House Dems to Fight FCC Process Reform

Vote on markup to split along party lines

Democrats are expected to fight GOP attempts to move along legislation that would reform how the Federal Communications Commission operates. In a 12-page House Energy & Commerce Subcommittee staff memo, Democrats found little they liked about the two bills that will be marked up Wednesday by the Subcommittee on Communications and Technology.

The two bills were introduced earlier this month by the subcommittee chairman, former broadcaster Rep. Greg Walden (R-Ore.), who has taken aim at the FCC for a number of its decisions. These include the controversial net neutrality rules and the FCC's practice of eliciting voluntary conditions in merger reviews that are not part of the FCC's statutory authority.

The subcommittee has already held two hearings on FCC process reform where Democrats and Republicans butted heads. Though some of the Democratic suggestions were included in the bills (which the memo acknowledged in one sentence), it's unlikely to be enough to generate any Democratic votes, splitting the subcommittee vote along party lines.

Democrats say the bills—which would require the FCC to conduct cost-benefit analysis prior to rulemakings, set shot clocks for its procedures, and release the full text of rules prior to votes—would "have the potential to undo over 40 years of federal court precedents and create uncertainty and confusion for the FCC and interested stakeholders going forward."

Democrats also claim in the memo that the provisions would amend the FCC's public interest standard: "This rewrite of the existing public interest test for transactions is not merely about 'process,' but directly shapes the substantive agency in the future." The changes, Democrats argue, "could ultimately make the FCC less effective, agile, and transparent."

In its own memo, the GOP points out that the legislation is based on the president's January 2011 Executive Order to improve regulation and regulatory review and simply requires the FCC to set up its own process rules and then follow them. "While Chairman [Julius] Genachowski has made good progress in improving process, only statutory changes can ensure that best practices continue from one administration to the next," the GOP staff memo says.