Lawmakers Eye Eventual Return to FCC Process Overhaul

Congressional Republicans still want to pull together and move legislation to overhaul FCC process, although movement on Capitol Hill may not be imminent, lawmakers told us, given lack of Senate action in 2017. FCC reauthorization is seen as one legislative vehicle that could include tweaks to FCC process this Congress. FCC Chairman Ajit Pai has urged Capitol Hill to revise the Sunshine Act to allow commissioners to talk more easily to one another (see 1705310042), attracting bicameral and bipartisan support among lawmakers despite transparency advocate concerns. Commissioners Mike O’Rielly and Mignon Clyburn back the proposal.

“I’ve been on it for years -- every single commissioner, Republican, Democrat, Republican chairman, Democratic chairman, they’ve all supported it,” Rep. Anna Eshoo, D-Calif., former longtime ranking member of the House Communications Subcommittee, told us of the proposal. “Somehow, they don’t seem to be able to get it through. It’s still there, it’s still there. It’s up to the chairman to take it up. If it’s a priority, they’ll do it.”

House lawmakers included the sunshine provision in their reintroduced FCC Process Reform Act (HR-290), which that chamber cleared in January under suspension of the rules. No Senate effort is immediately forthcoming despite what key Senate Republicans said is ongoing interest. The lead Republican in the upper chamber still judges such legislation an eventual goal.

“We’re going to take a look at it,” said Sen. Dean Heller, R-Nev., author of past Senate companion versions of the FCC Process Reform Act, in an interview. “We’ll probably get something together.”

“It’s worth doing,” agreed Senate Commerce Committee Chairman John Thune, R-S.D. “My hope would be we’d be able to get back to both the process reforms and the [FCC] reauthorization. But specifically the reauthorization. We haven't reauthorized it since 1990. I think it’d be nice to incorporate some of the process reforms in the reauth.”

FCC process legislation typically proved more partisan in the Senate than in the House and in the past stalled there. Heller’s bill last Congress didn’t reflect the bipartisan compromise reached among House members. It included stricter provisions on cost-benefit analysis that caused Senate Democrats to balk. Thune initially sought to incorporate Heller's FCC Process Reform Act in his 2015 draft of the FCC Reauthorization Act. Democratic opposition led his staff to strip that bill of the process overhaul pieces and mark up both measures separately. The FCC reauthorization bill cleared committee with bipartisan support and stalled on the floor at the end of 2016 due to unrelated FCC nominations issues; the FCC Process bill faced Democratic opposition in committee and was never considered to have serious prospects on the Senate floor.

Sunshine Overhaul

A narrower bipartisan bill called the FCC Collaboration Act was introduced in past Congresses to make this change to sunshine rules. That measure hasn't been reintroduced in 2017. Sponsors in the House included Eshoo and Reps. John Shimkus, R-Ill., and Mike Doyle, D-Pa., current ranking Democrat on the Communications Subcommittee, and in the Senate, Heller and Sen. Amy Klobuchar, D-Minn.

Shimkus is “still supportive of ‘allowing for greater interaction among the commissioners to enable the FCC to more efficiently carry out its responsibilities and more effectively consider the costs and benefits of proposed regulations,’” his spokesman said Monday about a possible Collaboration Act reintroduction. “He does not have a strong preference as to what vehicle is used.”

Not all agree such FCC sunshine overhaul would be a boon.

“A solution in search of a true problem,” said Fletcher Heald attorney Kevin Goldberg, who advises the American Society of News Editors and the Association of Alternative Newsmedia. Advancing a proposal to overhaul the sunshine rules like this runs the “risk that you will completely take away transparency” and make the sunshine rules “irrelevant,” with such overhaul potentially extended over time to other agencies like the FTC, he argued. “Everyone thinks it’s a good idea in the moment.” The overhaul favors the majority and with no necessary benefit to cross-party collaboration, he said, doubting the proposal has any better prospect now. Goldberg suggested any current limitations on collaboration are no actual “hindrance” on commission matters and no sign government is “broken.”

“Agencies are likely to make better decisions when the decision-makers can discuss the issues among themselves,” countered Scott Harris, chairman of Harris Wiltshire. “One decision-maker may convince the other, or the decision-makers working together may find a compromise or even an entirely different approach. Because of the Sunshine Act, those discussions now take place through intermediaries and that makes both persuasion and compromise more difficult. ... No one objects to members of an appellate court or the justices of the Supreme Court getting together to discuss issues and decide a case."

No Senate Rush

Senators didn’t show any certainty on when they may revive elements of the FCC Process Reform Act or the particulars of what a legislative push would look like for this Congress.

“We’re kind of caught up in other things,” said Thune. “We’re going to try and get Mobile Now done, and of course we’ve got FAA [reauthorization] coming up. … I’m still very interested in the subject and I’m specifically interested in reauthorizing the agency. I think that needs to be done.”

“I don’t know what the timeline is,” Heller said. “But FCC reform is still on the top of my list.”

House Communications Subcommittee Chairman Marsha Blackburn, R-Tenn., told us she believes Heller and other lawmakers will “work off our” HR-290, the House’s FCC process reform compromise, given its strong support in the lower chamber. “It would be good for them to work off” HR-290, she said. “It’s a good format to work from and it addresses the issues.” The Senate “can say things a different way, but [HR-290] had bipartisan support and they would be well served” to follow that model, Blackburn said.

Thune and Heller lauded actions Pai took this year to address process. Pai made that a priority early in his chairmanship, making changes to protocol such as releasing texts of items upon their circulation weeks ahead of meetings. “It helps a little bit,” Thune said of the changes. “They’re doing some stuff already, I think, that is welcomed in terms of trying to, yeah, open the process up. I’m encouraged.” Heller also enthusiastically lauded Pai’s contributions: “Oh, that’ll be very helpful to have Pai there. Pai is helpful.”