Key Congressional figures signal interest in examining the way the FCC does business

Have any thoughts on how the FCC could operate better? Increasingly, a number of influential members of Congress seem to believe they do. Momentum continues to build on Capitol Hill for reform of the Federal Communications Commission with recent statements – and hints of action – from key members of the House Energy and Commerce Committee.

Speaking at the American Cable Association’s annual summit on April 13, House Communications Subcommittee Chairman Greg Walden suggested there would be a hearing and movement on legislation on FCC reform in the near future. Expectations are that the five FCC commissioners will be called to testify before the subcommittee within a few weeks of Congress’ return from recess.

Walden made a strong pitch for Congress to actively oversee the agency, stating: “Failure to do that only gives them license to do other things they don’t have the authority to do.” Walden, of course, introduced a House-passed resolution to invalidate, as an overreach of FCC authority, the Commission’s recent net neutrality rules.

Walden expressed his belief that both the Democrat and Republican FCC commissioners agree on the basic need to improve how the agency functions (see, e.g., “Copps, Commissioner, sunshine rules” and “Baker, Commissioner, merger review”) and that such reform can be done in a “positive and constructive way”.

And Walden is not alone in his interest in Commission process reform.

He and Communications Subcommittee Ranking Member Anna Eshoo have had discussions on this issue. And, of course, in March, Rep. Eshoo introduced H.R. 1009, the Federal Communications Commission Collaboration Act, to change the FCC’s sunshine rules to allow three or more commissioners to meet outside of their regular public meeting as long as both parties are represented and no agency action is taken.

Rep. Cliff Stearns, chairman of the Oversight Subcommittee of the House Energy and Commerce Committee, also has reform on his mind. At the April 12 Free State Foundation event “Regulatory Reform at the FCC: Why Not Now?”, Chairman Stearns made the case for a lighter regulatory touch by the Commission. He spoke about the increased convergence in the marketplace where technology outpaces regulations and where most any attempt to fit present day services into past rules “stifles innovation and simply creates uncertainty in the marketplace.”

Stearns cited the potential lack of both respect for and confidence in an agency that adopts orders after a comment period and issues press releases with a summary of orders but then waits weeks or months before releasing the order itself. He suggested the Commission should let the public see proposed rules before adoption and provide a realistic amount of time to comment.

Stearns went on to address the need for reform of the sunshine laws intended to create openness but which instead lead to an opaque process in which drafts simply are circulated to get around the public meeting requirement. Result: more secrecy, not less. He pointed to the Eshoo-proposed legislation to allow more than two commissioners to meet privately as a possible solution. Also, he spoke of the necessity of functional shot clocks to reduce regulatory uncertainty that can hinder investment and long-term business planning.

Will these possible procedural reforms be the only small bite Congress takes out of the FCC regulatory authority, or can we expect more, and more aggressive, consumption if Congress develops a taste for that particular delicacy? By defining its mission and purview broadly (as seems to be the case to many observers), does the FCC make itself a more tempting target for broader substantive reform?  With a forward-leaning FCC Chairman from one party and a House controlled by the other, can we expect more?

And if Congress does set its sights on bigger prey, what are the chances that it will sooner or later find itself (like the crew of the Orca) in need of a bigger boat?