of proposed rules
is ``a critical step in facilitating meaningful discussion.''
Without the text of the proposed rules,\25\ the public is left
``with the challenge of guessing what issues are really
important,'' which ``undermines the opportunity for meaningful
participation and effective deliberation.''\26\ The public
deserves a Commission that can commit to ``publishing the text
of proposed rules sufficiently in advance of Commission
meetings for both (i) the public to have a meaningful
opportunity to comment and (ii) the Commissioners to have a
meaningful opportunity to review such comments.''\27\
---------------------------------------------------------------------------
\24\See, e.g., Letter from Frederick Butler, President, NARUC, to
Susan Crawford, Visiting Professor, Yale Law School, Obama-Biden
Transition Team on the FCC (Dec. 12, 2008), available at http://
www.naruc.org/Testimony/08%201212%20RV%20FCC%20Transition%20letter.pdf.
(``The FCC frequently releases vague Notices of Proposed Rulemaking
that fail to articulate proposed rules and read more like Notices of
Inquiry by posing countless open-ended questions.'')
\25\Michael Weinberg and Gigi B. Sohn, An FCC for the Internet Age:
Recommendations for Reforming the Federal Communications Commission, at
4 (Mar. 5, 2010), available at http://go.usa.gov/PyH.
\26\Philip J. Weiser, FCC Reform and the Future of
Telecommunications Policy at 16-17 (Jan. 5, 2009), available at http://
fcc-reform.org/ paper/fcc-reform-and-future-telecommunications-policy.
\27\Letter from Rep. John D. Dingell, Chairman, Committee on Energy
and Commerce, to the Honorable Kevin J. Martin, Chairman, Federal
Communications Commission (Dec. 3, 2007).
---------------------------------------------------------------------------
Section 13(a)(2)(H) attempts to increase the transparency
of the Commission's largest programs, such as the Universal
Service Fund and the Interstate Telecommunications Relay
Service Fund. The Government Performance Results Act of 1993
already requires the FCC and other agencies to identify yearly
performance goals for all items on the Federal budget.\28\
Despite this requirement, the Government Accountability Office
has repeatedly cited the FCC for failing to establish
objective, quantifiable performance measures for the various
programs within the Universal Service Fund.\29\ To remedy this
situation, this subsection requires the Commission to develop
performance measures for its program activities, defined as
each program listed in the Federal budget, as well as each
program through which the Commission collects or distributes
$100 million or more, relying on data it already collects when
possible. To reduce the administrative burden, this subsection
does not require the FCC to adopt performance measures
immediately, but instead to adopt them as it moves forward with
reforms of the Universal Service Fund, the Interstate
Telecommunications Relay Service Fund, and its other program
activities. The Committee expects that the Commission will
include performance measures that address both the collection
and distribution of funds.
---------------------------------------------------------------------------
\28\See 5 U.S.C. Sec. 1115 et al.
\29\See, e.g., GAO Report No. 11-11, Improved Management Can
Enhance FCC Decision Making for the Universal Service Fund Low-Income
Program (Oct. 2010); GAO Report No. 09-253, Long-Term Strategic Vision
Would Help Ensure Targeting of E-Rate Funds to Highest-Priority Uses
(Mar. 2009); GAO Report No. 08-633, FCC Needs To Improve Performance
Management and Strengthen Oversight of the High-Cost Program (June
2008); GAO Report No. 05-151, Greater Involvement Needed by FCC in the
Management and Oversight of the E-Rate Program (Feb. 2005).
---------------------------------------------------------------------------
Given that the FCC already has 417 separate information
collections approved by the Office of Information and
Regulatory Affairs,\30\ the Committee does not expect the FCC
will need to create new information collections in order to
establish meaningful performance measures. If the FCC
determines otherwise, the Committee expects that the Commission
will first look to consolidate and reduce the burden of
existing collections before imposing new burdens.
---------------------------------------------------------------------------
\30\See OIRA, Inventory of Currently Approved Information
Collections, http://www.reginfo.gov/public/do/PRAMain (search for
``Federal Communications Commission''); see also GAO Report No. 10-249,
Information Collection and Management at the Federal Communications
Commission (Jan. 2010).
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Section 13(b) Periodic review
This subsection requires the FCC to conduct a rulemaking to
review the rules established in subsection 13(a) every five
years.
Section 13(c) Nonpublic collaborative discussions
This subsection allows a bipartisan majority of
Commissioners to meet for collaborative discussions if they
disclose such meetings within two business days and comply with
Office of General Counsel oversight. This subsection also
applies to meetings of Federal-State Joint Boards. The
testimonies of multiple administrative law experts recommend
the exception as a means of increasing the efficiency of
Commissioner negotiations for policymaking.\31\ However, the
Committee recognizes that this subsection creates an exception
to the Government in the Sunshine Act.\32\ As such, the
Committee does not grant this privilege lightly; the permission
to engage in non-public collaborations takes effect only when
the procedural safeguards required in the rulemaking as
directed in section 13(a)(1) have been implemented. See Section
1(b) of the bill. This section does not otherwise change the
applicability of the Government in Sunshine Act to the
Commission's Open Meetings.
---------------------------------------------------------------------------
\31\See, e.g., Testimony of Stuart Minor Benajamin, Douglas M.
Maggas Professor of Law, Duke Law School, before the Subcommittee on
Communications and Technology (May 15, 2015). See also Randolph J. May,
Reforming the Sunshine Act, 49 Ad. Law Rev. 415 (1997).
\32\Government in the Sunshine Act, Pub. L. 94-409, 90 Stat. 1241
(1976), codified at 5. U.S.C. Sec. 552b.
---------------------------------------------------------------------------
Section 13(d) Publication of documents in advance of FCC
voting
This subsection requires the FCC Chairman to make documents
to be voted on by the Commission available within twenty-four
hours of circulation to the Commissioners for vote. This
applies to both documents to be voted at Open Meetings and
documents to be voted on circulation. Under the current rules,
the Chairman is the sole arbiter of when information on a draft
order reaches the public.\33\ As such, stakeholders are
uncertain as to whether their concerns are addressed, how the
changed or new rules will modify their obligations, or whether
the Commission's actions will produce the results desired,
among other things. More problematically, those with special
access to members of the agency have greater knowledge of the
Commission's actions, which, as the Government Accountability
Office has found, gives those stakeholders an advantage in
lobbying the FCC.\34\ Moreover, other Commissioners are
prevented from fully discussing the issues in the document with
potentially impacted parties before a vote, because they are
prohibited from discovering the specifics of a proposal. This
does not promote informed policymaking.
---------------------------------------------------------------------------
\33\See 47 C.F.R. Sec. 19.735-203 (which begins ``Except as
authorized in writing by the Chairman pursuant to paragraph (b) of this
section, or otherwise as authorized by the Commission or its rules,
nonpublic information shall not be disclosed, directly or indirectly,
to any person outside the Commission.'').
\34\See Government Accountability Office Report 07-1046, ``FCC
Should Take Steps to Ensure Equal Access to Rulemaking Information''
(Sept. 2007).
---------------------------------------------------------------------------
This subsection establishes a practice of publishing the
documents to be voted on by the Commission before an actual
vote, allowing access to the public. This also is a practice
endorsed by ACUS.\35\ Other Federal agencies already practice
this type of transparency either by providing the proposed text
of rules from the outset of the comment period or releasing the
final text of the rules before the final decision.\36\
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\35\See ACUS Recommendation 2014-2 available at https://
www.acus.gov/recommendation/government-sunshine-act.
\36\FERC, which operates at an almost identical size, composition,
budget, and statutory basis as the FCC, releases orders the day of the
vote. The FTC releases the actual text of rules before proceeding to a
final decision, pursuant to Federal Trade Commission Act, 15 USC
Section 57 a(b)(1)(A).
---------------------------------------------------------------------------
Critics have argued that this subsection would hamper the
deliberative process at the FCC. This subsection explicitly
recognizes in subparagraph (2) that the draft to be published
is a document, subject to revision; the only requirement is
that the document reflects the intent of the Commission at the
time of circulation. It is important to note that the Committee
expects the Chairman to publish a bona fide representation of
the decision at the time and not to post an ersatz proposal to
be completely replaced at a later date.\37\
---------------------------------------------------------------------------
\37\See Commissioner Michael O'Rielly, ``FCC's Pre-Adoption Process
Also Needs Work,'' FCC Blog, Apr. 1, 2015 at http://www.fcc.gov/blog/
fcc-s-pre-adoption-process-also-needs-work. Commissioner O'Rielly sums
up the issue by stating, ``It is patently unfair to expect
Commissioners to promptly read and provide feedback on an item when
staff is working on a substantially different document to be provided
later--sometimes not until late the night before a vote.''
---------------------------------------------------------------------------
This subsection, however, does allow the Commission to
withhold certain information in keeping with the exceptions
permitted in the Government in Sunshine Act. Failure to post
other documents within the twenty-four-hour window, however,
would result in a twenty-one-day delay--the standard
circulation period for an item to be considered at an open
meeting of the Commission--before the document may be voted on,
so that the FCC may remedy its error and provide the document
for publication.
Critics also have argued that posting a draft decision
before the vote could lead to a fresh round of comments from
stakeholders, forcing the Commission to delay its vote until
the comments are incorporated. The Committee notes that current
practice at the Commission permits lobbying during circulation
of a document, less the sunshine period for open meeting items.
There is a significant body of caselaw addressing the issue of
the public's right to comment\38\ and the doctrine of ripeness,
which governs the availability of judicial review.\39\
Moreover, should comments arise that require significant
response, the Commission should delay resolution of the item
until a meaningful review of any new issues has been completed.
Nonetheless, to foreclose any questions of whether the posted
draft should be considered actionable, this subsection includes
subparagraph (4), which clearly states that the publication of
the draft itself does not constitute final agency action,
available for judicial review.
---------------------------------------------------------------------------
\38\See, e.g., Sprint Corp. v. FCC, 331 F.3d 952 (D.C. Cir. 2003)
(stating that Commission need not address every possible comment but
need only ``respond in a reasoned manner to those [comments] that raise
significant problems'').
\39\See, e.g., Bennett v. Spear, 520 US 154 (1997).
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Section 13(e) Timely availability of changes to rules of
the Commission
This subsection requires the Commission to post the text of
its rules (i.e., the actual modifications to the Code of
Federal Regulations) on its Internet website within 24 hours of
adoption.
Once the Commissioners have voted to adopt an item, the
document often remains unreleased to the public, preventing the
public from fully understanding the Commission's action. Part
of the reason for this delay is the routine practice of
granting the Commission staff ``editorial privileges,'' which
range from proofreading and cleaning up the document, to making
changes to the text of the item to address arguments raised by
dissenting Commissioners.\40\ However, a significant lag
between the vote and the publication of the voted item could
indicate substantive changes buried in the ``editorial
privileges'' process. In fact, the FCC has maintained the
confidentiality of the as-voted document as exempt from
disclosure under FOIA's ``deliberative process privilege,''
despite the fact that the vote had occurred already and
deliberation had ended.\41\ Substantive post-decision revisions
could undermine the legitimacy of the Commission's decision and
the integrity of the rulemaking. This subsection would require
the Commission to promulgate the text of the rules, which
should not require further editing, if these rules were the
basis for the Commissioners' votes.
---------------------------------------------------------------------------
\40\The concept of ``editorial privileges'' is itself controversial
as there does not appear to be any support for the practice in the laws
governing the Commission's process. See e.g. Commissioner Michael
O'Rielly, ``Fixing Flawed and Non-Existent `Editorial Privileges,'''
FCC Blog, Mar. 9, 2015 at http://www.fcc.gov/blog/fixing-flawed-and-
non-existent-editorial-privileges.
\41\Associated Press, ``Voted Items at FCC may be Secret till
Final, Agency Says,'' Jun. 19, 2008 available at http://
www.firstamendmentcenter.org/voted-items-at-fcc-may-be-secret-till-
final-agency-says.
---------------------------------------------------------------------------
Section 13(f) Access to certain information on the
Commission's website.
This subsection requires the FCC to provide links on the
Commission's home page to the current budget, appropriations,
number of full-time equivalent employees, and the Commission's
performance plan. This practice is followed by most other
administrative agencies, and availability of this information
would provide valuable insight into the operations of the
Commission.
While this subsection requires only that the Commission
publish information for the current fiscal year, the Committee
hopes the Commission will provide such information on a
historical basis, as is common practice at other agencies. The
cost and operation of the Commission is a matter of public
record, and the Committee does not believe it will constitute a
burden to require the agency to make such historical
information easily accessible to the public.
Section 13(g) Internet publication of certain FCC policies
and procedures.
This subsection is based on a draft bill proposed by Rep.
Loebsack and requires the FCC to publish policies and
procedures that govern the Commission's decisionmaking process.
The Chairman of the Commission is considered the ``CEO'' of the
Commission and may dictate procedures for carrying out
Commission business.\42\ As a result, the Chairman manages the
staff of the entire agency (other than those in the offices of
the other Commissioners), including the General Counsel and the
Inspector General, determines which policy matters will be
considered and when they will be considered, and controls the
availability of information to the public and to other
Commissioners.
---------------------------------------------------------------------------
\42\See 47 U.S.C. Sec. 155(a) (stating ``The member of the
Commission designed by the President as chairman shall be the chief
executive officer of the Commission'').
---------------------------------------------------------------------------
It does not appear that the FCC maintains standard
operating manuals for basic Commission decision-making
functions, such as procedures for providing information to the
offices of other Commissioners for agenda items, as recommended
by the GAO.\43\ Limited information on agency procedures
impedes the public's ability to determine whether the agency is
functioning effectively. Other independent agencies have posted
these materials on their websites and make them available to
the public.\44\
---------------------------------------------------------------------------
\43\See GAO Report 10-79, ``FCC Management: Improvements Needed in
Communications, Decision-Making Processes, and Workforce Planning''
(December 2009) at 2.
\44\See, e.g., NRC Procedures http://www.nrc.gov/about-nrc/policy-
making/internal.html; FTC Procedures https://www.ftc.gov/about-ftc/
foia/foia-resources/ftc-administrative-staff-manuals.
---------------------------------------------------------------------------
Section 13(h) Federal Register publication.
This subsection requires the FCC to publish the documents
specified in the Federal Register no later than forty-five days
after release of the document or the day specified under any
other provision of law.
Section 13(i) Consumer complaint database.
This subsection requires the FCC to put consumer complaint
information in a publicly available, searchable database on its
website.
Section 13(j) Form of publication.
This subsection requires the FCC to publish documents
specified in this section on its website.
Section 13(k) Transparency relating to performance in
meeting FOIA requirements.
This subsection requires the FCC to take additional steps
to inform the public about its performance in meeting the
disclosure requirements of the Freedom of Information Act.
Section 13(l) Prompt release of statistical reports and
reports to Congress.
This subsection requires the FCC to establish a schedule
for the release of its required reports.
Section 13(m) Annual scorecard.
This subsection requires the FCC to report annually
regarding its performance in meeting the deadlines and
guidelines established in subsection (a), as well as how the
Commission has used administrative law judges and independent
studies.
Section 13(n) Definitions
This subsection defines several terms used in the Act,
including ``performance measure'' and ``program activity.''
Section 2(b). Section 2(b) sets the effective dates for the
changes required in section 2(a). It also sets the schedule of
the reports to be submitted under new section 13.
Specifically, Commission is required to complete its
rulemaking on new section 13 no later than one year after the
date of enactment and delays the implementation of the non-
public collaborative discussion provisions until all rules
required by section 13 have taken effect.
The implementation of subsection 13(d) on publishing FCC
documents in advance of voting must be completed no later than
ninety days after the date of enactment.
The implementation of subsection 13(e) on the timely
availability of the newly voted rules must be completed no
later than thirty days after the date of enactment.
The implementation of subsection 13(g) on the availability
of Commission decisionmaking procedures must be completed no
later than 30 days after the date of enactment.
Section 3. Categorization of TCPA inquiries and complaints in quarterly
report
Section 3 prohibits the FCC from categorizing inquiries or
complaints under the Telephone Consumer Protection Act as
wireline or wireless inquiries or complaints unless the
complaint or inquiry originated from the conduct of a wireline
or wireless carrier.
Section 4. Effect on other laws
Section 4 specifies that the Act does not alter the general
framework established by the Administrative Procedures Act and
related laws, except where it does so explicitly (i.e.,
allowing deliberative collaboration among Commissioners and on
the Federal-State Joint Boards).
Section 5. Application of Antideficiency Act to Universal Service
Program
Section 5 creates a waiver of the Antideficiency Act for
the Federal Universal Service Fund through December 31, 2020.
The Universal Service Fund has been subject to a series of
temporary waivers since 2004.
Section 6. Report on improving Small Business participation in FCC
proceedings.
Section 6 requires the Commission to consult with the Small
Business Administration (SBA) to produce a report recommending
actions and legislation that would improve the participation of
small businesses in Commission proceedings. This section was
based on a draft bill proposed by Rep. Matsui to remedy
concerns that the small business community has not been able to
engage in proceedings at the Commission. As the Commission
considers how it may engage small businesses, it must carefully
consider the definition of ``small business.'' Since Congress
has designated the SBA as the expert entity on small
businesses, the Committee strongly recommends that the
Commission defer to the SBA's existing size standard
definition.
Section 7. Identification and description of items to be decided on
authority delegated by the Commission
Section 7 requires the Commission to describe and list
items to be adopted on delegated authority on its website
forty-eight hours before the action becomes effective. This
change must be made no later than ninety days after the date of
enactment.
Not all work at the FCC is done at the Commission level. By
statute, the Commission is permitted to delegate certain
routine matters to staff in order to ensure that the FCC runs
smoothly and stakeholder needs are met in a timely fashion.\45\
The FCC's rules, however, prohibit staff from resolving new or
novel questions of law or policy that cannot be resolved under
outstanding Commission precedents or guidelines.\46\ That
responsibility falls to the Commission, which is tasked with
interpreting policy under the statute. Without safeguards,
however, there is the danger that items on delegated authority
may address new and novel questions of law or policy.\47\
---------------------------------------------------------------------------
\45\47 U.S.C. Sec. 155(c)(1).
\46\See 47 C.F.R. Part 0, Subpart B.
\47\In March 2014, the Media Bureau, using delegated authority,
changed longstanding FCC policy with regard to the approval of
broadcast television transactions involving sharing agreements. This
policy change was neither routine nor non-controversial. Yet, this
change in Commission policy was not debated among the Commissioners,
and it was not subject to a vote of any kind. Rather, it was announced
by the Chief of the Media Bureau in a Public Notice. See FCC Public
Notice, ``Process of Broadcast Television Applications Proposing
Sharing Arrangements and Contingent Interests,'' DA 14-330 (rel. Mar.
12, 2014); In July 2014, a Public Notice related to the then upcoming
AWS-3 auction was placed on circulation, beginning the process by which
Commissioners and their staffs may request edits and ultimately vote on
the item. However, subsequent action by the Chairman's office removed
the item from circulation and directed the Wireless Telecommunications
Bureau to issue the Public Notice on delegated authority--depriving the
public of essential process and the members of the Commission an
opportunity to vote on the matter. According to the media reports, one
of the Commissioners sought information related to the substance of the
Public Notice and was told he would be briefed after the item was
adopted. See FCC Press Release, Statement of Commissioner Ajit Pai on
the Pulling of the AWS-3 Coordination Item From Commission
Consideration, Jul. 18, 2014, at https://apps.fcc.gov/edocs_public/
attachmatch/DOC-328339A1.pdf. Other instances have been documented in a
variety of trade press.
---------------------------------------------------------------------------
It is unwritten policy at the FCC to provide Commissioners
with some notice--varying from forty-eight hours to no time at
all-when an action is decided at the Bureau or Office level on
delegated authority.\48\ This bill seeks to codify a good
policy already loosely in practice at the Commission to prevent
abuse of the delegated authority.
---------------------------------------------------------------------------
\48\See Commissioner Michael O'Rielly, ``Delegated Authority:
Serious Objections and Solutions,'' FCC Blog, Feb. 2, 2015 at http://
www.fcc.gov/blog/delegated-authority-serious-objections-and-solutions.
---------------------------------------------------------------------------
Critics have argued that requiring advance notice of items
to be issued on delegated authority would slow the Commission's
operations to a crawl. Chairman Wheeler testified that over
950,000 items were decided on delegated authority in 2014.\49\
However, Bureau Chiefs at the Commission may adopt certain
delegated items and assign a ``DA'' number, if the Bureau Chief
considers that the decision may have precedential value in the
future and may resolve an ``issue of broad public
attention.''\50\ Of the 950,000 items, only 1,845 items
received a DA number in 2014.\51\ In order to avoid slowing the
agency's most routine operations, the subsection requires only
that those items receiving a DA number be listed and described
forty-eight hours before adoption. Accordingly, the Committee
hopes to ensure that the Commission's use of delegated
authority remains above reproach.
---------------------------------------------------------------------------
\49\See Testimony of FCC Chairman Tom Wheeler, before the
Subcommittee on Communications and Technology (Apr. 30, 2015).
\50\See John Eggerton, ``CC Source: Both Walden, Eshoo DA Figures
Are Correct,'' Broadcasting&Cable (May 20, 2015) at http://
www.broadcastingcable.com/news/washington/fcc-source-both-walden-eshoo-
da-figures-are-correct/141061.
\51\The 1,845 figure was submitted by the Commission in response to
a letter sent to the FCC Chairman from Full Committee Chairman Fred
Upton, Subcommittee Chairman Tim Murphy, and Subcommittee Chairman Greg
Walden on February 15, 2015.
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Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
COMMUNICATIONS ACT OF 1934
TITLE I--GENERAL PROVISIONS
* * * * * * *
SEC. 5. ORGANIZATION AND FUNCTIONING OF THE COMMISSION.
(a) The member of the Commission designated by the President
as chairman shall be the chief executive officer of the
Commission. It shall be his duty to preside at all meetings and
sessions of the Commission, to represent the Commission in all
matters relating to legislation and legislative reports, except
that any commissioner may present his own or minority views or
supplemental reports, to represent the Commission in all
matters requiring conferences or communications with other
governmental officers, departments or agencies, and generally
to coordinate and organize the work of the Commission in such
manner as to promote prompt and efficient disposition of all
matters within the jurisdiction of the Commission. In the case
of a vacancy in the office of the chairman of the Commission,
or the absence or inability of the chairman to serve, the
Commission may temporarily designate one of its members to act
as chairman until the cause or circumstance requiring such
designation shall have been eliminated or corrected.
(b) From time to time as the Commission may find necessary,
the Commission shall organize its staff into (1) integrated
bureaus, to function on the basis of the Commission's principal
workload operations, and (2) such other divisional
organizations as the Commission may deem necessary. Each such
integrated bureau shall include such legal, engineering,
accounting, administrative, clerical, and other personnel as
the Commission may determine to be necessary to perform its
functions.
(c)(1) When necessary to the proper functioning of the
Commission and the prompt and orderly conduct of its business,
the Commission may, by published rule or by order, delegate any
of its functions (except functions granted to the Commission by
this paragraph and by paragraphs (4), (5), and (6) of this
subsection and except any action referred to in sections
204(a)(2), 208(b), and 405(b)) to a panel of commissioners, an
individual commissioner, an employee board, or an individual
employee, including functions with respect to hearing,
determining, ordering, certifying, reporting, or otherwise
acting as to any work, business, or matter; except that in
delegating review functions to employees in cases of
adjudication (as defined in the Administrative Procedure Act),
the delegation in any such case may be made only to an employee
board consisting of two or more employees referred to in
paragraph (8). Any such rule or order may be adopted, amended,
or rescinded only by a vote of a majority of the members of the
Commission then holding office. Except for cases involving the
authorization of service in the instructional television fixed
service, or as otherwise provided in this Act, nothing in this
paragraph shall authorize the Commission to provide for the
conduct, by any person or persons other than persons referred
to in paragraph (2) or (3) of section 556(b) of title 5, United
States Code, of any hearing to which such section applies.
(2) As used in this subsection (d) the term ``order,
decision, report, or action'' does not include an initial,
tentative, or recommended decision to which exceptions may be
filed as provided in section 409(b).
(3) Any order, decision, report, or action made or taken
pursuant to any such delegation, unless reviewed as provided in
paragraph (4), shall have the same force and effect, and shall
be made, evidenced, and enforced in the same manner, as orders,
decisions, reports, or other actions of the Commission.
(4) Any person aggrieved by any such order, decision, report
or action may file an application for review by the Commission
within such time and in such manner as the Commission shall
prescribe, and every such application shall be passed upon by
the Commission. The Commission, on its own initiative, may
review in whole or in part, at such time and in such manner as
it shall determine, any order, decision, report, or action made
or taken pursuant to any delegation under paragraph (1).
(5) In passing upon applications for review, the Commission
may grant, in whole or in part, or deny such applications
without specifying any reasons therefore. No such application
for review shall rely on questions of fact or law upon which
the panel of commissioners, individual commissioner, employee
board, or individual employee has been afforded no opportunity
to pass.
(6) If the Commission grants the application for review, it
may affirm, modify, or set aside the order, decision, report,
or action, or it may order a rehearing upon such order,
decision, report, or action in accordance with section 405.
(7) The filing of an application for review under this
subsection shall be a condition precedent to judicial review of
any order, decision, report, or action made or taken pursuant
to a delegation under paragraph (1). The time within which a
petition for review must be filed in a proceeding to which
section 402(a) applies, or within which an appeal must be taken
under section 402(b), shall be computed from the date upon
which public notice is given of orders disposing of all
applications for review filed in any case.
(8) The employees to whom the Commission may delegate review
functions in any case of adjudication (as defined in the
Administrative Procedure Act) shall be qualified, by reason of
their training, experience, and competence, to perform such
review functions, and shall perform no duties inconsistent with
such review functions. Such employees shall be in a grade
classification or salary level commensurate with their
important duties, and in no event less than the grade
classification or salary level of the employee or employees
whose actions are to be reviewed. In the performance of such
review functions such employees shall be assigned to cases in
rotation so far as practicable and shall not be responsible to
or subject to the supervision or direction of any officer,
employee, or agent engaged in the performance of investigative
or prosecuting functions for any agency.
(9) The secretary and seal of the Commission shall be the
secretary and seal of each panel of the Commission, each
individual commissioner, and each employee board or individual
employee exercising functions delegated pursuant to paragraph
(1) of this subsection.
(10) Not later than 48 hours before the time when an order,
decision, report, or action is made or taken pursuant to
delegation under paragraph (1), such order, decision, report,
or action shall be identified and briefly described on the
Internet website of the Commission, unless the authority to
which the delegation is made for good cause finds that such
identification and description are likely to lead to a result
described in a paragraph of section 552b(c) of title 5, United
States Code. Identification and description pursuant to this
paragraph shall not constitute ``agency action'' as defined in
section 551 of title 5, United States Code. This paragraph
shall not apply with respect to an order, decision, report, or
action that--
(A) does not receive a delegated authority number
pursuant to the procedures of the Commission;
(B) is made or taken on authority delegated to an
administrative law judge; or
(C) is made or taken to address an immediate threat
to health or safety that constitutes an emergency
requiring an expedited response from the Commission.
(d) Meetings of the Commission shall be held at regular
intervals, not less frequently than once each calendar month,
at which times the functioning of the Commission and the
handling of its work load shall be reviewed and such orders
shall be entered and other action taken as may be necessary or
appropriate to expedite the prompt and orderly conduct of the
business of the Commission with the objective of rendering a
final decision (1) within three months from the date of filing
in all original application, renewal, and transfer cases in
which it will not be necessary to hold a hearing, and (2)
within six months from the final date of the hearing in all
hearing cases.
(e) The Commission shall have a Managing Director who shall
be appointed by the Chairman subject to the approval of the
Commission. The Managing Director, under the supervision and
direction of the Chairman, shall perform such administrative
and executive functions as the Chairman shall delegate. The
Managing Director shall be paid at a rate equal to the rate
then payable for level V of the Executive Schedule.
* * * * * * *
SEC. 13. TRANSPARENCY AND EFFICIENCY.
(a) Initial Rulemaking and Inquiry.--
(1) Rulemaking.--Not later than 1 year after the date
of the enactment of the Federal Communications
Commission Process Reform Act of 2015, the Commission
shall complete a rulemaking proceeding and adopt
procedural changes to its rules to maximize
opportunities for public participation and efficient
decisionmaking.
(2) Requirements for rulemaking.--The rules adopted
under paragraph (1) shall--
(A) set minimum comment periods for comment
and reply comment, subject to a determination
by the Commission that good cause exists for
departing from such minimum comment periods,
for--
(i) significant regulatory actions,
as defined in Executive Order No.
12866; and
(ii) all other rulemaking
proceedings;
(B) establish policies concerning the
submission of extensive new comments, data, or
reports towards the end of the comment period;
(C) establish policies regarding treatment of
comments, ex parte communications, and data or
reports (including statistical reports and
reports to Congress) submitted after the
comment period to ensure that the public has
adequate notice of and opportunity to respond
to such submissions before the Commission
relies on such submissions in any order,
decision, report, or action;
(D) establish procedures for, not later than
14 days after the end of each quarter of a
calendar year (or more frequently, as the
Commission considers appropriate), publishing
on the Internet website of the Commission and
submitting to Congress a report that contains--
(i) the status of open rulemaking
proceedings and proposed orders,
decisions, reports, or actions on
circulation for review by the
Commissioners, including which
Commissioners have not cast a vote on
an order, decision, report, or action
that has been on circulation for more
than 60 days;
(ii) for the petitions, applications,
complaints, and other requests for
action by the Commission that were
pending at the Commission on the last
day of such quarter (or more frequent
period, as the case may be)--
(I) the number of such
requests, broken down by the
bureau primarily responsible
for action and, for each
bureau, the type of request
(such as a petition,
application, or complaint); and
(II) information regarding
the amount of time for which
such requests have been
pending, broken down as
described in subclause (I); and
(iii) a list of the congressional
investigations of the Commission that
were pending on the last day of such
quarter (or more frequent period, as
the case may be) and the cost of such
investigations, individually and in the
aggregate;
(E) establish deadlines (relative to the date
of filing) for--
(i) in the case of a petition for a
declaratory ruling under section 1.2 of
title 47, Code of Federal Regulations,
issuing a public notice of such
petition;
(ii) in the case of a petition for
rulemaking under section 1.401 of such
title, issuing a public notice of such
petition; and
(iii) in the case of a petition for
reconsideration under section 1.106 or
1.429 of such title or an application
for review under section 1.115 of such
title, issuing a public notice of a
decision on the petition or application
by the Commission or under delegated
authority (as the case may be);
(F) establish guidelines (relative to the
date of filing) for the disposition of
petitions filed under section 1.2 of such
title;
(G) establish procedures for the inclusion of
the specific language of the proposed rule or
the proposed amendment of an existing rule in a
notice of proposed rulemaking; and
(H) require notices of proposed rulemaking
and orders adopting a rule or amending an
existing rule that--
(i) create (or propose to create) a
program activity to contain performance
measures for evaluating the
effectiveness of the program activity;
and
(ii) substantially change (or propose
to substantially change) a program
activity to contain--
(I) performance measures for
evaluating the effectiveness of
the program activity as changed
(or proposed to be changed); or
(II) a finding that existing
performance measures will
effectively evaluate the
program activity as changed (or
proposed to be changed).
(3) Inquiry.--Not later than 1 year after the date of
the enactment of the Federal Communications Commission
Process Reform Act of 2015, the Commission shall
complete an inquiry to seek public comment on whether
and how the Commission should--
(A) establish procedures for allowing a
bipartisan majority of Commissioners to place
an order, decision, report, or action on the
agenda of an open meeting;
(B) establish procedures for informing all
Commissioners of a reasonable number of options
available to the Commission for resolving a
petition, complaint, application, rulemaking,
or other proceeding;
(C) establish procedures for ensuring that
all Commissioners have adequate time, prior to
being required to decide a petition, complaint,
application, rulemaking, or other proceeding
(including at a meeting held pursuant to
section 5(d)), to review the proposed
Commission decision document, including the
specific language of any proposed rule or any
proposed amendment of an existing rule;
(D) establish deadlines (relative to the date
of filing) for disposition of applications for
a license under section 1.913 of title 47, Code
of Federal Regulations;
(E) assign resources needed in order to meet
the deadlines described in subparagraph (D),
including whether the Commission's ability to
meet such deadlines would be enhanced by
assessing a fee from applicants for such a
license; and
(F) publish each order, decision, report, or
action not later than 30 days after the date of
the adoption of such order, decision, report,
or action.
(4) Data for performance measures.--The Commission
shall develop a performance measure or proposed
performance measure required by this subsection to
rely, where possible, on data already collected by the
Commission.
(5) GAO audit.--Not less frequently than every 6
months, the Comptroller General of the United States
shall audit the cost estimates provided by the
Commission under paragraph (2)(D)(iii) during the
preceding 6-month period.
(b) Periodic Review.--On the date that is 5 years after the
completion of the rulemaking proceeding under subsection
(a)(1), and every 5 years thereafter, the Commission shall
initiate a new rulemaking proceeding to continue to consider
such procedural changes to its rules as may be in the public
interest to maximize opportunities for public participation and
efficient decisionmaking.
(c) Nonpublic Collaborative Discussions.--
(1) In general.--Notwithstanding section 552b of
title 5, United States Code, a bipartisan majority of
Commissioners may hold a meeting that is closed to the
public to discuss official business if--
(A) a vote or any other agency action is not
taken at such meeting;
(B) each person present at such meeting is a
Commissioner, an employee of the Commission, a
member of a joint board or conference
established under section 410, or a person on
the staff of such a joint board or conference
or of a member of such a joint board or
conference; and
(C) an attorney from the Office of General
Counsel of the Commission is present at such
meeting.
(2) Disclosure of nonpublic collaborative
discussions.--Not later than 2 business days after the
conclusion of a meeting held under paragraph (1), the
Commission shall publish a disclosure of such meeting,
including--
(A) a list of the persons who attended such
meeting; and
(B) a summary of the matters discussed at
such meeting, except for such matters as the
Commission determines may be withheld under
section 552b(c) of title 5, United States Code.
(3) Preservation of open meetings requirements for
agency action.--Nothing in this subsection shall limit
the applicability of section 552b of title 5, United
States Code, with respect to a meeting of Commissioners
other than that described in paragraph (1).
(d) Publication of Documents in Advance of FCC Voting.--
(1) In general.--The Commission may not adopt any
order, decision, report, or action by vote of the
Commission, unless the Chairman causes the Commission
to publish on the Internet website of the Commission
the text of such order, decision, report, or action--
(A) not later than 24 hours after the time
such text is placed on circulation for review
by the Commissioners; or
(B) not later than 21 days before the date on
which the vote is to occur.
(2) Text to be published; effect.--The text published
pursuant to paragraph (1) shall be the text intended at
the time of the publishing to be subject to a vote.
Nothing in this subsection may be construed to prevent
the Commission from making changes to the text after
the publishing.
(3) Exception.--This subsection shall not apply to a
portion of any order, decision, report, or action if
the publishing of such portion is likely to lead to a
result described in a paragraph of section 552b(c) of
title 5, United States Code.
(4) Not agency action.--Publication pursuant to this
subsection shall not constitute ``agency action'' as
defined in section 551 of title 5, United States Code.
(e) Timely Availability of Changes to Rules of the
Commission.--Not later than 24 hours after adopting a provision
that will appear in the Code of Federal Regulations, or an
amendment to or repeal of a provision that appears in the Code
of Federal Regulations, the Commission shall publish on the
Internet website of the Commission the text of the provision
adopted or repealed, or the text indicating how the provision
is being amended, as the case may be.
(f) Access to Certain Information on Commission's Website.--
The Commission shall provide direct access from the homepage of
its website to--
(1) detailed information regarding--
(A) the budget of the Commission for the
current fiscal year;
(B) the appropriations for the Commission for
such fiscal year; and
(C) the total number of full-time equivalent
employees of the Commission; and
(2) the performance plan most recently made available
by the Commission under section 1115(b) of title 31,
United States Code.
(g) Internet Publication of Certain FCC Policies and
Procedures.--The chairman of the Commission shall--
(1) publish on the Internet website of the Commission
any policies or procedures of the Commission that--
(A) are established by the chairman; and
(B) relate to the functioning of the
Commission or the handling of the agenda of the
Commission; and
(2) update such publication not later than 48 hours
after the chairman makes changes to any such policies
or procedures.
(h) Federal Register Publication.--
(1) In general.--In the case of any document adopted
by the Commission that the Commission is required,
under any provision of law, to publish in the Federal
Register, the Commission shall, not later than the date
described in paragraph (2), complete all Commission
actions necessary for such document to be so published.
(2) Date described.--The date described in this
paragraph is the earlier of--
(A) the day that is 45 days after the date of
the release of the document; or
(B) the day by which such actions must be
completed to comply with any deadline under any
other provision of law.
(3) No effect on deadlines for publication in other
form.--In the case of a deadline that does not specify
that the form of publication is publication in the
Federal Register, the Commission may comply with such
deadline by publishing the document in another form.
Such other form of publication does not relieve the
Commission of any Federal Register publication
requirement applicable to such document, including the
requirement of paragraph (1).
(i) Consumer Complaint Database.--
(1) In general.--In evaluating and processing
consumer complaints, the Commission shall present
information about such complaints in a publicly
available, searchable database on its website that--
(A) facilitates easy use by consumers; and
(B) to the extent practicable, is sortable
and accessible by--
(i) the date of the filing of the
complaint;
(ii) the topic of the complaint;
(iii) the party complained of; and
(iv) other elements that the
Commission considers in the public
interest.
(2) Duplicative complaints.--In the case of multiple
complaints arising from the same alleged misconduct,
the Commission shall be required to include only
information concerning one such complaint in the
database described in paragraph (1).
(j) Form of Publication.--
(1) In general.--In complying with a requirement of
this section to publish a document, the Commission
shall publish such document on its website, in addition
to publishing such document in any other form that the
Commission is required to use or is permitted to and
chooses to use.
(2) Exception.--The Commission shall by rule
establish procedures for redacting documents required
to be published by this section so that the published
versions of such documents do not contain--
(A) information the publication of which
would be detrimental to national security,
homeland security, law enforcement, or public
safety; or
(B) information that is proprietary or
confidential.
(k) Transparency Relating to Performance in Meeting FOIA
Requirements.--The Commission shall take additional steps to
inform the public about its performance and efficiency in
meeting the disclosure and other requirements of section 552 of
title 5, United States Code (commonly referred to as the
Freedom of Information Act), including by doing the following:
(1) Publishing on the Commission's website the
Commission's logs for tracking, responding to, and
managing requests submitted under such section,
including the Commission's fee estimates, fee
categories, and fee request determinations.
(2) Releasing to the public all decisions made by the
Commission (including decisions made by the
Commission's Bureaus and Offices) granting or denying
requests filed under such section, including any such
decisions pertaining to the estimate and application of
fees assessed under such section.
(3) Publishing on the Commission's website electronic
copies of documents released under such section.
(4) Presenting information about the Commission's
handling of requests under such section in the
Commission's annual budget estimates submitted to
Congress and the Commission's annual performance and
financial reports. Such information shall include the
number of requests under such section the Commission
received in the most recent fiscal year, the number of
such requests granted and denied, a comparison of the
Commission's processing of such requests over at least
the previous 3 fiscal years, and a comparison of the
Commission's results with the most recent average for
the United States Government as published on
www.foia.gov.
(l) Prompt Release of Statistical Reports and Reports to
Congress.--Not later than January 15th of each year, the
Commission shall identify, catalog, and publish an anticipated
release schedule for all statistical reports and reports to
Congress that are regularly or intermittently released by the
Commission and will be released during such year.
(m) Annual Scorecard Reports.--
(1) In general.--For the 1-year period beginning on
January 1st of each year, the Commission shall prepare
a report on the performance of the Commission in
conducting its proceedings and meeting the deadlines
established under subsection (a)(2)(E) and the
guidelines established under subsection (a)(2)(F).
(2) Contents.--Each report required by paragraph (1)
shall contain detailed statistics on such performance,
including, with respect to each Bureau of the
Commission--
(A) with respect to each type of filing
specified in subsection (a)(2)(E) or
(a)(2)(F)--
(i) the number of filings that were
pending on the last day of the period
covered by such report;
(ii) the number of filings described
in clause (i) for which each applicable
deadline or guideline established under
such subsection was not met and the
average length of time such filings
have been pending; and
(iii) for filings that were resolved
during such period, the average time
between initiation and resolution and
the percentage for which each
applicable deadline or guideline
established under such subsection was
met;
(B) with respect to proceedings before an
administrative law judge--
(i) the number of such proceedings
completed during such period; and
(ii) the number of such proceedings
pending on the last day of such period;
and
(C) the number of independent studies or
analyses published by the Commission during
such period.
(3) Publication and submission.--The Commission shall
publish and submit to the Committee on Energy and
Commerce of the House of Representatives and the
Committee on Commerce, Science, and Transportation of
the Senate each report required by paragraph (1) not
later than the date that is 30 days after the last day
of the period covered by such report.
(n) Definitions.--In this section:
(1) Amendment.--The term ``amendment'' includes, when
used with respect to an existing rule, the deletion of
such rule.
(2) Bipartisan majority.--The term ``bipartisan
majority'' means, when used with respect to a group of
Commissioners, that such group--
(A) is a group of 3 or more Commissioners;
and
(B) includes, for each political party of
which any Commissioner is a member, at least 1
Commissioner who is a member of such political
party, and, if any Commissioner has no
political party affiliation, at least one
unaffiliated Commissioner.
(3) Performance measure.--The term ``performance
measure'' means an objective and quantifiable outcome
measure or output measure (as such terms are defined in
section 1115 of title 31, United States Code).
(4) Program activity.--The term ``program activity''
has the meaning given such term in section 1115 of
title 31, United States Code, except that such term
also includes any annual collection or distribution or
related series of collections or distributions by the
Commission of an amount that is greater than or equal
to $100,000,000.
(5) Other definitions.--The terms ``agency action'',
``ex parte communication'', and ``rule'' have the
meanings given such terms in section 551 of title 5,
United States Code.
* * * * * * *
----------
PUBLIC LAW 108-494
AN ACT To amend the National Telecommunications and Information
Administration Organization Act to facilitate the reallocation of
spectrum from governmental to commercial users; to improve, enhance,
and promote the Nation's homeland security, public safety, and citizen
activated emergency response capabilities through the use of enhanced
911 services, to further upgrade Public Safety Answering Point
capabilities and related functions in receiving E-911 calls, and to
support in the construction and operation of a ubiquitous and reliable
citizen activated system; and to provide that funds received as
universal service contributions under section 254 of the Communications
Act of 1934 and the universal service support programs established
pursuant thereto are not subject to certain provisions of title 31,
United States Code, commonly known as the Antideficiency Act, for a
period of time.
* * * * * * *
TITLE III--UNIVERSAL SERVICE
* * * * * * *
SEC. 302. APPLICATION OF CERTAIN TITLE 31 PROVISIONS TO UNIVERSAL
SERVICE FUND.
(a) In General.--During the period beginning on the date of
enactment of this Act and ending on [December 31, 2016]
December 31, 2020, section 1341 and subchapter II of chapter 15
of title 31, United States Code, do not apply--
(1) to any amount collected or received as Federal
universal service contributions required by section 254
of the Communications Act of 1934 (47 U.S.C. 254),
including any interest earned on such contributions;
nor
(2) to the expenditure or obligation of amounts
attributable to such contributions for universal
service support programs established pursuant to that
section.
(b) Post-2005 Fulfillment of Protected Obligations.--Section
1341 and subchapter II of chapter 15 of title 31, United States
Code, do not apply after [December 31, 2016] December 31, 2020,
to an expenditure or obligation described in subsection (a)(2)
made or authorized during the period described in subsection
(a).
* * * * * * *
DISSENTING VIEWS
----------
Dissenting Views on H.R. 2583, the ``Federal Communications Commission
Process Reform Act of 2015''
Congress and the House Energy and Commerce Committee have
had a long-standing interest in process reform at the Federal
Communications Commission (FCC). Our efforts in the last
Congress were bipartisan in nature, with Members on both sides
thoughtfully examining concerns and developing appropriate
solutions.
A different approach, however, was taken this Congress.
Rather than work from the carefully negotiated, bipartisan
language addressing FCC process reform that passed the House in
2014, the Republicans deliberately decided to release several
discussion draft bills at the opening of the 114th Congress to
retaliate against and effectively punish the Commission for
adopting an order titled and widely known as Protecting and
Promoting the Open Internet (docketed at the FCC under GN
Docket No. 14-28).
Our Committee's Republicans have vehemently opposed the
Open Internet Order and made it one of their highest-priority
targets. Republicans returned to negotiate in good faith on
bipartisan principles and language addressing process reform
only after Energy and Commerce Committee Democrats offered our
alternatives to the three Republican proposals, which are
described briefly below and in greater detail later on in these
views. Much of the platform for bipartisan agreement came from
understandings and legislative text we had agreed to as we
neared the end of the 113th Congress.
While we appreciate that Committee Republicans have adopted
some Democratic suggestions to improve on H.R. 2583, we cannot
support this bill, as it continues to include other very ill-
advised provisions. Specifically, we object to those amendments
that would require the FCC to publish (1) rules (but not
explanatory text) within 24 hours after adoption by the
Commission, (2) draft Commission items, and (3) a list of items
taken up by FCC staff under delegated authority, 48 hours
before action.
These provisions are designed to slow the work of the FCC,
potentially cause conflicts in law, and create confusion for
stakeholders. We believe that rather than punitively slowing
the FCC down, FCC process reform should make the FCC faster,
more efficient, and more transparent.
BACKGROUND
The FCC is an independent federal agency established by the
Communications Act of 1934, as amended (the Act). The FCC
issues rules consistent with the requirements of the
Administrative Procedure Act (APA).
The APA applies to all federal executive departments and
independent federal agencies. Congress enacted the APA to
establish consistency and predictability and to provide an
opportunity for the public to participate in agency decision-
making across the federal government.
A. FCC progress in reforming Agency process
FCC Chairman Wheeler has made it a priority, since the
beginning of his tenure in November 2013, to improve the
efficiency and transparency of the FCC's processes. Immediately
upon taking office, Chairman Wheeler directed a top advisor to
develop process reform recommendations. Initial recommendations
included streamlining agency processes and data collections;
eliminating or streamlining outdated rules; improving
interactions with external stakeholders; and improving the
internal management of the agency.\1\ The Commission sought
comment from stakeholders on the proposed recommendations, and
the FCC is actively working toward implementing reforms.
---------------------------------------------------------------------------
\1\Federal Communications Commission, Report on FCC Process Reform
(Feb. 14, 2014) (online at: www.fcc.gov/article/da-14-199a2).
---------------------------------------------------------------------------
The FCC also has made measurable progress in significantly
reducing its backlog of pending petitions, applications,
complaints, and requests. Since May 2014, the volume of items
pending before the agency for more than six months has been
reduced by over 44 percent.\2\ In addition, the FCC has
prioritized releasing its decisions to the public as quickly as
possible; 85 percent of items are publicly released within two
business days of adoption. Building on these efforts, Chairman
Wheeler announced a new Process Reform Task Force in April 2015
that will consider additional reform proposals and include
staff from the other Commissioners' offices.
---------------------------------------------------------------------------
\2\Letter from Chairman Wheeler to Chairman Walden (Apr. 16, 2015).
---------------------------------------------------------------------------
B. FCC Process Reform Legislation in the 113th Congress
H.R. 3675, introduced in the 113th Congress, would have
removed the FCC from the predictability of existing APA rules.
Administrative Law experts testified that by removing the FCC
from the standards of the APA, the bill, as introduced, could
have created significant uncertainty, litigation risk, and
higher transaction costs.\3\ As a result of bipartisan
negotiations in Committee, Democrats were able to address
several areas of concern in the bill as introduced. The final
bill required the FCC to examine a number of potential process
reforms and was reported out of the Energy and Commerce
Committee, and passed by the House in March 2014.
---------------------------------------------------------------------------
\3\House Committee on Energy and Commerce, Hearing on ``Improving
FCC Process,'' Subcommittee on Communications and Technology, 113th
Cong. (July 11, 2013).
---------------------------------------------------------------------------
ANALYSIS OF H.R. 2583, THE FEDERAL COMMUNICATIONS COMMISSION PROCESS
REFORM ACT OF 2015
The following is a brief summary and analysis of the
legislation.
A. Summary of H.R. 2583, as introduced
H.R. 2583 was introduced on May 29, 2015, and reported
favorably from the Energy and Commerce Committee, as amended,
on June 3, 2015. The major provisions of the introduced bill
would require the FCC to:
(1) Complete a rulemaking proceeding to adopt
procedural rule changes to maximize opportunities for
public participation;
(2) Complete an inquiry on whether and how the FCC
should establish procedures where a bipartisan majority
of commissioners can place an item on an agenda, as
well as other procedural changes including establishing
deadlines for application processing;
(3) Provide information on the FCC webpage regarding
budget;
(4) Create a consumer complaint database;
(5) Modify FOIA performance; and (6) Release annual
performance reports.
The bill included a 4-year extension of the Universal
Service Fund's exemption from the Anti-deficiency, and the bill
included the text of the FCC Collaboration Act (H.R. 1396),
which was introduced by Representative Eshoo. H.R. 1396 would
allow two or more commissioners to discuss FCC business outside
of an FCC open meeting, but also provides sufficient safeguards
to protect against abuse.
H.R. 1396 was one of the specific Democratic process reform
proposals discussed during the Communications and Technology
Subcommittee's hearing on April 30, 2015. The origin of the
bill dates back to December 2009, and has had bipartisan
support since the 112th Congress. It previously has been
included as part of the broader FCC Process Reform bill.
Unfortunately, the reported bill language delays the
effectiveness of this important provision until after the other
reforms are implemented without any substantive reason for such
delay. In fact, the FCC Process Reform bill from 2012 did not
include a delay in the implementation of the FCC Collaboration
Act provisions. Such a delay appears to be arbitrary and
contrary to the witness testimony from the May 15, 2015,
Subcommittee hearing supporting immediate implementation of the
FCC Collaboration Act.\4\
---------------------------------------------------------------------------
\4\House Committee on Energy and Commerce, Hearing on ``Improving
FCC Transparency, Part II,'' Subcommittee on Communications and
Technology, 114th Cong. (May 15, 2015).
---------------------------------------------------------------------------
B. Democratic provisions added at Full Committee Markup.
At the April 30, 2015 Communications and Technology
Subcommittee hearing on FCC transparency, Democratic members
suggested several reforms to FCC process designed to ensure
that the FCC remain fast, efficient, and transparent without
creating an unnecessary risk of litigation for the agency. The
Republicans recognized the value of the Democratic suggestions,
agreeing to offer an amendment that incorporated the ideas of
Representatives Clarke, Loebsack, and Matsui.
The Democratic amendment requires the FCC to report
quarterly to Congress and to post, on its website, data on the
total number of decisions pending, categorized by bureau, the
type of request, the length of time pending, as well as a list
of pending Congressional investigations and their costs to the
agency.\5\ Notwithstanding the impressive progress the FCC has
made toward issuing rules and closing pending matters in a more
timely fashion, the best way to ensure that future commissions
continue this trend is by holding the agency accountable to the
public. The public deserves timely responses from the FCC and
information as to whether the FCC is acting on an application
or a request for new rules. The Democratic amendment would seek
to do that.
---------------------------------------------------------------------------
\5\See New Section 13(a)(2)(D) which would amend the Communications
Act (contained in Section 2(a) of H.R. 2583).
---------------------------------------------------------------------------
The amendment also requires the FCC to coordinate with the
Small Business Administration to develop recommendations to
improve small business participation in FCC proceedings.\6\
Small business inclusion is critical, as the FCC oversees
industries that account for one sixth of the economy, including
countless small businesses. Small businesses in every community
throughout the country are impacted by many of the decisions
and rules that the FCC adopts, and the voices of small
businesses should be heard with greater consistency and
regularity at the FCC.
---------------------------------------------------------------------------
\6\See Section 6 of H.R. 2583.
---------------------------------------------------------------------------
Finally, the amendment requires the FCC chairman, as the
head of the agency, to post the Commission's internal policies
and procedures on the FCC website and to disclose any
modifications to those procedures within 48 hours.\7\ Public
participation at the FCC is at an all-time high with millions
of Americans reaching out to the FCC. Consumers should have as
much visibility into the operations of the FCC as large
corporate interests and their well-compensated legal and other
professional services firms.
---------------------------------------------------------------------------
\7\See New Section 13(g) (contained in Section 2(a) of H.R. 2583).
---------------------------------------------------------------------------
The amendment, which was agreed to by voice vote, will
enhance the process reforms included in H.R. 2583 without
compromising existing FCC processes or penalizing the FCC.
Unfortunately, the same cannot be said for other Republican
amendments that were added at the Full Committee markup and are
treated below in greater detail.
C. Republican provisions added at Full Committee Markup
Republican members of the Committee also offered several
amendments that defeat the purported intent of the FCC process
reform bill--to make the FCC a more efficient agency.
1. Rep. Kinzinger Amendment
The Kinzinger amendment requires that the FCC publish on
its website any action the Commission plans to vote on three
weeks prior to that vote.\8\ This proposal echoes a letter the
Republicans sent to FCC Chairman Wheeler in January 2015,
asking him to release his draft network neutrality order before
the other Commissioners had an opportunity to review it.\9\
---------------------------------------------------------------------------
\8\See New Section 13(d) (contained in Section 2(a) of H.R. 2583).
\9\Letter from Rep. Fred Upton. Rep. Greg Walden, and Senator John
Thune to FCC Chairman Tom Wheeler (Jan. 22, 2015).
---------------------------------------------------------------------------
A requirement that the FCC release pre-decisional drafts
runs counter to the policy underlying the exemption to the
Freedom of Information Act (FOIA) for internal deliberative
processes of an agency.\10\ By creating a potential conflict of
law with FOIA, this bill could increase the risk of litigation
for many FCC actions.
---------------------------------------------------------------------------
\10\See Department of Justice Guide to Freedom of Information Act,
366 available at http://www.justice.gov/sites/default/files/oip/legacy/
2014/07/23/exemption5_1.pdf (explaining that the Freedom of Information
Act protects inter-agency work product to ``(1) to encourage open,
frank discussions on matters of policy between subordinates and
superiors; (2) to protect against premature disclosure of proposed
policies before they are actually adopted; and (3) to protect against
public confusion that might result from disclosure of reasons and
rationales that were not in fact ultimately the grounds for an agency's
action.'').
---------------------------------------------------------------------------
Posting draft documents could also spark an unending cycle
of lobbying on successive draft items. Specifically, any new
arguments raised in the record in response to the draft text
could force the agency to trigger a new round of notice and
comment. These lobbying cycles could undermine the ability of
minority Commissioners to negotiate changes in a draft once the
draft has been made public. Democrats believe this amendment
would impose an inappropriate policy on the FCC that would
significantly affect the Commission's ability to make final
decisions.
2. Rep. Ellmers Amendment
The Ellmers amendment requires that the FCC publish, on its
website, any changes to the Commission's rules within 24 hours
of adoption.\11\ This requirement could potentially conflict
with the APA, which requires an agency to release explanatory
text along with any new rules.\12\ For each provision that
appears in the Code of Federal Regulations, the explanatory
text is vital to understanding the actual rules. This bill
would separate the two, creating confusion and uncertainty for
stakeholders. Again, Democrats believe that any FCC process
reforms should enhance the public's ability to understand the
actions of the FCC, and the Ellmers amendment would do the
opposite.
---------------------------------------------------------------------------
\11\See New Section 13(e) (contained in Section 2(a) of H.R. 2583).
\12\5 U.S.C. 553(c) (requiring agencies to ``incorporate in the
rules adopted a concise general statement of their basis and
purpose''); see also Federal Register Guidance at https://
www.federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf
(instructing agencies to include a number of explanatory sections along
with new rules).
---------------------------------------------------------------------------
3. Rep. Latta Amendment
The Latta amendment requires that the FCC publish
information on its website 48 hours before making a decision on
``delegated authority.''\13\ Delegated authority allows the
heads of FCC Bureaus and Offices to make decisions so long as
new legal issues are not presented. As a practical matter,
delegated authority is overwhelmingly used to conduct the
routine business of the FCC, such as processing applications
and issuing public notices. Thousands of actions are taken on
delegated authority on a yearly basis. These actions are not
final until they are released by the FCC, and the FCC can
decide not to take an action at any time before it releases the
item.
---------------------------------------------------------------------------
\13\See Section 7 of H.R. 2583.
---------------------------------------------------------------------------
Requiring the Commission to post a description of potential
actions before those actions are finalized could create
confusion and may cause unwarranted administrative burdens on
the FCC. Under its informal procedures, Commissioners are
notified 48 hours before Bureaus take action on items that the
Chairman's office believes may be of interest to the
Commissioners. This procedure is designed to balance the need
to keep Commissioners informed while not overwhelming them with
notice about each of the thousands of routine actions taken by
the bureaus.
The actions contemplated in the Latta amendment go far
beyond the informal policies in place at the Commission. Adding
the new notice requirement contemplated by the amendment could
have the perverse effect of slowing down the work of the FCC.
Stakeholders could face uncertainty and longer wait times for
previously routine decisions. Democrats believe that such a
requirement defeats the purported intent of the FCC process
reform bill--to make the FCC a more efficient agency.
D. Keeping Our Campaigns Honest (KOCH) Act Amendment
An integral part of the Democratic alternative to promoting
process reform and increasing transparency, known as the KOCH
Act (H.R. 2125), was introduced by Rep. Yarmuth on April 30,
2015. Although it was discussed at the legislative hearings, it
was not considered at all for action at either the Subcommittee
or full Committee markups of H.R. 2583.
The KOCH Act would increase transparency for TV viewers and
radio listeners by requiring the FCC to modify its sponsorship
identification rules to mandate the disclosure of significant
donors to entities or persons purchasing issue advertisements.
Transparency is an important issue, and it should not stop at
the doors of the FCC. The public deserves to know who is paying
for the advertisements they see on TV and hear on the radio,
and the KOCH Act's simple direction to the FCC would make such
transparency a reality.
We appreciate that the Majority attempted to work in a
bipartisan manner and included some of the Democratic proposals
within the reported bill. But due to the adoption of Republican
amendments offered by Representatives Kinzinger, Ellmers, and
Latta, and the adverse and severe impacts such provisions would
have on the FCC's ability to operate quickly, efficiently, with
integrity, and in a transparent manner, we strongly dissent
from the majority views that are expressed in the Committee
report.
Frank Pallone, Jr.,
Ranking Member,
Committee on Energy and Commerce.
Anna G. Eshoo,
Ranking Member,
Subcommittee on Communications and Technology.
[all]