House Advances FCC Process Reform Act With GOP Amendments Dropped

The Rules Committee posted the latest 21-page text of the measure Thursday, dated Oct. 15. The bill’s authors were listed as Communications Subcommittee Chairman Greg Walden, R-Ore., and Rep. Adam Kinzinger, R-Ill., two of the three original bill authors at the beginning of the year. Republicans ended their plans to include the three GOP amendments to help secure bipartisan support with the overall goal of building off past successes in advancing the measure and to get the legislation eventually signed into law, a GOP committee aide told us Monday. Those GOP amendments still are priorities for Republican members, the aide said. The Process Reform Act passed by voice vote in the House last Congress.

“Today marks the third time in four years that a variation of the FCC Process Reform Act has come to the floor for a vote,” Walden said on the House floor, stressing his devotion to overhauling agency process. “We aren’t looking to hamstring the agency -- we simply are providing them with goals and allowing them to determine the best way to achieve them.” He didn’t address the removal of the GOP amendments in his statement prepared for the floor.

Communications Subcommittee ranking member Anna Eshoo, D-Calif., now backs passage of the measure, a Democratic aide told us Friday. She had originally partnered with Walden and Kinzinger in co-sponsoring the bill but retracted her support once it became clear Republicans would hitch the three controversial amendments to the base FCC Process Reform Act text (see 1506020057). The aide said the legislation still has the one-year delay on implementation of changes to the sunshine rules overhaul, which would make it easier for FCC commissioners to communicate privately. Eshoo had proposed an amendment earlier this year to remove the one-year delay, which Walden slammed as a violation of a previously negotiated deal between Republicans and Democrats. Another Democratic House staffer agreed Monday that the latest version of the legislation is now uncontroversial given the drop of the Republican amendments and inclusion of the Democratic proposals.

The Democratic proposals “would modernize and enhance transparency at the FCC without jeopardizing regulatory certainty or opening the Commission to legal challenges on every agency action,” Eshoo said on the House floor Monday, announcing her support. “I'm also pleased that the bill incorporates the FCC Collaboration Act of 2015, a bipartisan bill I introduced earlier this year with Representatives [John] Shimkus, [R-Ill.],and [Mike] Doyle, [D-Pa.]. For years, current and former FCC Commissioners have called on Congress to pass 'sunshine reform,' so that three or more Commissioners can hold non-public collaborative discussions, as long as no agency action is taken. While I remain disappointed that this provision will not take effect immediately upon enactment, I’ve concluded that any further delay in implementation is the unnecessary delay of a much needed reform.”

The Commerce Committee posted a fact sheet Sunday outlining changes to the legislation, calling the bill “bipartisan” despite Eshoo’s earlier withdrawal of support. “The first of two required FCC proceedings is a rulemaking to seek comment and adopt rules that: Set minimum comment periods for rulemaking proceedings; Allow time for public comment by eliminating the practice of placing large amounts of information into the record on the last day of the public comment period; Increase public transparency of items before the commissioners; Require publication of the text of proposed rules; and, Set timelines for FCC action on certain types of proceedings,” the document said. “The bill would also require the FCC to conduct a second proceeding -- an inquiry into reform of more complex issues, such as commission review and voting procedures and whether it is feasible to publish final text of items to be adopted before the commission votes on them.” Republican staffers circulated these bullet points among industry lobbyists starting Friday evening.

Some of these “more complex issues” were the subject of the GOP amendments earlier in the year that are no longer a part of the bill. One proposal would have required the FCC to publish the text of an item upon its circulation.

The latest measure temporarily waives the Antideficiency Act for the USF until the end of 2020 and compels agency work on a consumer complaint database. The USF "has been subject to sequential waivers since its creation, which have routinely been granted," the Commerce fact sheet said. "This waiver makes the process more efficient." The only unanimously supported action during the Commerce Committee’s markup was the bill’s inclusion of the three Democratic proposals, which remain a part of the legislation. The proposals would require an FCC report on how it can engage small businesses in proceedings, the posting of a quarterly commission progress report, and posting of internal agency policies set by FCC chairs.

FCC staffers are “actively working” and making “significant progress” on internal agency efforts to improve processes, Chairman Tom Wheeler plans to testify before the Communications Subcommittee Tuesday. “Our reforms are making tangible, impactful progress that will improve our decision-making process. Working together with my fellow Commissioners, Congress, and other stakeholders, I know that we can make further improvements to the agency’s operations.”

Commissioner Mike O’Rielly plans to discuss what he considers process shortfalls: “My efforts to inspire some badly needed process reforms at the Commission have unfortunately not been fulfilled yet, but this is a crucially important topic that cannot be stressed enough,” O’Rielly will testify. House Republicans will slam purported progress, according to a staff memo for that hearing. An earlier update from Wheeler this month “does not contain any material to corroborate that any progress has, in fact, been made despite two years of FCC effort on this topic,” the memo said.

“I would prefer a bill with even stronger reform measures, such as requiring the Commission to perform a cost-benefit and competition analysis before adopting new rules and revising the agency's merger review process,” emailed Free State Foundation President Randolph May. But he said "the bill constitutes a positive step ... . It would be a shame if the Senate Democrats keep the bill from being enacted and sent to President [Barack] Obama for his signature.” May testified on FCC process multiple times over the years, including earlier this year.

Sen. Dean Heller, R-Nev., introduced companion legislation and supports addressing FCC process overhaul through the agency reauthorization process that Senate Commerce Committee Chairman John Thune, R-S.D., has sought all year (see 1509210052). Thune’s reauthorization effort was on hold as of mid-October due to Democratic resistance to negotiating on both that and net neutrality legislation simultaneously (see 1510130039).