FCC Proposes Onerous Wireless Renewal Requirements

Posted on August 19, 2010 by Christine E. Goepp

Applicants would have to track down and turn over multiple documents – all of which the FCC already has.

Wireless licensees take note: the FCC has proposed changes to its renewal procedures, changes that could mean a lot of extra work for you, with little clear public benefit. 

The Commission is proposing to require wireless licensees to submit, along with their renewal applications, copies of all FCC orders finding a violation or apparent violation issued with respect to the licensee during the license term, whether or not the violation(s) (or alleged violation(s)) relate to the license being renewed – and whether or not a violation was ultimately found. That’s right – the FCC wants more copies of its own documents. It also wants a list of petitions to deny filed for any reason against any application submitted by the licensee – again, even applications involving licenses that are not part of the subject renewal application.

But wait. It gets worse.

Not only would the licensee/renewal applicant have to produce its own documents, it would have to track down and turn over a similar universe of documents for each of its “affiliates” – “affiliates” not just in the usual sense of “under common control or management”, but in the very broad sense of sharing facilities, participating in joint venture arrangements, or even just having contractual relationships. (For all the unpleasant details, check out the definition of “affiliate” in Section 1.2110 (c)(5) of the FCC’s rules.) This broad definition normally applies in auctions, to avoid competitive bidding credits going to undeserving entities. It does not fit well in the renewal context, where the point is to assess the qualifications of the licensee, not entities that it can’t control. 

Worse, the proposed document production exercise would repeat each time any license held by the applicant and any of its affiliated entities comes up for renewal. Especially for larger entities, the procedure would result in a cascade of repeated document productions, in some cases involving hundreds of affiliates and thousands of licenses. No wonder AT&T and Sprint are worried. This type of due diligence is no cakewalk for smaller entities either, who will have fewer resources to put towards compiling the required information. 

Expensive, time-consuming – and probably unlawful.   The federal Paperwork Reduction Act (yes, it’s hard to tell, but there really is one) bars governmental agencies from requiring the filing of “unnecessarily duplicative” information otherwise reasonably accessible to the FCC. All of the requested paper is already in the FCC’s own files. If that isn’t unnecessarily duplicative, then nothing is.

After all that, if the Commission finds an applicant’s submission to be “insufficient”, the Commission will deny the application. Don’t ask us what “insufficient” means – the FCC isn’t saying. Apparently, like Justice Stewart in Jacobellis v. Ohio, it will know it when it sees it. Given that people’s livelihoods can be at stake, we expect a better articulation of what the Commission is looking for. We think the Administrative Procedures Act expects the same.

Reply comments about the proposed rule changes are due by August 23. The Commission will accept ex parte communications after that.
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Paperwork Reduction Act Alive and Kicking

Posted on December 8, 2008 by Donald Evans

FCC to OMB: "No mas!"

One of the pleasant vestiges of 1980 is the Paperwork Reduction Act, a law intended to curb the excesses of federal regulatory agencies by mandating independent review of all new regulations which impose paperwork burdens on the public.  The idea was that agencies must quantify and justify such burdens before imposing them on regulated industries or the public.  The Office of Management and Budget (OMB) was appointed to be the final checkpoint on the regulatory assembly line to ensure that agencies were not overstepping.  This, of course, was in the era when "big gov'ment" was Public Enemy #1, and "paperwork" was a dirty word. 

There's obviously been some slippage since 1980 as the FCC has imposed burden after burden on the telecom industries, many of which involve considerable expense and reams of paperwork in the form of periodic reports or record-keeping.  The vast majority of these regs have been rubber-stamped with OMB approval.   (Ironically, the process actually increases the amount of paperwork generated by an agency as part of its justification of the paperwork it is imposing on others.)

That's why it was satisfying last week to see OMB manfully exercise a rare veto over an FCC rule.

Specifically, the FCC had adopted rules which imposed an obligation on the largest cellular carriers to maintain eight hours of emergency battery back-up at cell sites. (This was a knee-jerk reaction to difficulties encountered during Hurricane Katrina when many cell sites lost electrical power and could not operate for hours or days.)  The rule elicited howls of protest from the affected carriers who challenged the procedures used by the FCC in adopting the rules as well as the enormity of the burden which had rather casually been imposed.

The tenuousness of the FCC position was first confirmed when the reviewing court of appeals granted a stay of the rules -- an indication that it considered the appeal to have substantial merit. When it came time for oral argument, the Court suddenly became interested in the Paperwork Reduction Act. Since OMB had not yet signed off on the rules, the court decided that the case was not yet ripe for action.   If OMB ultimately rejected the rules, the Court reasoned, the Court would have wasted its time reviewing the substance of the rules -- and courts never decide cases if they don't have to. The case was therefore remanded to the FCC to await OMB action.  

It turns out that the Court's reticence was well-founded. OMB did reject the rules as being unjustifiably burdensome. While an agency can contest the OMB's determination, the FCC has decided not to do so. The rules are therefore ineffective unless and until the FCC revises them and justifies whatever burden is then created.  The FCC has now announced that it is throwing in the towel and going back to the drawing board on these rules, so the world is temporarily safe from battery back-up requirements.

The larger lesson here, though, is that the Paperwork Reduction Act remains a viable, if little used, salient in the public's thin defenses against the onslaught of federal regulation. This decision may invigorate the industry to aggressively challenge FCC regulations at the OMB level with the hope that somebody over there is now actually listening.
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Form 355 and Website Public File Posting: Soon in the Crosshairs at OMB

Posted on March 13, 2008 by Anne G. Crump

Last November, the FCC announced that it had adopted a new "enhanced" programming report for TV licensees, and also that it would require TV licensees to post pretty much all of the local public files on their respective websites.  From March 13 until May 12, we all have an opportunity to send comments on the resulting paperwork to the FCC, which will then pass the comments on to the Office of Management and Budget (OMB) to let them how we feel about these new burdens.

OMB gets involved because the new reporting and website posting requirements are what the Federal government calls "information collection" activities.  Under the Paperwork Reduction Act, before an agency like the FCC can impose new information collection activities, it has to get OMB to bless them.  So the FCC has now had a notice published in the Federal Register to solicit comments related to the Paperwork Reduction Act, which then will be added to its own presentation and forwarded to OMB for its consideration.

We strongly encourage everyone to take advantage of this opportunity.  It is at least possible that a compelling showing of the extreme burdens imposed by the new FCC requirements could force the government to re-think them.

Technically, comments should address the need for the information to be collected, the accuracy of the Commission's estimate of the burden of the collection, ways to improve the information collection requirement, and ways to reduce the burden on respondents.  Any comments are due to be filed by May 12, 2008.

It seems to us that the Commission has grossly underestimated the burdens imposed by the new rules and overestimated the utility of the information to be collected and/or posted.  For example, the FCC's estimate of the time which would be required to complete Form 355 is rather fuzzy and shows significant costs to each station, costs which will be repeated quarterly - a fact which the FCC does not readily admit.  According to the Commission, filling out the form may take anywhere from 2.5 to 52 hours, a rather broad range to say the least.  The Commission has not explained how this new requirement will generate any more interest from the public, or otherwise promote the Commission's localism goals, any better than similar requirements in the past have done.  Taking the Commission's own estimate, the imposition of a new filing that could require more than a work week's time to complete should require some justification - and that's EVERY QUARTER!

If there are multiple comments from affected parties (i.e., television licensees) pointing out these flaws, the FCC might be forced to come up with some justification for its rules and to explain how the new burdens comport with the Paperwork Reduction Act.  The entertainment value alone of watching the FCC make this effort could be substantial, and a serious inquiry could even force some re-thinking.

For those inclined to try to get the FCC to reconsider outside of the OMB process, the March 13 Federal Register publication also establishes the deadline for filing petitions for reconsideration, and that deadline is now April 14, 2008.

 

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