The FCC oversight hearing in the House Communications Subcommittee began with some fireworks.
"Under the current power structure at the FCC the chairman has incredible authority that none of the other commissioners has because the chairman alone controls access to FCC information, he or she can call in their own 'validators' to get the inside track and become a well-tuned chorus of support for their pet policies," said Subcommittee chairman Greg Walden in his opening statement. “'Friends of the chairman get special perks to weigh in and access information that the rest of the public doesn’t get to see, and that other commissioners can’t even discuss. Commissioner [Michael] O’Rielly exposes this charade for what it is in his testimony. None of us on this committee would tolerate the insult to our First Amendment rights that the commissioners at the FCC must suffer at the hands of the chairman."
Walden also said the FCC was not "some venture capital firm" — FCC chairman Tom Wheeler formerly headed such a firm —but an agency that reported to Congress.
Wheeler was in the room as one of two witnesses at the hearing. When ranking member Anna Eshoo (D-Calif.) got her chance to speak, she said she did not like chairman Wheeler being welcomed to the committee and used as a piñata. She upbraided Walden for using terms like "charade" and suggested the reform proposals were a way to get back at the FCC for Republican's failure to stop it from approving Title II regulations for ISPs. Rep. Frank Pallone (D-N.J.), ranking member of the full Energy & Commerce Committee, echoed her concerns,
Walden reclaimed some time from a Republican colleague to clarify that he was talking about the powers of the FCC chairman, not their use by any particular chairman, and said that the reforms had nothing to do with network neutrality or, for that matter, that Wheeler's Ohio State Buckeyes had trounced his Oregon Ducks (for the national championship in football).
The hearing broke for votes, but was scheduled to resume as quickly as those could be cast.
The Republican-backed reform bills would require the commission to list the items that have been approved at the bureau level on delegated authority, to publish the drafts of rulemakings when they are circulated to the other commissioners by the chairman's office before a vote, and to publish rules the same day they are voted on.
In advance of the hearing and in response to the Republican bills, Dems offered up a quartet of their own reform bill drafts, which Walden said he had only just seen but that, on first read, made a lot of sense to him.
When the legislators returned, Walden welcomed Wheeler, who had yet to give his testimony, and thanked him for being there.
In that testimony, Wheeler pointed out that the average time between an order's release during his stewardship had been 1.8 days, versus 8.7 days under former chairman Michael Powell and 10.7 days under chairman Kevin Martin, both Republicans.
He also said that the number of items decided on delegated authority, which he pointed out were implementing decisions the commission had already voted on, was at a 15-year low.
Wheeler took aim at the Republican reforms bills, while pledging to produce some reforms out of the FCC's own reform task force--created last month--by the time Congress returned from its August recess. Commissioner Michael O'Rielly, who was the other witness at the hearing, leveled his process criticism, but also talked about working with the chairman to clear out thousands of indecency complaints to help further up station license renewals.
Wheeler said that publishing pre-decisional draft orders would turn the FCC into a not-so-fun House of Mirrors of endless decisions. He said the FCC's open Internet order's 300-plus pages may have drawn guffaws, but that was what was required for the FCC to explain its decision to a court's satisfaction, including having to respond to all dissents to the order.
He said publishing a draft would open another whole comment and response process that would send the FCC down an administrative rabbit hole.