Lifeline Reporting Burdens May Prompt More Telcos to Seek OMB Override of FCC
New carrier obligations in the Lifeline order show that the FCC has “not taken seriously” its Paperwork Reduction Act (PRA) obligations, lawyers for General Communication Inc. wrote the Office of Management and Budget (http://xrl.us/bmzhgs). The FCC told OMB the new regulations will increase the annual time burden from 60,000 hours to over 1.5 million, excluding the commission’s new estimate of 22 million hours to account for an increase in the estimated number of Lifeline subscribers (http://xrl.us/bmzi68). Chris Nierman, director-federal regulatory affairs at GCI, said that others feel similarly to the telco and are likely filing their own comments.
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
The FCC imposed “extraordinary information collection burdens” on telcos, yet failed to justify them, GCI said. “The unnecessary burdens at issue here will only add to the already complex and onerous Lifeline program,” it said. “While the emergency-approval process the FCC has invoked here precludes a searching PRA analysis of its proposals, OMB should pause to consider the overall Lifeline paperwork context.” The deadline to submit comments to the OMB is April 5. GCI filed early because the FCC requested “emergency” approval by March 30 (http://xrl.us/bmzifu) because the order takes effect April 1 and “sets a budget target to eliminate $200 million in waste in 2012, which is dependent on certain rules going into effect as soon as possible.” Because there’s no obligation to put PRA comments in the public docket, “it’s possible that others have filed or will file, and we won’t hear about it,” Nierman told us.
GCI took issue with three specific paperwork requirements: Eligible telecom carriers must every 90 days re-verify subscribers who listed temporary addresses on their Lifeline forms and continue to rely on that address; ETCs receiving larger Lifeline reimbursements must submit biennial third-party audits and their own audit reports; and ETCs must make lengthy disclosures in all marketing materials related to Lifeline-supported services. Some of these requirements are “expensive overkill,” GCI said, urging the OMB to undertake a “more searching review of the entire set of Lifeline paperwork burdens” to “identify and disapprove all of the information collections on which the Commission has failed to carry its burden under the PRA."
"GCI makes some very good points,” President Genny Morelli of the Independent Telephone and Telecommunications Alliance said by email. “The paperwork requirements GCI is challenging will place significant resource burdens on ETCs that the Commission does not appear to have fully considered in its PRA analysis. ITTA agrees with GCI that OMB should reject the Commission’s analysis and require the agency to more accurately and meaningfully justify the requirements before they are permitted to take effect."
The FCC’s justification for emergency OMB OK isn’t good enough for GCI. “The Supporting Statement begins with the heading ‘Justification,’ yet what follows is not a ‘justification’ at all,” GCI said, arguing the FCC merely recited the history of the low-income program and previous orders leading up to the Lifeline order. “Such a recitation is not a justification -- nowhere does the Commission attempt to explain the ‘practical utility’ of ... each of the specific burdens imposed by the new Lifeline Order,” GCI said. The company estimated the new requirements will impose a total cost of over $550 million per year in paperwork alone.
OMB’s Office of Information and Regulatory Affairs (OIRA) only reviews FCC rulemakings when there’s new information collection involved. The statutory standard is whether the practical utility justifies the burden, said Prof. Stuart Shapiro of Rutgers University. “Those are obviously not precise terms,” he said, and it involves “making a judgment call.” With 30 years of history making those judgment calls, OIRA officials “get a certain expertise, or at least a certain expectation and consistency over time,” but it’s still a subjective standard, said Shapiro, who teaches about the economics of government policies. In his estimate, OIRA has rejected less than 1 percent of all the regulations it’s reviewed, and rejections based on the PRA make up far fewer than that.
The PRA includes a special provision for independent regulatory agencies, letting the agency override an OIRA rejection by a majority vote, noted American University Prof. Jeffrey Lubbers, who teaches about administrative law. In the case of the current FCC, that would require a 2-1 vote of commissioners. The Lifeline order passed unanimously. “OIRA may not reject it simply to avoid putting the commission in that situation” of having to override the OMB, Shapiro said.