Partisan 'Breakdown' Shakes House Markup of FCC Process Bills

Eshoo offered an amendment, which failed along party lines, to ensure that tweaks to the sunshine rules to allow FCC commissioners to meet together more easily would receive speedy implementation. Those tweaks were part of the FCC Process Reform Act she sponsored with Walden and Rep. Adam Kinzinger, R-Ill., based on her FCC Collaboration Act. “During last week’s legislative hearing, the consensus of all our witnesses was that it makes sense to simultaneously implement the FCC Collaboration Act with the other reforms included in the underlying bill,” Eshoo said. She said she didn’t understand “what this one-year delay is about” in the draft’s current language.

“I’m a little perplexed about the amendment” due to the negotiations last Congress, which included a one-year delay, Walden told Eshoo. “In exchange for that, we agreed to take out the cost-benefit analysis.” Walden said this agreement lasted until Monday. "I raised the same issue last year, Mr. Chairman,” Eshoo said. “I objected to the delay in the last go-around as well.” Walden said that’s not his recollection or that of his staffers. “Let’s not pose for holy cards,” Eshoo said. “I’m sorry this has become contentious,” Rep. John Shimkus, R-Ill., said, citing his partnership with Eshoo on the sunshine provisions. “I’m just caught in a Catch-22 here, and I feel bad about that.” Walden dismissed the back and forth as “a breakdown” and said he’s standing by the commitment made in negotiation. The FCC Process Reform Act advanced despite the friction.

“Moving forward, we’ll go to full committee,” Walden told reporters of the FCC Process Reform Act after the markup. “The most disappointing thing for me today is we have acted in a bipartisan way, we’ve moved, what, three Democratic bills. The bill we moved unanimously last year now suddenly isn’t sufficient, needs to be amended? I mean, really? That one was sort of out of left field.”

Earlier in the markup, Walden took up the Democratic proposals with little opposition. The subcommittee approved by voice vote the draft measure from Rep. Doris Matsui, D-Calif., that would make the FCC coordinate with the Small Business Administration; the draft proposal from Rep. David Loebsack, D-Iowa, that would make the FCC chairman publicize internal processes of the agency online and notify the public of any shifts; and a draft measure from Rep. Yvette Clarke, D-N.Y., to compel the FCC to give quarterly reports to Congress and for posting online about decisions still pending and types of requests made and pending. Rep. Chris Collins, R-N.Y., succeeded at attaching an amendment to Clarke’s measure to compel the U.S. comptroller general to “audit the cost estimates provided by the Commission” with a frequency of not less than every six months, as its text said. Collins said he’s “concerned” about the accuracy of FCC figures, “particularly with respect to its auction budget.” Eshoo wondered what the audits would cost. Walden said he believes the costs come from the GAO budget rather than that of the FCC. It was approved by voice vote. Loebsack said the issue of FCC process overhaul “need not be” partisan.

The three GOP proposals caused intense partisan disagreement. They may cause “unnecessary litigation,” said House Commerce Committee ranking member Frank Pallone, D-N.J., calling the bills “a step backward” from where Congress was last year in the FCC Process Reform Act. “Enhanced transparency should not come at the expense of regulatory certainty or potential legal challenges on every commission action,” Eshoo said of her opposition to the GOP proposals. Those drafts would mean “more sand in the gears to stop the gears,” she said. FCC Chairman Tom Wheeler and several public interest groups have opposed those measures.

Lawmakers approved 16-12, along party lines, the proposal from subcommittee Vice Chairman Bob Latta, R-Ohio, that would force the FCC to post the items considered on delegated authority. In an information age, it’s vital to have “instant access,” Latta said. Eshoo disputed its merits. “This sounds like it’s non-menacing,” Eshoo said. But she pointed to the recent testimony from Wheeler about the vast number of items considered on delegated authority and said this is a specific example of the “sand in the gears rather than greasing the gears,” repeating that the FCC releases hundreds of thousands of such items a year. She accused it of “having the opposite effect of what we’re all trying to achieve.” Walden disagreed, saying the FCC makes all the decisions public. “It’s not going to change their workload,” Walden said. “It may change their timing. … It’s sunshine!” Walden countered that the number of decisions decided on delegated authority is far lower than Eshoo said. Rep. Peter Welch, D-Vt., cautioned against the creation of “excessive process.”

Another party-line vote of 17-13 decided the approval of a draft measure from Rep. Renee Ellmers, R-N.C., that would make the FCC post new rules within 24 hours of their adoption. Lawmakers approved along a party-line voice vote a draft bill from Kinzinger to force the FCC to post the drafts of any items when circulated to commissioners. Walden inserted an amendment, also approved along a party-line voice vote, to make small language changes, nixing “the Commission publishes” and including the phrase “the Chairman causes the Commission to publish” and the use of the phrase “good faith.” The language “would not trigger a new round of comments,” Walden contended, citing deliberations with administrative lawyers. Kinzinger said the proposal wouldn't prevent commissioners from editing the item after the circulation. “I appreciate your amendment, but it still doesn’t address my concern with the underlying bill,” Eshoo told Walden. “Where does this bring about healthy reform?” She still worries the bill could cause an endless cycle of lobbying on draft items. “This is the worst one,” Eshoo said of Kinzinger’s proposal. Walden called it “laughable” that the proposal comes from GOP interest in net neutrality, prompting disagreement from Eshoo.

“We hope to reconcile these very good draft bills with the more extensive process reform bill that both the ranking member and I supported last Congress,” Walden said. “This bill would put more structure around rulemakings and rein in the delays -- good government policies that the bill requires the FCC to structure for itself.”

Pallone and Rep. John Yarmuth, D-Ky., singled out the absence of the Keeping Our Campaigns Honest Act (HR-2125) and backed an amendment, which failed again on a party-line vote, to include the legislation as part of the FCC Process Reform Act. The bill would compel the FCC to use its broadcast disclosure rules to better identify the funding source for political ads. Walden told us earlier this week that the legislation, the source of rising Capitol Hill pressure from Democrats ahead of the 2016 elections, doesn't belong among these other measures (see 1505190044). Rep. Mike Pompeo, R-Kan., dismissed the effort as not serious and a “thinly veiled” move to overturn First Amendment freedoms. Eshoo insisted the amendment “is germane to FCC reform.” Walden, talking to reporters, criticized the bill as “fraught with some problems” and “some constitutional issues, because you’ve got the FCC deciding what’s a controversial issue or not.” He questioned what a “significant” contributor would be and wondered at the scale of what this affects. “There are other committees of jurisdiction” for campaign finance reform, he said.

The real problem is “the FCC’s increasingly unconstrained discretion,” TechFreedom President Berin Szoka and International Center for Law & Economics Executive Director Geoffrey Manne told the lawmakers in a Wednesday letter. “ We urge Congress to require the FCC to undertake the same cost-benefit analysis currently required for proposed regulations promulgated by Executive Branch agencies subject to Executive Orders 12044, 12291, and 12866,” they said. “Increasingly, the greatest process problem at the FCC is not a defect of the traditional rulemaking process, but rather the agency’s ability to circumvent notice-and-comment rulemaking altogether.”