FCC Reforms Likely to Return as Agenda Item in Next Congress, Experts Say

FCC process reform will likely return as a major tech issue in the next Congress, industry experts said Tuesday at a TechFreedom event, but they were unsure of how effective a legislative solution would be. Continued Republican control in the House means FCC reform measures like those introduced in the last session -- including by Reps. Greg Walden, R-Ore., and Steve Scalise, R-La. -- will remain on the agenda when the new House convenes (CD Nov 13 p1).

There is certainly value to Congress passing process reforms, said Ray Gifford of law firm Wilkinson Barker. While “disagreement on the margin” held such a bill back from passage in both houses in the current term, it’s possible a consensus could be reached in the upcoming Congress, he said: “It’s a little bit like rearranging the deck chairs on the Titanic, though. The fundamental cultural outlook and gestalt of the agency is not going to be changed by a few rules, it seems to me.” There are things the FCC can do internally that would benefit the agency, including “imposing some self-discipline -- things like shot clocks, things like a degree of transparency about how things are being and why they're being done,” Gifford said.

FCC reform could do “a lot of good,” but will likely need to happen on a statutory basis, said Fred Campbell, director of the Competitive Enterprise Institute’s Communications Liberty and Innovation Project. “I was surprised at how much resistance there was toward doing something to try to reform the agency.” Walden’s FCC Process Reform Act (HR-3309) passed the House in late March but its twin has not made it out of the Senate Commerce Committee (http://xrl.us/bmzumn). A pure process reform bill has a chance of making it through Congress, said Public Knowledge President Gigi Sohn. “The problem with [HR-3309] was it wasn’t just process,” she said. “It also changed the public interest standard in a way that was very similar to DACA, and I think that’s what made a lot of folks uncomfortable,” she said, referring to the Digital Age Communications Act sponsored years ago by Sen. Jim DeMint, R-S.C.

The FCC chairmanship retains too much power as it is currently structured, Sohn said. “I believe that if two other commissioners want to put something on the agenda, they should be able to do that. The one thing I liked about [HR-3309] was Sunshine Act reform. ... When you prohibit more than two commissioners from meeting at one time, the power is in the staff. So I think that needs to be changed."

Merger review should also be a part of any FCC reform bill, Sohn said. “I think it should be straight up or down,” she said. Having “tons of conditions” has not worked because “the FCC doesn’t enforce them, and when the agency enforces them, I don’t think it works either.” Sohn said she agreed with the FCC’s work on the failed AT&T/T-Mobile merger, but did not agree with its actions on the Comcast-NBCUniversal deal. “Layering it with 50 pages of obligations, 99 percent of which are not being enforced, is a waste of everybody’s time,” she said.