[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 1784 Introduced in Senate (IS)]

112th CONGRESS
  1st Session
                                S. 1784

    To amend the Communications Act of 1934 to provide for greater 
 transparency and efficiency in the procedures followed by the Federal 
                       Communications Commission.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            November 2, 2011

  Mr. Heller introduced the following bill; which was read twice and 
   referred to the Committee on Commerce, Science, and Transportation

_______________________________________________________________________

                                 A BILL


 
    To amend the Communications Act of 1934 to provide for greater 
 transparency and efficiency in the procedures followed by the Federal 
                       Communications Commission.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Federal Communications Commission 
Process Reform Act of 2011''.

SEC. 2. FCC PROCESS REFORM.

    (a) In General.--Title I of the Communications Act of 1934 (47 
U.S.C. 151 et seq.) is amended by adding at the end the following new 
section:

``SEC. 13. TRANSPARENCY AND EFFICIENCY.

    ``(a) Rulemaking Requirements.--
            ``(1) Requirements for notices of proposed rulemaking.--The 
        Commission may not issue a notice of proposed rulemaking unless 
        the Commission provides for a period of not less than 30 days 
        for the submission of comments and an additional period of not 
        less than 30 days for the submission of reply comments on such 
        notice and the Commission includes in such notice the 
        following:
                    ``(A) Either--
                            ``(i) an identification of--
                                    ``(I) a notice of inquiry, a prior 
                                notice of proposed rulemaking, or a 
                                notice on a petition for rulemaking 
                                issued by the Commission during the 3-
                                year period preceding the issuance of 
                                the notice of proposed rulemaking 
                                concerned and of which such notice is a 
                                logical outgrowth; or
                                    ``(II) an order of a court 
                                reviewing action by the Commission or 
                                otherwise directing the Commission to 
                                act that was issued by the court during 
                                the 3-year period preceding the 
                                issuance of the notice of proposed 
                                rulemaking concerned and in response to 
                                which such notice is being issued; or
                            ``(ii) a finding (together with a brief 
                        statement of reasons therefor)--
                                    ``(I) that the proposed rule or the 
                                proposed amendment of an existing rule 
                                will not impose additional burdens on 
                                industry or consumers; or
                                    ``(II) for good cause, that a 
                                notice of inquiry is impracticable, 
                                unnecessary, or contrary to the public 
                                interest.
                    ``(B) The specific language of the proposed rule or 
                the proposed amendment of an existing rule.
                    ``(C) In the case of a proposal to create a program 
                activity, proposed performance measures for evaluating 
                the effectiveness of the program activity.
                    ``(D) In the case of a proposal to substantially 
                change a program activity--
                            ``(i) proposed performance measures for 
                        evaluating the effectiveness of the program 
                        activity as proposed to be changed; or
                            ``(ii) a proposed finding that existing 
                        performance measures will effectively evaluate 
                        the program activity as proposed to be changed.
            ``(2) Requirements for rules.--Except as provided in the 
        3rd sentence of section 553(b) of title 5, United States Code, 
        the Commission may not adopt or amend a rule unless--
                    ``(A) the specific language of the adopted rule or 
                the amendment of an existing rule is a logical 
                outgrowth of the specific language of a proposed rule 
                or a proposed amendment of an existing rule included in 
                a notice of proposed rulemaking, as described in 
                subparagraph (B) of paragraph (1);
                    ``(B) such notice of proposed rulemaking--
                            ``(i) was issued in compliance with such 
                        paragraph and during the 3-year period 
                        preceding the adoption of the rule or the 
                        amendment of an existing rule; and
                            ``(ii) is identified in the order making 
                        the adoption or amendment;
                    ``(C) in the case of the adoption of a rule or the 
                amendment of an existing rule that may have an 
                economically significant impact, the order contains--
                            ``(i) an identification and analysis of the 
                        specific market failure, actual consumer harm, 
                        burden of existing regulation, or failure of 
                        public institutions that warrants the adoption 
                        or amendment; and
                            ``(ii) a reasoned determination that the 
                        benefits of the adopted rule or the amendment 
                        of an existing rule justify its costs 
                        (recognizing that some benefits and costs are 
                        difficult to quantify), taking into account 
                        alternative forms of regulation and the need to 
                        tailor regulation to impose the least burden on 
                        society, consistent with obtaining regulatory 
                        objectives;
                    ``(D) in the case of the adoption of a rule or the 
                amendment of an existing rule that creates a program 
                activity, the order contains performance measures for 
                evaluating the effectiveness of the program activity; 
                and
                    ``(E) in the case of the adoption of a rule or the 
                amendment of an existing rule that substantially 
                changes a program activity, the order contains--
                            ``(i) performance measures for evaluating 
                        the effectiveness of the program activity as 
                        changed; or
                            ``(ii) a finding that existing performance 
                        measures will effectively evaluate the program 
                        activity as changed.
            ``(3) Data for performance measures.--The Commission shall 
        develop a performance measure or proposed performance measure 
        required by this subsection to rely, where possible, on data 
        already collected by the Commission.
    ``(b) Adequate Deliberation by Commissioners.--The Commission shall 
by rule establish procedures for--
            ``(1) informing all Commissioners of the options available 
        to the Commission for resolving a petition, complaint, 
        application, rulemaking, or other proceeding;
            ``(2) ensuring that all Commissioners have adequate time, 
        prior to being required to decide a petition, complaint, 
        application, rulemaking, or other proceeding (including at a 
        meeting held pursuant to section 5(d)), to review the proposed 
        Commission decision document, including the specific language 
        of any proposed rule or any proposed amendment of an existing 
        rule; and
            ``(3) publishing the text of agenda items to be voted on at 
        an open meeting in advance of such meeting so that the public 
        has the opportunity to read the text before a vote is taken.
    ``(c) Nonpublic Collaborative Discussions.--
            ``(1) In general.--Notwithstanding section 552b of title 5, 
        United States Code, a bipartisan majority of Commissioners may 
        hold a meeting that is closed to the public to discuss official 
        business if--
                    ``(A) a vote or any other agency action is not 
                taken at such meeting;
                    ``(B) each person present at such meeting is a 
                Commissioner, an employee of the Commission, a member 
                of a joint board established under section 410, or a 
                person on the staff of such a joint board; and
                    ``(C) an attorney from the Office of General 
                Counsel of the Commission is present at such meeting.
            ``(2) Disclosure of nonpublic collaborative discussions.--
        Not later than 2 business days after the conclusion of a 
        meeting held under paragraph (1), the Commission shall publish 
        a disclosure of such meeting, including--
                    ``(A) a list of the persons who attended such 
                meeting; and
                    ``(B) a summary of the matters discussed at such 
                meeting, except for such matters as the Commission 
                determines may be withheld under section 552b(c) of 
                title 5, United States Code.
            ``(3) Preservation of open meetings requirements for agency 
        action.--Nothing in this subsection shall limit the 
        applicability of section 552b of title 5, United States Code, 
        with respect to a meeting of Commissioners other than that 
        described in paragraph (1).
    ``(d) Initiation of Items by Bipartisan Majority.--The Commission 
shall by rule establish procedures for allowing a bipartisan majority 
of Commissioners to--
            ``(1) direct Commission staff to draft an order, decision, 
        report, or action for review by the Commission;
            ``(2) require Commission approval of an order, decision, 
        report, or action with respect to a function of the Commission 
        delegated under section 5(c)(1); and
            ``(3) place an order, decision, report, or action on the 
        agenda of an open meeting.
    ``(e) Public Review of Certain Reports and Ex Parte 
Communications.--
            ``(1) In general.--Except as provided in paragraph (2), the 
        Commission may not rely, in any order, decision, report, or 
        action, on--
                    ``(A) a statistical report or report to Congress, 
                unless the Commission has published and made such 
                report available for comment for not less than a 30-day 
                period prior to the adoption of such order, decision, 
                report, or action; or
                    ``(B) an ex parte communication or any filing with 
                the Commission, unless the public has been afforded 
                adequate notice of and opportunity to respond to such 
                communication or filing, in accordance with procedures 
                to be established by the Commission by rule.
            ``(2) Exception.--Paragraph (1) does not apply when the 
        Commission for good cause finds (and incorporates the finding 
        and a brief statement of reasons therefor in the order, 
        decision, report, or action) that publication or availability 
        of a report under subparagraph (A) of such paragraph or notice 
        of and opportunity to respond to an ex parte communication 
        under subparagraph (B) of such paragraph are impracticable, 
        unnecessary, or contrary to the public interest.
    ``(f) Publication of Status of Certain Proceedings and Items.--The 
Commission shall by rule establish procedures for publishing the status 
of all open rulemaking proceedings and all proposed orders, decisions, 
reports, or actions on circulation for review by the Commissioners, 
including which Commissioners have not cast a vote on an order, 
decision, report, or action that has been on circulation for more than 
60 days.
    ``(g) Deadlines for Action.--The Commission shall by rule establish 
deadlines for any Commission order, decision, report, or action for 
each of the various categories of petitions, applications, complaints, 
and other filings seeking Commission action, including filings seeking 
action through authority delegated under section 5(c)(1).
    ``(h) Prompt Release of Certain Reports and Decision Documents.--
            ``(1) Statistical reports and reports to congress.--
                    ``(A) Release schedule.--Not later than January 
                15th of each year, the Commission shall identify, 
                catalog, and publish an anticipated release schedule 
                for all statistical reports and reports to Congress 
                that are regularly or intermittently released by the 
                Commission and will be released during such year.
                    ``(B) Publication deadlines.--The Commission shall 
                publish each report identified in a schedule published 
                under subparagraph (A) not later than the date 
                indicated in such schedule for the anticipated release 
                of such report.
            ``(2) Decision documents.--The Commission shall publish 
        each order, decision, report, or action not later than 7 days 
        after the date of the adoption of such order, decision, report, 
        or action.
            ``(3) Effect if deadlines not met.--
                    ``(A) Notification of congress.--If the Commission 
                fails to publish an order, decision, report, or action 
                by a deadline described in paragraph (1)(B) or (2), the 
                Commission shall, not later than 7 days after such 
                deadline and every 14 days thereafter until the 
                publication of the order, decision, report, or action, 
                notify by letter the chairpersons and ranking members 
                of the Committee on Energy and Commerce of the House of 
                Representatives and the Committee on Commerce, Science, 
                and Transportation of the Senate. Such letter shall 
                identify such order, decision, report, or action, 
                specify the deadline, and describe the reason for the 
                delay. The Commission shall publish such letter.
                    ``(B) No impact on effectiveness.--The failure of 
                the Commission to publish an order, decision, report, 
                or action by a deadline described in paragraph (1)(B) 
                or (2) shall not render such order, decision, report, 
                or action ineffective when published.
    ``(i) Biannual Scorecard Reports.--
            ``(1) In general.--For the 6-month period beginning on 
        January 1st of each year and the 6-month period beginning on 
        July 1st of each year, the Commission shall prepare a report on 
        the performance of the Commission in conducting its proceedings 
        and meeting the deadlines established under subsections (g), 
        (h)(1)(B), and (h)(2).
            ``(2) Contents.--Each report required by paragraph (1) 
        shall contain detailed statistics on such performance, 
        including, with respect to each Bureau of the Commission--
                    ``(A) in the case of performance in meeting the 
                deadlines established under subsection (g), with 
                respect to each category established under such 
                subsection--
                            ``(i) the number of petitions, 
                        applications, complaints, and other filings 
                        seeking Commission action that were pending on 
                        the last day of the period covered by such 
                        report;
                            ``(ii) the number of filings described in 
                        clause (i) that were not resolved by the 
                        deadlines established under such subsection and 
                        the average length of time such filings have 
                        been pending; and
                            ``(iii) for petitions, applications, 
                        complaints, and other filings seeking 
                        Commission action that were resolved during 
                        such period, the average time between 
                        initiation and resolution and the percentage 
                        resolved by the deadlines established under 
                        such subsection;
                    ``(B) in the case of proceedings before an 
                administrative law judge--
                            ``(i) the number of such proceedings 
                        completed during such period; and
                            ``(ii) the number of such proceedings 
                        pending on the last day of such period; and
                    ``(C) the number of independent studies or analyses 
                published by the Commission during such period.
            ``(3) Publication and submission.--The Commission shall 
        publish and submit to the Committee on Energy and Commerce of 
        the House of Representatives and the Committee on Commerce, 
        Science, and Transportation of the Senate each report required 
        by paragraph (1) not later than the date that is 30 days after 
        the last day of the period covered by such report.
    ``(j) Transaction Review Standards.--
            ``(1) In general.--The Commission shall condition its 
        approval of a transfer of lines, a transfer of licenses, or any 
        other transaction under section 214, 309, or 310 or any other 
        provision of this Act only if--
                    ``(A) the imposed condition is narrowly tailored to 
                remedy a harm that arises as a direct result of the 
                specific transfer or specific transaction that this Act 
                empowers the Commission to review; and
                    ``(B) the Commission could impose a similar 
                requirement under the authority of a specific provision 
                of law other than a provision empowering the Commission 
                to review a transfer of lines, a transfer of licenses, 
                or other transaction.
            ``(2) Exclusions.--In reviewing a transfer of lines, a 
        transfer of licenses, or any other transaction under section 
        214, 309, or 310 or any other provision of this Act, the 
        Commission may not consider a voluntary commitment of a party 
        to such transfer or transaction unless the Commission could 
        adopt that voluntary commitment as a condition under paragraph 
        (1).
    ``(k) Form of Publication.--
            ``(1) In general.--In complying with a requirement of this 
        section to publish a document, the Commission shall publish 
        such document on its website, in addition to publishing such 
        document in any other form that the Commission is required to 
        use or is permitted to and chooses to use.
            ``(2) Exception.--The Commission shall by rule establish 
        procedures for redacting documents required to be published by 
        this section so that the published versions of such documents 
        do not contain--
                    ``(A) information the publication of which would be 
                detrimental to national security, homeland security, 
                law enforcement, or public safety; or
                    ``(B) information that is proprietary or 
                confidential.
    ``(l) Definitions.--In this section:
            ``(1) Amendment.--The term `amendment' includes, when used 
        with respect to an existing rule, the deletion of such rule.
            ``(2) Bipartisan majority.--The term `bipartisan majority' 
        means, when used with respect to a group of Commissioners, that 
        such group--
                    ``(A) is a group of 3 or more Commissioners; and
                    ``(B) includes, for each political party of which 
                any Commissioner is a member, at least 1 Commissioner 
                who is a member of such political party, and, if any 
                Commissioner has no political party affiliation, at 
                least one unaffiliated Commissioner.
            ``(3) Economically significant impact.--The term 
        `economically significant impact' means an effect on the 
        economy of $100,000,000 or more annually or a material adverse 
        effect on the economy, a sector of the economy, productivity, 
        competition, jobs, the environment, public health or safety, or 
        State, local, or tribal governments or communities.
            ``(4) Performance measure.--The term `performance measure' 
        means an objective and quantifiable outcome measure or output 
        measure (as such terms are defined in section 1115 of title 31, 
        United States Code).
            ``(5) Program activity.--The term `program activity' has 
        the meaning given such term in section 1115 of title 31, United 
        States Code, except that such term also includes any annual 
        collection or distribution or related series of collections or 
        distributions by the Commission of an amount that is greater 
        than or equal to $100,000,000.
            ``(6) Other definitions.--The terms `agency action', `ex 
        parte communication', and `rule' have the meanings given such 
        terms in section 551 of title 5, United States Code.''.
    (b) Effective Date and Implementing Rules.--
            (1) Effective date.--
                    (A) In general.--The requirements of section 13 of 
                the Communications Act of 1934, as added by subsection 
                (a), shall apply beginning on the date that is 6 months 
                after the date of the enactment of this Act.
                    (B) Prior notices of proposed rulemaking.--If the 
                Commission identifies under paragraph (2)(B)(ii) of 
                subsection (a) of such section 13 a notice of proposed 
                rulemaking issued prior to the date of the enactment of 
                this Act--
                            (i) such notice shall be deemed to have 
                        complied with paragraph (1) of such subsection; 
                        and
                            (ii) if such notice did not contain the 
                        specific language of a proposed rule or a 
                        proposed amendment of an existing rule, 
                        paragraph (2)(A) of such subsection shall be 
                        satisfied if the adopted rule or the amendment 
                        of an existing rule is a logical outgrowth of 
                        such notice.
                    (C) Schedules and reports.--Notwithstanding 
                subparagraph (A), subsections (h)(1) and (i) of such 
                section shall apply with respect to 2013 and any year 
                thereafter.
            (2) Rules.--The Federal Communications Commission shall 
        promulgate the rules necessary to carry out such section not 
        later than 1 year after the date of the enactment of this Act.
            (3) Procedures for adopting rules.--Notwithstanding 
        paragraph (1)(A), in promulgating rules to carry out such 
        section, the Federal Communications Commission shall comply 
        with the requirements of subsections (a) and (h)(2) of such 
        section.

SEC. 3. EFFECT ON OTHER LAWS.

    Nothing in this Act or the amendment made by this Act shall relieve 
the Federal Communications Commission from any obligations under title 
5, United States Code, except where otherwise expressly provided.
                                 <all>