Critics say FCC reform bill may hinder agency

Despite apparent consensus among stakeholders that some changes are needed in how the Federal Communications Commission functions, members of a House panel disagreed on Wednesday over how far a draft bill should go -- particularly over whether the agency should be required to show that proposed rules would fix problems in the marketplace.

The House Energy and Commerce Communications Subcommittee debated draft legislation released by its chairman, Rep. Greg Walden, R-Ore., aimed at speeding up the time the FCC takes to issue new regulations and limiting when it can act. However, some critics said the proposed changes may actually further bog down the agency's ability to do its job more effectively.

Legislation overhauling the FCC's rules and procedures could affect a wide swath of stakeholders, from telecom companies that must follow the rules set by the agency to the consumers who are those firms' customers.

Walden noted some of the steps that FCC Chairman Julius Genachowski has taken to improve transparency, such as publishing the text of rules and eliminating unnecessary regulations. "But all of this is discretionary," Walden said. "It's not asking too much to have the FCC actually codify a set of best practices and operate by them."

Democrats on the panel said they have strong concerns with several key provisions of the bill, which could hinder Walden's efforts to move it forward on a bipartisan basis.

They include a requirement that the FCC identify whatever market failure its proposed rules are aimed at addressing. Another provision would have the FCC conduct a cost-benefit analysis on regulations that might impose a burden on consumers or industry, but some Democrats said it would be costly and time-consuming to undertake on a regular basis and should only be used for major proceedings.

Some Democrats, along with Mark Cooper of the Consumer Federation of America, also voiced concern about language that they say would effectively delete the FCC's current requirement that it approve mergers only if it finds they are in the public interest. The draft would bar the commission from imposing conditions on a merger unless it would remedy a specific harm.

"I am concerned that we are making procedural changes in an attempt to address outcomes with which we don't agree," said Energy and Commerce ranking member Henry Waxman, D-Calif., who indicated that he could not back the measure in its current form. Waxman noted that the draft bill's proposed changes to merger reviews appear aimed at addressing concerns that some Republicans had with the conditions imposed on Comcast's acquisition of NBC Universal and other previous merger approvals.

The draft did include some reforms that won praise from both sides of the aisle, such as provisions requiring the agency to release the text of rules it is voting on and allowing three or more FCC commissioners to meet without having to call an official public meeting.

Former FCC Commissioner Kathleen Abernathy, now executive vice president and chief legal officer for Frontier Communications, said current rules barring commissioners from meeting privately have the "perverse" effect of hindering collaboration and cooperation.

Walden said at the hearing that he is willing to make some changes to the draft bill but did not indicate how far he would go to address the concerns raised. A subcommittee spokeswoman said the panel is not anticipating holding another hearing on the draft measure but noted that the chairman is not ruling it out at this point. She said a decision on how to proceed next will be made based on the feedback on the draft bill from the hearing.