Congress Can’t Agree on FCC Reform

Longstanding Political Divide Impedes Progress
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WASHINGTON — The House Communications Subcommittee wrapped up its hearing on Federal Communications Commission process reform last week, and the signs were strong that proposed legislation would get no more traction than similar efforts in the previous Congress.

While both Republicans and Democrats agreed that regulating communications by various service “silos” is so last century, the GOP-backed bills last week exposed the longstanding political divide over putting the FCC on a shot clock, limiting its merger condition authority and giving commissioners power to control the agenda.

On one side of those bills were Republican legislators who argued they were necessary to speed FCC decision-making, tie decisions to a cost-benefit analysis of any new regulations, improve transparency and limit the agency’s ability to impose merger conditions, which they suggest are a vehicle for back-door regulations.

Subcommittee chairman Greg Walden (R-Ore.) said the communications sector is one of the few that is “firing on all cylinders,” but that poor FCC processes threaten the health of the sector, and codifying “certain protections” is necessary. Walden said he was only asking of the FCC what he would of a gradeschooler: “Show your work.”

Republicans were pulling out the stops. Several invoked the recent incidents involving the Internal Revenue Service, Justice Department and National Security Agency as further evidence that the committee should be looking to inject more transparency into the FCC process. Citing what she said were all those “scandals,” Rep. Marsha Blackburn (R-Tenn.) said that only in Washington did it seem acceptable to allow an agency to be reckless with taxpayer money.

FCC chairman-designate Tom Wheeler also came in for some Republican criticism. Walden pointed to a 2011 Wheeler blog post — which he wrote when he was a venture capitalist — that said the FCC could have put conditions on the AT&T/T-Mobile merger that could then have been more generally applied.

But Wheeler has since explained in his Senate nomination hearing that the comment had been “hypothetical speculation,” and that a regulator’s mandate for reviewing mergers, a job he said was one of the FCC’s most important, is to look at statutory directives from Congress, the facts in a specific merger and legal precedent.

On the other side were Democrats, who, in effect, said the committee was essentially wasting its precious time debating bills similar to, and even more onerous than, ones that had failed to get traction in the past.

Full-committee ranking member Henry Waxman (D-Calif.) said the GOP legislation was a way to undermine the FCC’s ability to adopt new rules and protect consumers, and that the only thing it would efficiently speed was endless legal challenges. It would also impose new costs and obligations, and effectively take the FCC out of the merger-review equation, leaving that to the Justice Department, whose deliberations, unlike the FCC’s, are nonpublic.

Waxman also pointed out that the FCC’s review goes beyond antitrust issues to include diversity, impact on jobs and other public-interest considerations.

TAKEAWAY

Republicans and Democrats are no closer to agreeing on FCC reforms than they were in the last Congress.

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