[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]


 
                           FCC PROCESS REFORM

=======================================================================

                                HEARING

                               BEFORE THE

             SUBCOMMITTEE ON COMMUNICATIONS AND TECHNOLOGY

                                 OF THE

                    COMMITTEE ON ENERGY AND COMMERCE
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 13, 2011

                               __________

                           Serial No. 112-48



      Printed for the use of the Committee on Energy and Commerce

                        energycommerce.house.gov



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                    COMMITTEE ON ENERGY AND COMMERCE

                          FRED UPTON, Michigan
                                 Chairman

JOE BARTON, Texas                    HENRY A. WAXMAN, California
  Chairman Emeritus                    Ranking Member
CLIFF STEARNS, Florida               JOHN D. DINGELL, Michigan
ED WHITFIELD, Kentucky                 Chairman Emeritus
JOHN SHIMKUS, Illinois               EDWARD J. MARKEY, Massachusetts
JOSEPH R. PITTS, Pennsylvania        EDOLPHUS TOWNS, New York
MARY BONO MACK, California           FRANK PALLONE, Jr., New Jersey
GREG WALDEN, Oregon                  BOBBY L. RUSH, Illinois
LEE TERRY, Nebraska                  ANNA G. ESHOO, California
MIKE ROGERS, Michigan                ELIOT L. ENGEL, New York
SUE WILKINS MYRICK, North Carolina   GENE GREEN, Texas
  Vice Chair                         DIANA DeGETTE, Colorado
JOHN SULLIVAN, Oklahoma              LOIS CAPPS, California
TIM MURPHY, Pennsylvania             MICHAEL F. DOYLE, Pennsylvania
MICHAEL C. BURGESS, Texas            JANICE D. SCHAKOWSKY, Illinois
MARSHA BLACKBURN, Tennessee          CHARLES A. GONZALEZ, Texas
BRIAN P. BILBRAY, California         JAY INSLEE, Washington
CHARLES F. BASS, New Hampshire       TAMMY BALDWIN, Wisconsin
PHIL GINGREY, Georgia                MIKE ROSS, Arkansas
STEVE SCALISE, Louisiana             ANTHONY D. WEINER, New York
ROBERT E. LATTA, Ohio                JIM MATHESON, Utah
CATHY McMORRIS RODGERS, Washington   G.K. BUTTERFIELD, North Carolina
GREGG HARPER, Mississippi            JOHN BARROW, Georgia
LEONARD LANCE, New Jersey            DORIS O. MATSUI, California
BILL CASSIDY, Louisiana              DONNA M. CHRISTENSEN, Virgin 
BRETT GUTHRIE, Kentucky              Islands
PETE OLSON, Texas
DAVID B. McKINLEY, West Virginia
CORY GARDNER, Colorado
MIKE POMPEO, Kansas
ADAM KINZINGER, Illinois
H. MORGAN GRIFFITH, Virginia

                                 7_____

             Subcommittee on Communications and Technology

                          GREG WALDEN, Oregon
                                 Chairman
LEE TERRY, Nebraska                  ANNA G. ESHOO, California
  Vice Chairman                        Ranking Member
CLIFF STEARNS, Florida               EDWARD J. MARKEY, Massachusetts
JOHN SHIMKUS, Illinois               MICHAEL F. DOYLE, Pennsylvania
MARY BONO MACK, California           DORIS O. MATSUI, California
MIKE ROGERS, Michigan                JOHN BARROW, Georgia
MARSHA BLACKBURN, Tennessee          DONNA M. CHRISTENSEN, Virgin 
BRIAN P. BILBRAY, California             Islands
CHARLES F. BASS, New Hampshire       EDOLPHUS TOWNS, New York
PHIL GINGREY, Georgia                FRANK PALLONE, J r., New Jersey
STEVE SCALISE, Louisiana             BOBBY L. RUSH, Illinois
ROBERT E. LATTA, Ohio                DIANA DeGETTE, Colorado
BRETT GUTHRIE, Kentucky              JOHN D. DINGELL, Michigan
ADAM KINZINGER, Illinois             HENRY A. WAXMAN, California (ex 
JOE BARTON, Texas                        officio)
FRED UPTON, Michigan (ex officio)

                                  (ii)


                             C O N T E N T S

                              ----------                              
                                                                   Page
Hon. Greg Walden, a Representative in Congress from the State of 
  Oregon, opening statement......................................     1
    Prepared statement...........................................     4
Hon. Ann G. Eshoo, a Representative in Congress from the State of 
  California, opening statement..................................     8
    Prepared statement...........................................    10
Hon. Henry A. Waxman, a Representative in Congress from the State 
  of California, prepared statement..............................    12
Hon. Fred Upton, a Representative in Congress from the State of 
  Michigan, prepared statement...................................    95

                               Witnesses

Julius Genachowski, Chairman, Federal Communications Commission..    15
    Prepared statement...........................................    18
    Answers to submitted questions...............................    96
Michael Copps, Ph.D., Commissioner, Federal Communications 
  Commission.....................................................    27
    Prepared statement...........................................    30
    Answers to submitted questions...............................   117
Robert McDowell, Commissioner, Federal Communications Commission.    34
    Prepared statement...........................................    36
    Answers to submitted questions...............................   120
Mignon Clyburn, Commissioner, Federal Communications Commission..    53
    Prepared statement...........................................    55
    Answers to submitted questions...............................   124

                           Submitted Material

``Rolling Back Regulations at the FCC: How Congress Can Let 
  Competition Flourish,'' National Review article by Randolph J. 
  May, dated April 18, 2011, submitted by Mrs. Blackburn.........    71
Letters, dated May 1, May 20, and May 21, 1991, between Mr. 
  Dingell and Alfred C. Sikes, Chairman, Federal Communications 
  Commission, submitted by Mr. Dingell...........................    75


                           FCC PROCESS REFORM

                              ----------                              


                          FRIDAY, MAY 13, 2011

                  House of Representatives,
     Subcommittee on Communications and Technology,
                          Committee on Energy and Commerce,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 9:32 a.m., in 
room 2123, Rayburn House Office Building, Hon. Greg Walden 
(chairman of the subcommittee) presiding.
    Present: Representatives Walden, Terry, Stearns, Shimkus, 
Blackburn, Bilbray, Bass, Gingrey, Scalise, Latta, Kinzinger, 
Barton, Eshoo, Markey, Doyle, Matsui, Christensen, Dingell (ex 
officio), and Waxman (ex officio).
    Staff Present: Gary Andres, Staff Director; Ray Baum, 
Senior Policy Advisor/Director of Coalitions; Allison Busbee, 
Legislative Clerk; Stacy Cline, Counsel, Oversight; Neil Fried, 
Chief Counsel, C&T Debbee Keller, Press Secretary; David Redl, 
Counsel, Telecom; Roger Sherman, Minority Chief Counsel; Phil 
Barnett, Minority Staff Director; Shawn Chang, Minority 
Counsel; Jeff Cohen, Minority Counsel; and Sarah Fisher, 
Minority Policy Analyst.

  OPENING STATEMENT OF HON. GREG WALDEN, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF OREGON

    Mr. Walden. I welcome the FCC Chairman and Commissioners to 
our hearing today, and thank you for your thoughtful testimony 
and the time you each took to meet individually with me to 
discuss process reform ideas that could improve the 
transparency and accountability of the FCC. As I told the 
Chairman and each Commissioner, and as Ms. Eshoo and I 
discussed and agreed yesterday, a discussion about reforming 
process is not, and should not become, an exercise in 
partisanship, or serve as a cloak to attack past or present 
commissions or chairmen.
    As I am sure all will notice, only four witness chairs are 
occupied in light of Commissioner Baker's announcement 
Wednesday. I would like to thank her for her many years of 
public service not only as a Commissioner, but also in helping 
us complete the DTV transition while she was heading up the 
NTIA. I wish her well in her new endeavor.
    Turning to today's topic, it is our responsibility to 
review how independent agencies to whom we have delegated 
authority and over which we have jurisdiction conduct the 
public's business. At times the FCC succumbed to practices 
under both Democratic and Republican chairmen that weaken 
decisionmaking and jeopardize public confidence. While Chairman 
Genachowski and some of his predecessors have taken steps to 
improve process, we have all witnessed how process and 
procedures of one Chairman can change dramatically under 
another. One FCC is open and transparent, and the next is 
closed and dysfunctional. The time is ripe to codify best 
practices to ensure consistency from issue to issue and 
Commission to Commission.
    Many of my colleagues on this subcommittee have worked on 
reform ideas in the past, and some have proposed changes in 
bill form. We will consider those as well. To kick things off, 
here are seven items to think about:
    First, the FCC could be required to start new rulemaking 
proceedings with a notice of inquiry rather than a notice of 
proposed rulemaking. An NPRM presumes regulation is needed. The 
FCC should first examine the state of the relevant markets, 
services, and technologies. Even when regulation may be 
appropriate, the FCC is unlikely to craft as useful a proposal 
without first gathering preliminary information.
    Second, the FCC does not always publish the text of 
proposed rules for public comment before adopting final rules. 
Providing specific text will allow for more constructive input 
and a better end product. Crafting proposed rules should not be 
difficult if there is a genuine need and the FCC has started 
with an NOI.
    Third, finite timelines for resolution of matters would be 
helpful. Parties and the public should have some sense of when 
resolution will come.
    Fourth, the FCC now makes information available about which 
draft items are circulating before the Commissioners. The FCC 
could be required to provide additional information, such as a 
list of all unfinished items at the Commission, the date the 
items were initiated, their current status, and expected date 
of completion.
    Fifth, a bipartisan majority of Commissioners other than 
the Chairman could be allowed to initiate items to prevent a 
Chairman from stopping consensus items.
    Sixth, the President's Memorandum for the Heads of 
Executive Departments and Agencies, ``Regulatory Flexibility, 
Small Business, and Job Creation,'' requires executive agencies 
to conduct cost-benefit analyses before adopting regulations. 
The memorandum does not apply, however, to independent agencies 
like the FCC. We could remedy that by requiring the FCC to 
identify actual consumer harm and conduct economic, market and 
cost-benefit analyses before adopting any regulation.
    Seventh, the FCC's transaction review standards are vague 
and susceptible to abuse. Parties with a pending transaction 
should not feel pressure to accept ``voluntary'' conditions on 
the deal or to curtail their advocacy in other proceedings. 
These concerns are neither new nor of concern to only one 
party. Indeed, my good friend from Michigan, Chairman Emeritus 
Dingell, observed in a March 2000 hearing that there is ``great 
need to address and to reform the way the FCC handles its 
merger reviews. These are a remarkable exercise in arrogance, 
and the behavior of the Commission, oft-times by reason of 
delay and other matters, approaches what might well be defined 
as not just arrogance, but extortion.'' The concerns Mr. 
Dingell raised then have been borne out with increasing 
frequency over the last decade.
    To address this, the FCC could be prohibited from adopting 
any conditions unless they are narrowly tailored to any 
transaction's specific harm. To prevent the FCC from using 
transactions to commence industrywide changes it could not 
otherwise adopt, the FCC could be required to show statutory 
authority for the conditions outside the transaction review 
provisions of the act.
    These suggestions are simply meant as conversation 
starters. I look forward to additional suggestions from my 
colleagues or the Commissioners themselves.
    [The prepared statement of Mr. Walden follows:]

    [GRAPHIC] [TIFF OMITTED] T0741.001
    
    [GRAPHIC] [TIFF OMITTED] T0741.002
    
    [GRAPHIC] [TIFF OMITTED] T0741.003
    
    [GRAPHIC] [TIFF OMITTED] T0741.004
    
    Mr. Walden. And on that note, I yield back the balance of 
my time and would recognize the ranking member on the 
subcommittee, Ms. Eshoo from California.

 OPENING STATEMENT OF HON. ANNA G. ESHOO, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Ms. Eshoo. Thank you, Mr. Chairman, and good morning to 
you. And welcome to Chairman Genachowski and the members of the 
Federal Communications Commission. It is good to see you. 
Today's hearing is an important opportunity to hear from the 
FCC Chairman and the Commissioners on what is already working 
well, because there are things that are working well, and where 
there are opportunities to improve the Federal Communications 
Commission. We should work together as a committee to subject 
ideas and suggestions to healthy scrutiny and determine what 
reforms can be embraced to better serve the public good. That 
is why we are all here, and I think sometimes that gets lost in 
the complexity and the layers of things. We are here to serve 
the public good.
    Under Chairman Genachowski's tenure, the Commission has 
taken several key steps to increase openness, transparency, and 
greater interaction with the public. The Spectrum Dashboard, 
the new ex parte rules, the growing use of social media like 
Twitter and Facebook are just a few ways that the FCC has 
become more responsive to the needs of consumers and 
businesses. But there is always much more that can be done, and 
I welcome steps that will ensure that the Commission can 
operate as a modern, 21st-century Federal agency.
    Earlier this year I introduced the FCC Collaboration Act 
with our colleagues Representatives Shimkus and Doyle. This is 
a simple bipartisan reform measure which would modify the 
current rules which prohibit more than two Commissioners from 
talking to each other outside of an official public meeting. 
Now, why is this important? In an agency that deals with the 
highly technical issues like spectrum and universal service, 
FCC Commissioners should be able to collaborate and benefit 
from the years of experience that each one brings to the table. 
We should move this bill forward in a timely manner and get it 
done.
    I welcome examining other ideas as well, like the FCC 
Commissioners' Technical Resource Enhancement Act, a bill 
introduced in the last Congress that would allow each 
Commissioner to appoint an electrical engineer or a computer 
scientist to their staff. Similar to the Collaboration Act, I 
am open to looking at other ways to ensure that each 
Commissioner is equipped to evaluate the complex technology and 
telecommunications issues that the FCC is faced with today.
    What would concern me would be proposals which diminish the 
Commission's ability to protect the public interest and to 
preserve competition in the telecommunications marketplace. The 
FCC has a critical role to play in evaluating proposed mergers, 
ensuring that broadband is universally deployed, and that the 
market for voice and data service is actually competitive.
    To stay in touch with a rapidly changing industry, the FCC, 
I think, should make it part of its core mission to visit 
companies both small and large. Last month Commissioner Copps 
joined me in my congressional district, and we visited several 
companies headquartered in Silicon Valley. We learned a great 
deal. I extend a similar invitation to each Commissioner 
because I believe these types of meetings with entrepreneurs, 
engineers, and other technology experts are central to 
understanding the issues you work on every day.
    So thank you again for being here today. I really look 
forward to this hearing, and I also look forward to hearing 
your testimony and your fresh thinking.
    I yield back the balance of my time.
    [The prepared statement of Ms. Eshoo follows:]

    [GRAPHIC] [TIFF OMITTED] T0741.005
    
    [GRAPHIC] [TIFF OMITTED] T0741.006
    
    Mr. Walden. Now we are going to recess for about an hour. 
We think it could take upwards of an hour, so why don't we plan 
to just reconvene at 10:40. And with that, we stand in recess.
    [Recess.]
    Mr. Walden. I want to thank my colleague from Illinois for 
his courtesy in yielding to Mr. Waxman, who has another 
engagement at 11:30. So we will go out of our normal sequence.

OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. Waxman. Thank you, Mr. Chairman. I particularly want to 
thank Mr. Shimkus for his courtesy.
    I would like to welcome Chairman Genachowski as well as 
Commissioners Copps, McDowell, and Clyburn back to the 
Subcommittee on Communications and Technology. We understand 
how much effort goes into preparing to testify before Congress, 
and we greatly appreciate your participation.
    The topic of FCC reform is not new to this committee. As 
one reporter's account of an October 28, 1999, hearing recalls, 
quote, ``The FCC was criticized for its slow pace of 
institutional reform, its handling of the e-rate and universal 
service, its exercise of antitrust merger review authority, its 
delay in completing antitrust merger reviews, and its 
imposition of conditions on mergers,'' end quote. Well, today's 
hearing will take us back to the future as we revisit many of 
these same issues.
    At the outset, let me say Chairman Genachowski should be 
commended for his significant efforts and commitment to 
improving agency operations and boosting employee morale. Since 
he became Chairman, the agency has increased transparency, 
expanded opportunities for public input, and improved 
information sharing with other Commissioners and the public.
    The agency now includes more details on proposed rules in 
notices of proposed rulemaking, makes adopted rules available 
to the public more quickly, and has revamped its ex parte rules 
to enhance openness and transparency. These efforts have been 
made better by the thoughtful bipartisan suggestion of his 
fellow Commissioners.
    And it is clear that today the FCC is a much better place 
to work. According to the 2010 OPM employee survey, the FCC was 
the most improved agency in the Federal Government.
    I also want to commend subcommittee Chairman Walden for 
looking at this issue in a nonpartisan manner. He has sought 
input from all of the Commissioners and Republican and 
Democratic committee members, and he is committed to explore 
proposed process reforms in detail before we proceed toward 
possible legislation.
    If the committee does develop legislation regarding FCC 
reform, we should be guided by a few basic questions about each 
proposed change to ensure that we are promoting smart 
regulation.
    First, does a proposed change create an undue burden on the 
FCC? When we impose statutory requirements of any kind, we need 
to be wary of burdening the agency with compliance 
requirements.
    Second, are we undermining agency flexibility to act 
quickly and efficiently in the public interest? If we put 
prescriptive process requirements in statute, we could end up 
promoting slower, not faster, decisionmaking.
    And third, are we requiring additional process for valid 
reasons? We must not impose procedural hurdles for their own 
sake.
    Fourth, are we making procedural changes in an attempt to 
address outcomes with which we don't agree? For example, if we 
limit the ability of the agency to negotiate voluntary 
commitments related to mergers, are we also willing to accept 
that certain mergers may then be rejected outright? Some might 
view conditions as unfair, while others might see them as 
critical tradeoffs that allow transactions that might otherwise 
fail to go forward.
    And finally, why the FCC? Are we imposing process reforms 
on the FCC that should apply to all Federal agencies? If not, 
what is our basis for treating the FCC differently?
    I look forward to hearing our panel address these issues 
and to receiving their advice about how to improve the FCC. I 
look forward to working with you, Mr. Chairman, and I yield 
back. Any other Members wish me to yield to them? If not, I 
yield back the balance of my time.
    Mr. Walden. I thank the gentleman for his kind comments and 
look forward to continuing our discussion on these matters, and 
I appreciate your comments on the principles.
    I am now going to yield. We have 5 minutes on our side. We 
have several speakers, so if we could kind of work a minute 
apiece or not much over that. So at this time I would start 
with Mr. Stearns and recognize him.
    Mr. Stearns. Thank you, Mr. Chairman. I thank you for this 
hearing. I think the ranking member, Mr. Waxman, has pointed 
out that it is--the agency has come a long way. I think it has, 
but in this area of Internet technology, I think there is still 
a long way to go forward. And I think there is a litany of 
necessary improvements, and I think this hearing will show 
that.
    For example, the merger review process, I think, needs to 
be examined. Although the FCC internal shot clock to act on 
mergers is 6 months, XM/Sirius took over 16 months, Mr. 
Chairman, and Comcast/NBCU took nearly 11. So I think in a 
rapidly evolving market here, uncertainty can sometimes create 
havoc for markets, and deadlines for FCC action coupled with 
ensuring merger reviews are handled in a transparent way is 
important without endless strands of nonmerger-specific 
conditions attached, I think, would provide future certainty.
    So the bottom line, I think the agency could improve, and I 
hope we can move forward.
    Thank you.
    Mr. Walden. I now recognize the gentleman from Illinois, 
Mr. Shimkus.
    Mr. Shimkus. Thank you, Mr. Chairman.
    First of all, we want to thank Commissioner Baker for her 
time, and hopefully we can expeditiously get her replaced in 
the Commission. I know that is everyone's desire.
    Chairman, we appreciate the movement on reform. It is 
something that with the new technology, new age that is 
important, and we know there are steps being made in that 
direction.
    And I have enjoyed my time working with Commissioner Copps 
and, of course, Anna Eshoo. And on the sunshine bill, it just 
doesn't make sense. Maybe three can't speak together, but to 
have two not be able to speak of the Commissioners--Chairman 
Walden and I spoke on the floor. I think it is something that 
we can move expeditiously. Of course, I am not the Chairman, so 
I will defer to his wisdom and guidance, but based upon the 
last election, even in the cycle I said, I think the public is 
tired of comprehensive, big bills. We ought to move things that 
we can move clearly, concisely and defend, and maybe we will be 
there at the end if other things can't be agreed upon. But I 
have been--the Chairman has agreed to take a look at what we 
are doing and hopefully merge those with the other things that 
are not also in agreement and produce a good bill.
    So with that I thank him, and I will probably ask some 
questions on that if I am not on a plane. And I yield back.
    Mr. Walden. I recognize the gentlelady from Tennessee, Mrs. 
Blackburn.
    Mrs. Blackburn. Thank you, Mr. Chairman, and welcome to all 
of you.
    Procedurally I do have some questions about license 
transfers, indecency complaints, and FCC voting procedures. But 
I think the biggest problem that I have and what I want to 
discuss with you today is what I see is your overreach, going 
beyond your statutory authority, and you do it without 
consequence.
    And the Chairman and I have discussed our disagreement on 
net neutrality and regulation of the Internet, but I think 
there is also overreach to other things like data roaming and 
agencies scheming, which I think is a clever scheme, to 
socialize our mobile networks. And I think that as you look at 
privacy, and we will talk about this a little bit today, that 
the FCC is moving into areas where it should not be with issues 
like privacy.
    So I am one of those that think it is time to maybe rein 
the agency in a little bit and have a discussion about what 
your structure should look like. So thank you for being here to 
participate.
    I yield back.
    Mr. Walden. Mr. Bass or Mr. Gingrey, do you have any 
comments?
    Mr. Bass. If I could make a brief comment.
    I want to thank all four of you for being here today. And I 
am not sure whether I am going to be able to stay long enough 
to ask the question, but I was hoping that the Chairman would 
comment on this GPS, slash--you know, the spectrum issue, as to 
whether or not it would be appropriate for that decision to be 
one that the Commission itself makes rather than be done 
through rule. There are significant potential issues associated 
with this which need to be aired, and I am hopeful that the 
Commission will have a process that will allow for both sides 
in this debate to have their views considered and assure that a 
proper decision is made by the Commission.
    Thank you, Mr. Chairman.
    Mr. Walden. The gentleman yields back the time. All time on 
our side of the aisle has been yielded back. Same on the other.
    So with that, I would like to welcome the Chairman of the 
Federal Communications Commission, Mr. Genachowski. We 
appreciate your testimony and your work at reform, and we 
welcome your comments this morning, sir. Thank you.

      STATEMENT OF JULIUS GENACHOWSKI, CHAIRMAN, FEDERAL 
COMMUNICATIONS COMMISSION; MICHAEL COPPS, PH.D., COMMISSIONER, 
      FEDERAL COMMUNICATIONS COMMISSION; ROBERT MCDOWELL, 
  COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION; AND MIGNON 
    CLYBURN, COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION

                STATEMENT OF JULIUS GENACHOWSKI

    Mr. Genachowski. Thank you, Chairman Walden, Ranking Member 
Eshoo, members of the committee. Thank you for holding this 
hearing on FCC process reform.
    At the FCC we are focused on harnessing the power of 
communications technology to benefit all Americans, grow our 
economy, create jobs, enhance our competitiveness, and unleash 
innovation.
    On my first day as Chairman, I told the FCC staff that 
whether we can achieve these goals depends on how our agency 
works. That is why the FCC's processes and operations are 
important, as Chairman Walden has said, and that is why I have 
made it a priority to improve the way the FCC does business.
    Our approach to reform rests on a number of core 
principles: efficiency and fiscal responsibility; 
accountability and transparency; reliance on facts and data, on 
the power of technology to improve agency operations, and on 
the benefits of collaboration.
    To drive our reform efforts, I appointed a Special Counsel 
on FCC Reform immediately after my confirmation, and I hired a 
new Managing Director with experience running a multibillion-
dollar private-sector PNL to help lead our reform efforts.
    My fellow Commissioners have been vital partners in this 
effort. Commissioner Copps made FCC reform a priority when he 
was acting Chairman. Commissioner McDowell has raised issues 
with me on which we have taken positive action, and 
Commissioner Clyburn has taken a lead and has helped us make 
real progress on our process and relationships with the States.
    In the past 2 years working together we have increased 
efficiency, increased transparency, increased collaboration, 
and increased the effectiveness of the FCC. I am proud of our 
progress, and I am pleased that in the past 2 years, 95 percent 
of the Commission's actions have been unanimous and bipartisan.
    My written testimony includes many examples of the reforms 
implemented in the last 2 years. As John Wooden said, We 
shouldn't confuse activity with accomplishment, so I would like 
to use my limited time to highlight some of the real results of 
our reform efforts.
    In the last 2 years, we have reduced the time between the 
vote on a Commission decision and its public release from an 
average of 14 days to 3 days, and to 1 day in most cases. We 
have increased the number of notices of proposed rulemakings 
that publish the text of proposed rules from 38 percent to 85 
percent. We have eliminated many outdated regulations. Two 
months ago we identified 20 sets of unnecessary data-collection 
requirements to be eliminated, and just yesterday the 
Commission identified and eliminated an additional 5 data 
requirements.
    We have acted on over 95 percent of transactions within the 
180-day shot clock period. With respect to major transactions, 
we have cut down the review time by more than 100 days. We have 
reduced our broadcast application backlog by 30 percent and our 
satellite application backlog by 89 percent. We have broken 
down internal silos at the FCC and increased internal 
communications. We have reformed our video relay service, a 
reform that has already saved taxpayers about $250 million. We 
are saving millions of dollars by harnessing technology to 
improve the agency's operations including by consolidating 
multiple licensing systems and reducing data centers.
    A leading commentator said the Commission has gone from one 
of the worst to one of the best in its use of online tools to 
serve the public and all stakeholders. Just yesterday we 
relaunched FCC.GOV after receiving and responding to broad 
input on our beta launch. We have launched a public Spectrum 
Dashboard. A few weeks ago we had the first joint blog post in 
FCC history with all FCC Commissioners focusing on the 
importance of reforming the Universal Service Fund.
    We have held more than 85 public forums with active 
participation from Commissioners, and for the first time have 
made staff-led public workshops a routine part of Commission 
work. We have adopted reforms of our ex parte process to 
increase transparency, reforms of our voting process to 
increase efficiency, and reforms of our filing process to 
increase effectiveness.
    Our National Broadband Plan has been lauded as ``a model 
for other nations'' and has been praised for its process and 
its substance.
    OPM's governmentwide survey of Federal employees identified 
the FCC as the most improved place to work in the Federal 
Government. I thank Mr. Waxman for mentioning that. And just 
last week the FCC team that worked on the National Broadband 
Plan was nominated for a Service to America Medal, the most 
prestigious independent award for America's civil servants.
    I am proud of what we have achieved. The Commission is 
working effectively. We are moving in the right direction. And 
I thank my fellow Commissioners, as well as the FCC's 
employees, who have been instrumental in making this possible, 
as well as the many members of this committee who have over the 
years and in my time offered very constructive suggestions to 
improve our processes.
    Of course, there is more we can do to improve performance, 
and I am committed to continuing our efforts at reform. Making 
the FCC work is important because the FCC's mission is 
important. It matters to our economy, to our global 
competitiveness, and to the quality of life of all Americans.
    I look forward to working with the subcommittee on these 
important issues. I thank you, and I look forward to your 
questions.
    Mr. Walden. Thank you, Chairman, we appreciate it.
    [The prepared statement of Mr. Genachowski follows:]

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    Mr. Walden. And we will get that high-technology ringing 
device off over there in the corner. We are also streaming--if 
you notice on the video screens here, all of your data is 
streaming over your faces, too. It is part of what happens in 
repacking if you don't get it right. So great to be the 
technology.
    Anyway, we want to go now to the senior member of the 
Federal Communications Commission by length of service, I will 
only approach it that way. We appreciate your service to the 
country and on the Federal Communications Commission, Mr. 
Copps, and we welcome your testimony and comments.

                   STATEMENT OF MICHAEL COPPS

    Mr. Copps. Thank you very much. Good morning, Chairman 
Walden, Ranking Member Eshoo, members of the subcommittee. 
Thank you for holding this important meeting on FCC reform and 
for inviting me to share some thoughts with you.
    As Chairman Genachowski has explained, and many of you have 
already noted, we have had real and measurable accomplishments 
toward FCC reform under this current Commission, and I am proud 
of those.
    I know there are many other ideas and proposals you will 
want to discuss this morning, and I am happy to comment on any 
of them, but in my brief time now, I want to mention just three 
ideas that I find especially important.
    First and foremost, please allow the Commissioners to talk 
to one another. That seems a strange request in a town fueled 
by dialogue and debate when in FCC world, when three or more of 
us are ever together outside of a public meeting, we must get 
lockjaw. We cannot mention one iota of policy or substance, 
float one idea for resolving a crisis, or suggest any 
alternative path for addressing a problem. This has not only 
irked me for years, but troubled me greatly, because it is like 
sending a football team into a huddle and prohibiting the 
players from talking to one another. That is the FCC under the 
closed-meeting rule: the silent huddle.
    So the first thing I want to do this morning is to applaud 
Congressman Anna Eshoo and Congressman John Shimkus and 
Congressman Mike Doyle for the introduction of their FCC 
Collaboration Act. This proposed legislation is a modest, 
commonsense, and much-needed reform to modify the closed-
meeting rule that prohibits more than two Commissioners from 
ever talking to one another unless it is in a public meeting. I 
have spoken about the need for this reform for many years 
before the subcommittee. I am hopeful this will be the year 
when legislation is finally enacted.
    I have seen first-hand for the pernicious and unintended 
consequences of this prohibition, stifling collaborative 
discussions among colleagues, delaying timely decisionmaking, 
discouraging collegiality, and shortchanging consumers and the 
public interest.
    Elected representatives, Cabinet officials, judges, even 
the cardinals of my Catholic Church have the opportunity for 
face-to-face discussion before making important issues. I see 
no reason why the FCC Commissioners should not have the same 
opportunity to reason together, especially when balanced, as 
this legislation is, with specific safeguards designed to 
preserve transparency. If it is good enough for Congress, the 
courts, and Holy Mother Catholic Church, it ought to be good 
enough for the FCC.
    Reaching agreement on the complex issues pending before us 
is difficult enough in the best of circumstances, but it is 
infinitely more so when we cannot even talk about them among 
ourselves. Each of the five Commissioners brings to the FCC 
special experiences and unique talents that we cannot fully 
leverage without communicating directly with one another.
    This act is a prudent, balanced proposal that recognizes 
the benefits of permitting the Commission to do its business 
collectively, while maintaining full transparency of the 
process. Enactment of this legislation would, in my mind, 
constitute as major a reform of Commission procedures as any 
that I can contemplate. It doesn't just protect the public 
interest, it advances the public interest. And it is number one 
on my list.
    My second suggestion is let us get the FCC out of 
Washington and on the road more frequently; I mean the full 
Commission, all of the Commissioners. We live too much in an 
isolated, inside-the-Beltway culture. We see the usual players, 
make the same speeches every year, and attend the same 
functions and events. And that is fine up to a point, but if it 
comes at the expense of letting America see the FCC and letting 
the FCC see America, it is not so good. Our deliberations would 
surely and greatly benefit from taking the FCC outside 
Washington, DC, and put it on the road so it could directly 
hear from average Americans.
    The Commission holds an open meeting each month, and I see 
no reason why for at least few months out of a year we couldn't 
conduct our meetings in places like Bend, or Benton Harbor, or 
Boston, or Austin, or Mountain View. In communications, every 
American is a stakeholder, and each of us is affected in so 
many important ways by our media policies, spectrum 
allocations, and universal service, just to name a few big-
ticket items on our agenda.
    The idea here is not just that people would see the 
Commission, but that the Commission would see the people and 
gain a greater understanding of the impact of our decisions on 
American consumers. It is just better communications, and, 
after all, Communications is our middle name.
    Third, and this is related to what I just suggested, we 
need to encourage more input into our deliberations by what I 
have called our nontraditional stakeholders. Although we hear 
often, sometimes every day, from the big interests with their 
armies of lawyers and lobbyists, we hear much less from 
everyone else, all of those consumers and citizens who don't 
have a lobbyist or lawyer in town to represent them, but who 
nevertheless have to live with the consequences of what we do 
in Washington.
    I have devoted considerable time during my years at the 
Commission to open our doors to the full panoply of American 
stakeholders, including minorities, rural Americans, the 
various disabilities communities, Native Americans, consumer 
and advocacy organizations, and also educational institutions. 
We were designed to be a consumer protection agency. Let us get 
the skinny from those who consume what you and I do in 
Washington, DC.
    Another area where we need to see more progress and 
partnering is in the Federal, State, local governmental 
relationship. I believe more of this kind of interaction was 
envisioned and encouraged by the Telecommunications Act of 
1996. As we embark upon the formidable challenge of revamping 
universal service and intercarrier compensation, it is vitally 
important that we are sharing data, sharing ideas and sharing 
responsibilities with our colleagues at all levels of 
government.
    I commend the Chairman for moving us forward in this regard 
and also my colleague Commissioner Clyburn for the excellent 
work she has done to reinvigorate our partnerships with the 
States as Chair of the Federal-State Joint Boards. We need 
always to be thinking about how to build upon the experiences 
and knowledge that exist in such abundance at all levels of 
government.
    Let me say that this present Commission has made many and 
impressive, important strides to increase transparency, to work 
collaboratively with all stakeholders, and to hold workshops 
both inside and outside the Nation's Capital. The Chairman's 
statement recounts many of these, and I commend him for the 
progress that has been made.
    My point is this work is never done, and there is much more 
that we can still do. There are years, decades of ``inside-the-
Beltway-itis'' to make up for, and this demands some 
fundamental reorientation of the Commission. We can talk about 
deadlines, shot clocks, what is an NOI versus an NPRM, and 
those are all relevant matters to discuss. But above them all 
is giving consumers and citizens confidence that their voices 
are being heard, their suggestions given credence, and knowing 
that their Commission exists to serve the public interest, a 
term that, by my rough count, appears some 112 times in the 
Telecommunications Act. That is our lodestar, and we need to 
keep our fix on that lodestar every minute of every day.
    Thank you for convening this conversation, and I look 
forward to your comments and suggestions for the betterment of 
the Good Ship FCC.
    Mr. Walden. Mr. Copps, thank you, as always, for your 
comments and suggestions.
    [The prepared statement of Mr. Copps follows:]

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    Mr. Walden. I go now to Commissioner McDowell. We welcome 
you. We appreciate your thoughtful addition to this discussion, 
and we welcome your testimony.

                  STATEMENT OF ROBERT MCDOWELL

    Mr. McDowell. Thank you, Chairman Walden, and Ranking 
Member Eshoo, all members of the committee. And I also see a 
familiar face sitting behind Mr. Stearns over there, Brooke 
Ericson, my former law clerk. And now that you are my overseer, 
I really am hoping I was a nice boss.
    But as you know, Congress created the FCC in 1934, almost 
77 years ago. In that year Babe Ruth signed a contract for an 
eye-popping $35,000 a year. Donald Duck made his movie debut, 
the average new house cost less than $6,000, the entire Federal 
budget was only $6.5 billion, and a gallon of gas cost 10 
cents. And, my, how times have changed.
    Although a few amendments have been made to the laws of the 
Commission--the laws the Commission operates under since then, 
many of the regulatory legacies from 1934 remain in place. The 
technologies we take for granted in today's communication's 
marketplace were unimaginable to even the most creative of 
science fiction writers when existing mandates were written.
    Against this backdrop it is fitting for this committee to 
examine ways to reform the FCC to make it more efficient and 
relevant to modern realities. I operate under the philosophy 
that Congress should tell us what to do and not the other way 
around, but given your solicitation of suggestions, I will 
start by raising several possible statutory changes to improve 
the FCC before moving on to possible procedural reforms that we 
could effectuate.
    Twenty-first-century consumers want to have the freedom to 
enjoy their favorite applications and content when and where 
they choose. Whether such material arrives over coaxial cable, 
copper wires, fiber or radio waves is of little consequence to 
most consumers so long as the market's supply of products and 
services satisfies demand. Legacy statutory constructs, 
however, have created market-distorting legal stovepipes based 
on the regulatory history of particular delivery platforms. 
While consumers demand that functionalities and technologies 
converge, regulators and business people alike are forced to 
make decisions based on whether a business model fits into 
Titles 1, 2, 3, 6, or none of the above. As Congress 
contemplates FCC reform, it may want to consider adopting an 
approach that is more focused on preventing concentrations and 
abuses of market power that result in consumer harm.
    Furthermore, ideas from outside the Commission also deserve 
serious consideration. For instance, Randy May, the president 
of the Free State Foundation, has called for building on the 
deregulatory bent of sections 10 and 11 of the Telecom Act of 
1996 by adding an evidentiary presumption during periodic 
regulatory reviews that would enhance the likelihood of the 
Commission reaching a deregulatory decision.
    With respect to procedural ideas, almost 2 1/2 years ago, I 
sent to my colleague, then-Acting Chairman Mike Copps, a public 
letter detailing some ideas to improve our agency's 
effectiveness. He and I agree on many reform ideas, such as 
modernization of the cumbersome and outdated sunshine rules 
that prevent more than two of us from discussing Commission 
business outside of a public meeting. Later, in July of 2009, 
after Julius Genachowski became a Commission colleague as well, 
I sent him an updated letter with additional ideas and 
suggestions within existing statutory constructs. Time does not 
allow me to enumerate all of them, so I have attached these 
letters as part of my testimony and respectfully request to be 
included in the record.
    I am delighted to report that some reforms have already 
been implemented. For example, many stale or ill-advised 
Commission action items awaiting votes contained on what we 
call the circulation list have been weeded out. A portion of 
the backlog of the 1.4 million broadcast indecency complaints 
that were defective on their face have been dismissed. And the 
FCC now relies more on electronic internal communications 
rather than paper deliveries.
    Going forward, I am hopeful that other FCC reform 
suggestions will be carried out as well. I have long called for 
a full and public operational, financial, and ethics audit of 
everything connected to the FCC, including the Universal 
Service Administrative Company, also known as USAC. The 
erroneous payment rate in the High Cost Fund alone has been far 
too high, and we may need to make fundamental changes to fix 
the problem.
    Chairman Genachowski has made good progress in ensuring 
that notices of proposed rulemaking contain actual proposed 
rules. I applaud his efforts. I would encourage improving the 
process further by codifying this requirement in our rules.
    The Commission should include proper market power analyses 
to justify new rules in notices of proposed rulemaking. If a 
market power analysis is not appropriate, the FCC should 
explain why.
    When regulated entities are under scrutiny for alleged 
violations of our rules, such as broadcasters being 
investigated for airing indecent material, often they are not 
notified in a timely manner of the investigation or its effects 
on other matters before the Commission, such as license 
renewals. Similarly, entities are not always informed of when 
they have been cleared of wrongdoing. More transparency and 
better communication in this area would not only be a matter of 
appropriate due process, but simple good government as well.
    To promote collegiality and efficiency we could improve the 
productivity of all Commissioners' offices by routinely sharing 
options memoranda prepared by our talented career public 
servants. All Commissioners should be able to benefit from the 
same advice and analysis enjoyed by our many chairmen over the 
years. And perhaps we could call this our ``No Commissioner 
Left Behind'' program.
    Many, many, many more ideas abound, and I look forward to 
discussing all suggestions and ideas with you, and thank you 
again for the opportunity to appear before you today, and I 
look forward to your questions.
    Mr. Walden. Commissioner McDowell, thank you for your 
suggestions.
    [The prepared statement of Mr. McDowell follows:]

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    Mr. Walden. Now we, for our final witness, turn to 
Commissioner Clyburn. We appreciate the time you have taken to 
engage in this matter with me and others on this committee, and 
we look forward to your testimony.

                  STATEMENT OF MIGNON CLYBURN

    Ms. Clyburn. Thank you, Mr. Chairman, for that and for 
inviting me to participate in today's hearing. It is my 
pleasure to see you, Ranking Member Eshoo and the other members 
of the subcommittee. I respectfully request at this time that 
my full statement be included in the record.
    My colleagues and I work in an environment with many moving 
parts. As with any Federal agency, there are checks and 
balances in place, and the regulations and decisions we 
consider and adopt receive thorough consideration and 
incredible scrutiny. The Commission staff works diligently on 
each item with the objective of delivering a finished product 
that is cogent, precise, and effective. Such complexity often 
does not lend itself to rocket dockets and express reviews, yet 
the Commission has worked hard to streamline its processing of 
many items.
    Other proceedings, however, require significant examination 
that takes time and an incredible amount of staff resources. 
Thus, our consideration of many rulemakings and adjudications 
can endure over weeks, months, and in some instances years. 
Part of the reason why many of our deliberations take so much 
time is because of our robust and all-inclusive public comment 
mechanism.
    During our consideration of a rulemaking item, the 
Commission listens to any and all comers, petitioners, adverse 
parties, interested participants, the public, and so on. So 
criticisms about the FCC being sealed off from the public are 
inaccurate, I believe, and I am proud of our process and the 
number of public comments that stem from it.
    We have made huge strides in putting an enhanced public 
face on the Commission under Chairman Genachowski's leadership. 
Through Reboot.FCC.gov, our external advisory committees, 
public forums, and the FCC's numerous workshops, we welcome, 
expect and, quite frankly, need voices and opinions from 
outside of our walls to provide feedback, criticism, and 
counsel. This is definitely not your grandfather's FCC.
    Regarding our much-maligned sunshine rules, I have a 
particular interest and potential tailor-made revisions to the 
way in which we interact. The introduction of H.R. 1009 would 
be a significant improvement in our deliberative process, and I 
thank Ms. Eshoo, Mr. Shimkus and Mr. Doyle for this bill. 
Recently, NARUC, the national body representing State 
commissioners, praised the introduction of this legislation and 
offered its support for it.
    Allow me to bring me to your attention the fact that NARUC 
did note the need for one minor change to the legislation in 
order to improve its effectiveness with respect to the Federal 
Commissioners' participation on the Joint Boards and 
Conference. The Joint Boards and Joint Conference have Federal 
and State representation, and each is involved in the 
Commission's policymaking process with respect to their 
subject-matter focus in the areas of universal service, 
jurisdictional separations, and advanced services. Under 
current law, three or more Commissioners may not participate in 
a Joint Board or Conference meeting unless the meeting is open 
to the public and has been properly noticed.
    Currently Federal Commissioners must take turns 
participating in our in-person meetings and conference calls. 
This has made it extremely difficult for a constructive, and 
effective and efficient deliberations when it comes to Joint 
Board-recommended decisions. NARUC's letter makes the same 
observation, and I join support of its request that H.R. 1009 
include language to extend the proposed Sunshine Act's 
exemption to cover FCC Commissioners who participate on the 
Joint Boards and Conference.
    I believe that it is critical that the FCC collaborate with 
the States on telecommunications and broadband policy. It is my 
belief that the understanding of local issues must be fully 
considered, and State commissioners know these needs best.
    When I came to the FCC, my primary goal was to improve the 
communications and collaboration between our agency and the 
States. Fortunately, Chairman Genachowski offered me the 
position of Chair of all of the Joint Boards and Joint 
Conference. With his support I believe we have revitalized and 
strengthened the relationships with the States through these 
bodies.
    Thank you again, Mr. Chairman, for another opportunity to 
appear before the committee. I hope that today's discussions 
will highlight any areas of concern that the members of this 
committee may have, be they process systems, agency rules, or 
any other methods of practice we use.
    Mr. Walden. Thank you, Commissioner Clyburn. We appreciate 
your testimony and that of your colleagues on the FCC.
    [The prepared statement of Ms. Clyburn follows:]

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    Mr. Walden. I want to start with a question regarding the 
Commission's agenda. I understand the Chairman is agency CEO, 
controls the Commission's agenda. I have a question, though, 
that a Chairman could prevent the FCC from addressing important 
issues even when a bipartisan majority of the Commissioners 
believes that moving forward is necessary.
    So I would like each of you to answer, do you believe that 
a bipartisan majority of the Commissioners other than the 
Chairman should be allowed to work with the agency staff to 
move an item?
    Commissioner--we will start with the Chairman.
    Mr. Genachowski. Well, having a collaborative process has 
been important to me from the start, as I mentioned, and I 
appreciate the collaborative way that all of us have worked 
together. I can't imagine a situation----
    Mr. Walden. I am going to keep you kind of short here 
because I have got a series of questions. But again, this isn't 
about you, and it is not about this Commission, because things 
have changed. They can change again.
    So the question is should you be able to be allowed to work 
with the agency staff to move an item? Should the other 
Commissioners?
    Mr. Genachowski. I think the statute now is correct on 
this. I think any organization needs a chief executive 
responsible for the prompt----
    Mr. Walden. So it is a no.
    Commissioner Copps.
    Mr. Copps. Yes, I do. I believe the three Commissioners 
should have the power to call up an item, to delete an item 
from an agenda, and to edit any and all documents.
    Mr. Walden. Commissioner McDowell.
    Mr. McDowell. This is another boring chapter in the long, 
multivolume set known as the Copps-McDowell alliance. I agree 
with my colleague to the right of me, ironically.
    And so, yes, we actually, in all seriousness, in the fall 
of 2008 could have resolved a lot of thorny questions on 
universal service reform, intercarrier compensation because 
there were four Commissioners, two Republicans, two Democrats, 
in agreement, but the Chairman at the time did not move the 
item.
    Mr. Walden. Thank you.
    Commissioner Clyburn.
    Ms. Clyburn. We are the sum total of our experiences, so in 
that regard, I have healthy engagement, and at this time I 
don't see any need for any revisions in that manner.
    Mr. Walden. OK.
    Mr. Genachowski. Could I add just one other thing? Ninety-
five percent of what we do is unanimous. Historically this 
hasn't been a problem except for, as far as I can tell, one 
anomaly. And so I personally think that changing the statute to 
address one anomaly when it hasn't been a problem, I can't 
imagine an incidence when it wouldn't be three Commissioners 
for a step that we couldn't work out together.
    Mr. Walden. Commissioner Copps?
    Mr. Copps. This reminds me of the old story from history 
when Abraham Lincoln was meeting with his Cabinet to discuss a 
very serious issue, and he took a vote, and there were three 
noes from the Cabinet. And then he voted, and he said, the ayes 
have it.
    Mr. Walden. That is why I thought I would ask the 
Commissioners, not the Chairman, and those who had been there 
during other times. Appreciate it.
    Commissioner McDowell, you mentioned in your written 
testimony that the FCC should include proper market power 
analyses to justify new rules or else explain why such analyses 
are inappropriate. Could you elaborate on your views, and would 
you agree that performance measures for regulators should be 
built into the process for adopting new regulations so that the 
public can monitor whether the purported benefits for 
regulation actually play out?
    Mr. McDowell. Sure. One assumes that if a new rule is going 
to go in place, it is because something is not working in the 
market. So why is there not something working in a market? So a 
market power analysis, I think--and a proper market power 
analysis, I think, is warranted. Now, there may be good reason 
why a market power analysis is not needed, but the Commission 
should then be required to explain why it is not doing a market 
power analysis.
    Mr. Walden. Commissioner Copps, do you care to comment on 
that?
    Mr. Copps. Well, I think that is one argument. I suppose 
the other side of the argument is that that is why we have 
notice and comment and the ability of all parties to explain 
the advantages and disadvantages of a situation.
    I think we should be doing basic economic analysis. I think 
in all the cases that I have seen under this Commission, we 
have probably done more of that than we have done in any of the 
other Commissions that I have been a part of. Whether you put 
that in a package and call it market power analysis and 
differentiate it from all of that other stuff, I don't know. I 
would vote to have a little more flexibility than that.
    Mr. Walden. Commissioner Clyburn?
    Ms. Clyburn. I would be open to this type of engagement and 
conversations, but to my knowledge, a lot of this, whether it 
is labeled so or not, is happening within the bureaus. So I 
think we are having the benefit of some of the engagement even 
if it is not called that.
    Mr. Walden. Chairman Genachowski.
    Mr. Genachowski. As a general matter this is what we do. 
The APA requires us to consider all arguments presented to us, 
and we certainly get arguments about market issues. 
Affirmatively it is something we can and should do. There are 
cases when the reasons stacked are different. If it is public 
safety regulations, disabilities, rules, et cetera, it doesn't 
make sense. But in any situation where what we are doing is 
designed--where it would make sense, we do it; we do it as a 
matter of practice, and the APA would require us to do it.
    Mr. Walden. My time has expired, and I turn to my colleague 
from California, Ms. Eshoo, for 5 minutes.
    Ms. Eshoo. Thank you, Mr. Chairman.
    I thank the Chairman of the Commission, and the 
Commissioners, for your testimony and your ideas. I want to 
congratulate you for what you have already done. It really 
should not be skipped over. I took a look at your new Web site 
last night. I think it is hot. I really do. I recommend it to 
others as well.
    First of all, is there anyone on the panel here today that 
does not support the legislation for improving the decision-
making process at the agency, the legislation that myself and 
Mr. Shimkus and Mr. Doyle have introduced?
    Mr. Genachowski. I would just emphasize two things if I 
could. One is the importance of making sure----
    Ms. Eshoo. First, tell me yes or no.
    Mr. Genachowski. No, I am supportive of it as long as it 
preserves the transparency goals underlying the sunshine act 
originally. And I think the joint board issue is one where I 
would certainly support a measure that would take care of that 
issue. It is really a conflict between two statutes that 
doesn't make sense.
    Ms. Eshoo. In California we have had the Brown Act for 
years and years that has, I think, really served the public 
interest very well. So I appreciate that. But it is good to 
know that there is across-the-board support.
    To Chairman Genachowski, in response to my posthearing 
questions from our February 16 meeting, you indicated that a 
proceeding is underway to determine whether the FCC's special 
access rules are ensuring that the rates, the terms, and the 
conditions for special access are just and reasonable. Are 
there procedural changes in the way that the FCC operates that 
could speed up this process?
    Mr. Genachowski. I am not sure there are. We have heard 
many complaints about the special access area. When we started 
looking into it in my time there, we realized that the data 
that the Commission had was really--provided no real basis to 
actually make a judgment or support actions.
    But we are in the middle of a process now to collect the 
data we need. I think that is proceeding on schedule. I will go 
back and look at whether there are procedural changes that 
would be helpful, but I think we have the procedural 
flexibility to do what we need to do.
    Ms. Eshoo. Again to the Chairman, I understand that there 
is often resistance from industry to provide the data necessary 
to fulfill the Commission's goal of serving the public 
interest. What are the roadblocks to obtaining this data and 
how can we assist you in ensuring that you have the data needed 
to preserve competition and consumer choice?
    Mr. Genachowski. It is an important topic because we are 
all committed to having the FCC be an agency that is about 
facts and data. You can't be an agency about facts and data 
without data.
    What we have tried to do over the last 2 years, with the 
help of the committee, is look both at old data collection 
requirements that are outdated, that can be eliminated, and 
also making sure that we are getting the data that we need in 
this new world. So by removing data, we are showing, I hope, 
establishing credibility that we are focused only on what we 
really need to do.
    Ms. Eshoo. Do you need us to help you do that?
    Mr. Genachowski. I am not sure if we need rules changes, 
but I think your interest in making sure that we have the data 
that we need and supporting us in this effort is helpful.
    Ms. Eshoo. Good. Does the Commission collect statistics on 
wireless network quality and reliability? For instance, do you 
have data relative to dropped calls?
    Mr. Genachowski. On dropped calls, we actually built and 
distributed an app to begin to get information from consumers.
    Ms. Eshoo. So you are just starting that?
    Mr. Genachowski. So we are just starting that. It is a new 
thing. I agree, it is an area we should look at.
    Ms. Eshoo. Good. Commissioner Copps mentioned in his 
testimony the value of holding field hearings, and I know that 
there were to examine the Comcast-NBC merger. Do you plan to 
hold similar field hearings on AT&T and T-Mobile?
    Mr. Genachowski. In general, we have done a number of field 
hearings. We will continue to do them. We will be in Nebraska 
next week on universal service reform. We have been in many 
States.
    Ms. Eshoo. Do you plan to do them on this gigantic merger?
    Mr. Genachowski. We haven't announced the hearing schedule, 
so if I can get back to you once we do that.
    Ms. Eshoo. I would urge you to do it because the public 
needs to come to these hearings and understand what is at stake 
for them and ask you questions about what is going into this 
decision. They are the ones that are going to be affected by 
it. Here inside the Beltway, it is like gossip city, who said 
what and how fast it is going and how slow and why and all of 
that. And it is sexy inside the Beltway. But for people out 
there, they want to know how is this going to affect my rates.
    Mr. Genachowski. I agree.
    Ms. Eshoo. These are becoming expensive utility bills. It 
is important for you to hit the road.
    Thank you, Mr. Chairman.
    Mr. Walden. Thank you, Ms. Eshoo.
    Just one quick question. There is nothing in statute that 
precludes you from doing the public hearings you've talked 
about; right? You don't need that from us?
    Mr. Genachowski. I don't think so.
    Mr. Walden. I turn now to Mr. Shimkus.
    Mr. Shimkus. Thank you, Mr. Chairman.
    Thank you for coming. I am bouncing between two committee 
hearings, one with the EPA on rules and regs. I want to make 
sure, this is on process reform, and sometimes we will get 
jumbled in on what is going on and think a process reform may 
solve it, but we really want to stay on what can we do to 
transparency and the like.
    Commissioner Clyburn, I appreciated the example, and we get 
e-mail, too, from NARUC on extending that, and I think that is 
a good idea and something that should be included. But it gave 
me a question for the Commissioners, and Chairman, you can 
weigh in too, if you would like; the Commissioners specifically 
highlighted our piece of legislation as being beneficial.
    Can you give me an example how that would be helpful? 
Especially Commissioner Copps, you have been around a long 
time. You probably have a few stories, like we did just prior. 
Give us some real-world application why you think this would be 
helpful.
    Mr. Copps. Well, a joint board example like Commissioner 
Clyburn was talking about, we will have a conference call and 
Commissioner Clyburn and Commissioner Baker and myself are each 
members of that board, but we cannot be on at the same time. 
So, say Commissioner Baker is on for the first 10 minutes. Then 
we say, well, Commissioner Baker, you have to get off; 
Commissioner Copps is getting on, and then it goes back and 
forth. So you really interfere with and retard the discussion.
    But even going beyond that, I think there is something to 
be gained by the synergies of having five individual people 
chosen with five different skill sets, vetted by the White 
House, confirmed by the Senate, to come to the Commission and 
to just have them sit down in a room together. I think some of 
the personality conflicts that we have had in previous 
Commissions, and I don't want to overdramatize them or anything 
like that, but I think things would have gone better and been 
more easily resolved and more of the spirit of compromise and 
collegiality would have attended those issues had we been able 
to do that. I don't understand why we are not able to do that.
    Mr. Shimkus. Mr. McDowell.
    Mr. McDowell. Yes, I agree. So to go back to that fall of 
2008 example with the universal service intercarrier 
compensation where four Commissioners--again, two Republicans, 
two Democrats--agreed on some fundamental reforms, it would 
have been nice if all five of us could have gotten into a room, 
or three of us, to try to figure out why that wasn't moving. So 
I think it would speed the process.
    I think it would be more efficient, as Commissioner Copps 
said, it would breed more collegiality. And keep in mind, our 
work product ultimately is public and appealable to the courts 
if someone doesn't like it, so transparency is still there.
    Mr. Shimkus. Commissioner Clyburn?
    Ms. Clyburn. Coming from a joint board perspective, you 
have already heard how inefficient the process, the current 
process is. To give the public some assurances or some more 
comfort in this, when we talk about the joint board and joint 
conference, joint boards and joint conference experience, the 
recommended decisions from these bodies are not final. They are 
recommended decisions, and they are presented to the FCC, and 
then at that point there is a notice, the process of noticing 
goes into place. Then and only then, after that is exhausted, 
that comes to the FCC for a decision. So these are not final. 
Recommended decisions are not final decisions. They go through 
processes, so the public should feel some comfort. But this 
disconnect that we have is something that does not lend itself 
for a good exchange.
    Mr. Shimkus. Mr. Chairman, do you want to weigh in?
    Mr. Genachowski. I agree that the joint board situation is 
a problem that should be fixed.
    Mr. Shimkus. Another process reform, and it is kind of the 
age-old argument that people raise capital, assume risk, and 
need some certainty whether to either produce or to withdraw 
from the market. Some people have proposed issues like shot 
clocks as far as time lines, minimum review periods after the 
close of a comment cycle. Does anyone have to talk about that? 
And I only have 34 seconds, so do it quickly.
    Mr. Genachowski. I think in general, shot clocks can be an 
effective management tool. They are one of the tools that we 
use. I think preserving flexibility is important; but I think 
it can be an effective management tool.
    Mr. Copps. I would agree. I think sometimes shot clocks, 
such as accompanied the Comm Act that we are looking at now, do 
mandate that we take action. Again I think this Commission is 
doing a good job generally on this score, so I don't know that 
we would have to mandate it unless the problems got a lot 
worse. I do agree that business needs certainty, but I think 
that comes more from the substance of the rules than the 
process, and having a clear idea of the rules that they are 
going to operate under.
    Mr. Shimkus. Commissioner McDowell?
    Mr. McDowell. I think shot clocks can be very helpful. I 
have long advocated them. I do agree with the Chairman that we 
need to preserve some flexibility. Things can go wrong. 
Sometimes we get a shot clock from Congress, with the Comm Act 
or the Telecommunications Act of 1996; but internally, we 
probably could use more.
    Ms. Clyburn. In principle I am not in disagreement with 
shot clocks; but I think they should be treated as guidelines 
and not be allowed to rule the process.
    Mr. Shimkus. I thank you all. I yield back the balance of 
my time.
    Mr. Walden. We now go to Dr. Christensen for the next 5-
minute round.
    Mrs. Christensen. Thank you, Mr. Chairman, and welcome to 
you, Mr. Chairman, and the other Commissioners. From the 
outset, I want to make it clear that I know my question 
regarding FCC's review of mergers and transactions is an issue 
of authority and not one of process. It is clear that Congress 
created a strong public interest mandate for the FCC. As 
Commissioner Copps noted, the words ``public interest'' appear 
112 times in the Communications Act. The FCC has clear 
statutory authority under the act to conduct its public 
interest evaluations of mergers and transactions, and the 
courts have conferred great leeway for the agency to fulfill 
these public interest duties.
    Commissioner McDowell, I wanted to ask you whether you 
agree with the statement made by Commissioner Baker in March 
that the FCC has ``clear statutory obligation to closely 
scrutinize transactions and reject those that violate the 
Communications Act, FCC rules, or fail to serve the public 
interest''?
    Mr. McDowell. Yes, I agree with that.
    Mrs. Christensen. Does everyone agree with that statement?
    Mr. Genachowski. Yes.
    Mrs. Christensen. Chairman Genachowski, why do you believe 
that the FCC should have jurisdiction over transactions? Why 
wouldn't DOJ or FTC review be sufficient?
    Mr. Genachowski. Well, the Communications Act makes it 
clear that the FCC must approve transfers of communications 
license and find that they are in the public interest in order 
to do so. Communications is something of importance to every 
American. It is a sixth of our economy. They involve complex 
technical issues where an expert agency is important, other 
goals and values that are enshrined in the Communications Act, 
and that has been our system for many, many years and it is 
important to make it work effectively.
    Mrs. Christensen. Some have complained that in reviewing 
some of the mergers, the FCC has imposed conditions that are 
not transaction-specific. For example, during the review of the 
Comcast-NBC Universal transaction, conditions involving 
broadband adoption and diversity were imposed. Do all of you 
believe that those conditions are merger-specific? Mr. 
Chairman?
    Mr. Genachowski. Yes. If I can add one word, the statute 
requires the FCC to make a determination that a transaction is 
in the public interest. So it is not surprising that companies, 
as they come to the FCC and file for approval, make the case 
for why a transaction is in the public interest and point to 
specific public interest benefits. With respect to some of the 
benefits, given the potential harm of some transactions, it 
becomes important to make sure those commitments are binding.
    Mrs. Christensen. Commissioner Copps?
    Mr. Copps. Yes, I agree very much that conditions on 
transactions are perfectly within the purview of the 
Commission. I know there is an argument whether they should be 
company-specific or products of industrywide rulemaking. But 
that is a hard line to draw. Some of these transactions, like 
Comcast and NBC, are paradigm shifting. They change the whole 
industry, so it is very difficult to make a clear division, 
like some people would have us make.
    Mrs. Christensen. Commissioner McDowell?
    Mr. McDowell. I do not believe conditions should be imposed 
that are not merger-specific. I think in that particular 
transaction, there were a number of conditions or voluntary 
commitments that were not merger-specific. They might be 
evidence of good corporate citizenship, or evidence that they 
wanted to try to sweeten the deal for FCC's approval, but some 
of them had nothing to do with the merger itself.
    Mrs. Christensen. Commissioner Clyburn?
    Ms. Clyburn. I agree in terms of the public interest 
standard that the FCC is basically mandated to do that. We are 
the experts in this space. We not only are required to look at 
competition, which is solely DOJ's purview, but we have to look 
at the public benefits, and that includes a number of benefits 
as well as harms, and we have to weigh those, and conditions 
are sometimes warranted to answer those.
    Mrs. Christensen. Let me just ask a question of Chairman 
Genachowski in my last few minutes.
    You talked about holding a public forum on reducing 
barriers to broadband and band buildout, and we really commend 
all of you for the forums that you have held. These events are 
important to the successful implementation of States and 
territories, for example like the U.S. Virgin Islands.
    Are there some barriers that you have identified to 
broadband buildout and is there technical assistance that FCC 
would provide to overcome any of those barriers?
    Mr. Genachowski. There are barriers. Some of the barriers 
that we see are barriers that slow down infrastructure 
companies, wired and wireless, from building out quickly or 
that add costs. We took some steps in this area around tower 
siting; shot clock, to come back to the shot clock concept, we 
adopted one. We took steps in this area also with respect to 
pole attachments which will help reduce costs and lower the 
cost of broadband buildout.
    We are very interested in hearing from industry and 
stakeholders on other barriers that would be appropriate to 
address. One that has been brought to our attention are 
challenges around co-locating antennas on existing towers and 
unnecessary delays in that process. So that is something we are 
looking into now
    Mrs. Christensen. Thank you.
    Mr. Walden. I turn to the gentlelady from Tennessee, Mrs. 
Blackburn, for 5 minutes.
    Mrs. Blackburn. Thank you, Mr. Chairman.
    Commissioner McDowell mentioned an article by Randolph May, 
and, Mr. Chairman, I would like to submit that article for the 
record. I agree with the Commissioner. I read it and I thought 
it was very insightful.
    Mr. Walden. Without objection.
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    Mrs. Blackburn. Chairman Genachowski, I want to ask you, 
looking at the process you followed on net neutrality, I want 
to ask you about a Fortune magazine article, and you have 
affirmed in that article two different times that net 
neutrality rules were already in effect; so are these rules in 
effect?
    Mr. Genachowski. I think I may have been making the point 
that on a bipartisan basis, before I got to the Commission, the 
Commission had enforced net neutrality rules against companies. 
Rules were just part of the problem.
    Mrs. Blackburn. I hate to interrupt you, but I think what 
the reporter said, that means they are law. These are rules 
that have been written and are in effect. And your response was 
``yes.''
    What is interesting to me is that the FCC hasn't published 
the order in the Federal Register yet. So my question would be: 
What justification could there be for a 6-month wait or a delay 
unless the FCC is seeking further delay and legitimate rules by 
the courts or by Congress?
    Mr. Genachowski. I understand your question now. The rules 
are not in effect yet. They require publication in the Federal 
Register, and they have to go through an OMB process and a 
Paperwork Reduction Act process. These are not our processes. 
We are complying with the processes as quickly as we can.
    Mrs. Blackburn. Yes, I agree, and I think it would be 
appropriate to get our policies published in the Federal 
Register before we start implementing new rules, especially 
since the impact that those rules are going to have are, in my 
opinion, going to be damaging to the innovation and growth of 
the Internet.
    Let's look at the Comcast-NBCU order. It states that the 
Comcast and NBCU shall comply with all relevant FCC rules 
adopted by the Commission in GN docket No. 09-191, and I am 
referring to the FCC's Open Internet order and its unique 
application, this specific, on the merger conditions. Does the 
FCC believe that even if a court overturns the FCC's decision, 
that Comcast and Comcast alone will still be subject to these 
ex-judicial rules, and where does the FCC get that authority?
    Mr. Genachowski. The answer is yes. The authority comes 
from the language obliging us to make a public interest 
determination in approving transactions. This was a merger-
specific enforceable commitment that came out of the fact that 
this was a merger between the largest broadband company in the 
country, one of the largest content companies. We heard from 
many businesses saying that a specific harm from this 
transaction could be favoritism of some content over others.
    Mrs. Blackburn. Does the FCC have a responsibility to 
answer to the article 3 courts that by law review the FCC 
decisions?
    Mr. Genachowski. Of course.
    Mrs. Blackburn. OK. Let's talk about copyright protection. 
I support it, and I have supported voluntary cooperative 
efforts among the ISPs and content community to address 
infringement. And given the language specifically in paragraphs 
107 and 111 of your open Internet order, what assurances can 
the FCC give to the ISPs that they can enter into voluntary 
agreements with copyright owners to address these infringements 
online without running afoul of the net neutrality order?
    Mr. Genachowski. My recollection is that the order says 
pretty much that. That the rules apply only to lawful content, 
not unlawful content like stolen intellectual property, and 
that voluntary agreements to make enforcement of IP laws 
effective is something that is not prohibited by the rule.
    Mrs. Blackburn. I have to tell you, I think it would be 
helpful for the FCC to provide the companies assurances that 
they have reasonable discretion to address copyright 
infringement, and I hope that you will do that.
    Mrs. Blackburn. I only have 19 seconds left. I had another 
question about broadband pricing, but I will submit that for a 
written response.
    I yield back.
    Mr. Walden. We will get an answer from each Commissioner.
    Mr. Doyle has been kind enough to yield to the chairman 
emeritus of the Energy and Commerce Committee, Mr. Dingell.
    Mr. Dingell. Mr. Chairman, I thank you for your courtesy, 
and I thank you for the recognition. And I want to thank my 
good friend from Pennsylvania. There are many, many courtesies 
I have had at his hand.
    Commissioners, welcome to the committee. I want to express 
some distress at the delay in publication of the Commission's 
Open Internet order in the Federal Register. I understand, and 
clearly so, that this delay is more appropriately attributed to 
the Office of Management and Budget than to the FCC.
    Moreover, I wish to note for the record that the order was 
adopted on December 21, 2010, and the order's text was released 
to the public 2 days later on December 23. I want to commend 
the Commission for this display of transparency.
    There is, however, another type of delay that deprives the 
public of a thorough understanding of the Commission's 
decisions, and it does I think afford a marvelous opportunity 
for rascality. This is the delay that can occur between the 
time when the Commissioner adopts the report and order, and the 
date on which the text of that report and order is released to 
the public. A delay of this sort enables the staff to make 
revisions to the order in the dark of the night. It enables 
petitioners to seek and obtain tweaks in the agency's language. 
It is a decision-making that is subject to the charge that it 
is potentially the source of perhaps dishonest decision-making 
that ought not exist at the Commission.
    This type of delay has been the subject of this committee's 
attention in the past. As the Chairman and I were discussing 
yesterday, some 20 years ago in May of 1991, I engaged in an 
exchange of letters with the then-Commission Chairman Al Sikes.
    Mr. Chairman, I ask unanimous consent that copies of that 
correspondence be entered at this point in the record.
    Mr. Walden. Without objection, so ordered.
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    Mr. Dingell. With this history in mind, I am going to 
direct this question to you, Chairman Genachowski, and I am 
going to ask you if you would please do exactly what I asked 
Chairman Sikes to do in an earlier time. Would you please 
provide this committee with a list of the Commission's 
decisions where the text of the decision was released more than 
30 days after the Commission announced its decision, together 
with the best explanation you can make for the delay beginning 
on January 1, 2010? Would you do that for us, please?
    Mr. Genachowski. Yes, I will. I am happy to report that 
period, we have closed in the last 2 years, that period from an 
average of 14 days to 3 days. In most cases, release is 1 day 
after Commission adoption of the order.
    Mr. Dingell. Thank you.
    Now, I recognize that the 30-day period which was referred 
to in my questions is arbitrary and it does not respond to 
either statute or regulation. It does seem to me that a delay 
of 30 days or more does provide opportunity for impropriety, 
and I would urge the Commission to comment on this opinion for 
the record, especially in view of all of our desires to improve 
the transparency at the Commission and this committee's ability 
to conduct rigorous oversight.
    Now, in the case of decisions whose release is delayed for 
30 days or more, does the Commission commit at this time to 
providing this committee with a written explanation of the 
delay and projected date for the release?
    Mr. Genachowski. Yes.
    Mr. Dingell. Now, I want to make it clear, we have to make 
a selection here between two situations, the first of which is 
where the Commission releases the decision and there is a delay 
between the time that the matter is then made final. There also 
is the situation--and this I know afflicts the Commission 
substantially, and that is, you have sent things over to the 
Office of Management and Budget which duly forgets that you are 
an independent agency of the Congress and insists that these 
matters be held up over whatever qualm the Administration may 
have on the matter.
    So in any event, Mr. Chairman and members of the 
Commission, I thank you.
    Mr. Chairman, I thank you for your courtesies to me. I 
yield back the balance of my time.
    Mr. Walden. I thank the gentleman for his questions and his 
willingness to work on these issues to improve the process at 
the FCC.
    Now I turn to the gentleman from Florida, Mr. Stearns, for 
5 minutes.
    Mr. Stearns. Thank you, Mr. Chairman.
    Chairman Genachowski, this is a question for you, if you 
can recollect this. I think we have already talked about the 
Commission's backlog. How many petitions or applications are 
currently pending before the Commission?
    Mr. Genachowski. That is a number I don't have in my head. 
I will get it for you.
    Mr. Stearns. Can you guess? Give an approximate range? When 
we do financial disclosure, we have a range.
    Mr. Genachowski. There are many small ones. The number is 
in the thousands, not in the tens.
    Mr. Stearns. Do you have staff behind you that might know? 
These staff, that is what they are paid for.
    Mr. Walden. They are texting somebody right now.
    Mr. Genachowski. We will get an answer within 5 minutes.
    Mr. Stearns. OK. How many of these are more than 6 months 
old?
    Mr. Genachowski. That is another question I can't answer 
off the top of my head.
    Mr. Stearns. OK. How many are more than 2 years old; 5 
years old? Do you think any of them are older than 2 years?
    Mr. Genachowski. It is possible some of them are.
    Mr. Stearns. Any over 5 years?
    Mr. Genachowski. I don't know, but it is possible.
    Mr. Stearns. We have heard that parties with a transaction 
before the FCC sometimes feel pressure to curtail their 
advocacy in unrelated proceedings. I guess my question is: 
Fundamentally, do you agree that every constituency should be 
free to advocate before the Commission without any pressure?
    Mr. Genachowski. Absolutely. Can I say one word on the 
previous question?
    Mr. Stearns. Yes. I hear all the time that people are 
totally intimidated by you folks, and I can understand why, 
because a decision by you folks is not just a hundred-dollar 
decision, it is billions. So you have this much power. They 
come back to me, a lot of them are intimidated, so they want to 
be free to be an advocate before the Commission without 
pressure.
    Mr. Genachowski. On this question, the Commission has an 
obligation to base each decision that it makes on the issues 
before it, on facts and data. We are all very committed to 
that.
    On the previous issue, there is an area for reform here 
that I would like to mention briefly, which is that a lot of 
the backlog comes from applications for review of relatively 
routine bureau decisions that are made. Because of the APA, 
sometimes it is thought that it requires the Commission to do 
its work all over again in order to address it in advance of 
litigation.
    We have been exploring some reforms here to speed this up 
and to help eliminate the backlog that relates to applications 
for review from bureau orders. That is something I look forward 
to working on with you and the committee.
    Mr. Stearns. Commissioner McDowell, you touched on in your 
opening statement, and I looked at some of your letters you 
have written in the past, the FCC's transaction review 
standards I think are vague and sometimes susceptible to abuse. 
For example, parties with a pending transaction should not feel 
pressure to accept voluntary conditions on the deal. The 
Commission can also leverage its merger review process to adopt 
conditions that it could not otherwise impose through a 
transparent and public rulemaking.
    My question for you is: How can we narrow the Commission's 
authority to simply address these concerns?
    Mr. McDowell. That can come through a statutory change, as 
has been pointed out today already. There is a large, ambiguous 
public interest standard by which we review mergers. But if a 
statutory provision were added to say any conditions or 
voluntary commitments extracted from the merging companies 
should be specifically tailored to consumer harm that arises 
out of the merger, and perhaps look into maybe sunsetting them 
once market conditions obviate the need for any further 
regulation.
    Mr. Stearns. Mr. Chairman, do you want to add to that at 
all?
    Mr. Genachowski. In the Communications Act, Congress has 
placed an important responsibility on the FCC to make a public 
interest determination, to find that a proposed transaction is 
in the public interest. That is something we take very 
seriously. I think all Commissioners do. It is understandable 
why companies would suggest the public interest reasons for a 
transaction. Sometimes there are specific potential harms that 
emerge from a transaction that in order to approve the 
transaction, it is necessary to impose conditions. This has 
happened under Democrats and Republicans at the FCC.
    Mr. Stearns. My last question, Mr. Chairman, is to 
Commissioner McDowell. Again, I am concerned that the FCC has 
been regulating in areas without first clearly identifying its 
own authority to act. From voice obligations, net neutrality, 
to broadband outage reporting, the FCC has fallen into the 
habit of proposing rules without first tying those rules to the 
authority given to it by the Communications Act. I know every 
bill I drop, I have to show constitutionally that that bill 
complies with the Constitution. What best practices would you 
recommend going forward based on what I just told you?
    Mr. McDowell. The Commission in areas where I have 
dissented certainly has made legal arguments justifying its 
legal authorities. I can't think of an item that didn't have a 
legal argument. But as lawyers know, there are legal arguments 
that are colorable, and there are legal arguments that are 
winnable. This is fine grades of distinction sometimes. It is 
hard to say how do you keep the FCC to act within its authority 
other than read the statute and the plain meaning of it.
    Mr. Stearns. Mr. Chairman?
    Mr. Genachowski. Two points. In the last few years, the FCC 
record in court on statutory challenges has been overwhelmingly 
positive. I don't remember the number of the top of my head, 
but I will get it for you. But overwhelmingly successful.
    The second thing is, when there are colorable questions of 
authority, we seek comment on that in the notice and comment 
stage. We did it yesterday in looking at updating our network 
outage rules to protect the safety of the public in event of 
emergencies. There is a colorable question about authority. We 
will be looking at that carefully in the record.
    It is vital that we move forward on public safety issues 
like that, working together with the committee. If we don't 
think we have the authority, we will come to you and ask for 
the authority. But getting a public record and asking our 
terrific legal team to focus seriously and honestly on the 
authority issues is what we try to do.
    Mr. Walden. I thank the gentleman from Florida.
    I now turn to the gentleman from Pennsylvania, Mr. Doyle.
    Mr. Doyle. Thank you, Mr. Chairman. Thank you for holding 
this hearing.
    Welcome to the members of the Commission. I have had the 
opportunity to work with each and every one of you, and I have 
appreciated your hard work and dedication. All of you are very 
good members of the Commission.
    Commissioner Copps, I know your term is expiring this year 
and I just want you to know that if I were the benevolent 
dictator of the universe, as scary as that thought may be, your 
term would have no expiration date. Thank you for your service 
to the Commission. You have been one of the best ever.
    Now, Chairman Genachowski, I can't pass up the opportunity 
while I have got you all here. As you know, just recently the 
House and Senate passed, and the President signed into law, the 
Local Community Radio Act last year. And this is legislation 
that is going to open up the airwaves for hundreds of new low-
power radio stations across the country, including community 
radio stations in cities like Pittsburgh and all across the 
United States.
    Mr. Chairman, I know the Commission is working on it, but I 
want to make sure that the draft rules are going to come out by 
the end of the spring. Could you give us a sense of timing on 
this?
    Mr. Genachowski. First of all, congratulations on the 
passage of the legislation. Bipartisan, very important, and we 
are working to implement it as quickly as possible because we 
think it is a real achievement and will really help the local 
communities. Our media bureau is working on it. I will redouble 
my efforts to make sure that it happens as quickly as possible.
    Mr. Doyle. I want to piggyback on some questions that Ms. 
Eshoo talked about with special access to. I have always 
thought that name ``special access'' is a misnomer. It should 
be called ``critical access.'' I note that your broadband plan 
agrees with that. I have real concerns about the affordability 
of these lines as report after report comes out, whether it is 
the GAO or the national broadband plan or others, that indicate 
that the sellers of these lines are continuing to overcharge 
their competitors.
    Quite frankly, the FCC, it has been rather frustrating to 
get you to address this question. It has taken quite a long 
time to come to a decision on the matter, and I am just trying 
to understand what is causing this delay, and when do you think 
that you will obtain the information that you need to finally 
bring a vote to the Commission? Please don't tell me ``as soon 
as possible.'' Give me something more definitive than that.
    Mr. Genachowski. My frustration was that when I arrived at 
the Commission and we started to look into this issue, the 
paucity of data that the FCC had was very troubling. There is 
no point to doing something in this area that is not based on a 
record, that is not based on facts and data, and that wouldn't 
be upheld in court. We also didn't want to put out a broad data 
request that, one, would be burdensome on industry; but, even 
more important, would not be manageable for us because it is a 
very complex area.
    And I think our team did a fantastic job working in a 
focused way to identify the data that we would need to be able 
to make a determination on whether there is an issue that 
requires us to act; and if so, what an appropriate action to 
take would be.
    We are still in that process. We have completed the first 
round of data coming in. The staff is analyzing that. We will 
continue to work with you on it. But I agree with with you on 
the importance of this issue, and we are working very 
diligently on it.
    Mr. Doyle. By next year? By 2030?
    Mr. Genachowski. Well before that.
    Mr. Doyle. Well before 2030?
    Mr. Genachowski. I agree with you. I can't say because we 
are analyzing the data, and I don't want to prejudge it. I want 
the staff to do its job as fast as it can because it is an 
important issue that goes to competition and broadband 
deployment.
    Mr. Doyle. Do any other Commissioners have a comment on 
special access?
    Mr. Copps. I think it is important for us to get to a final 
resolution. When you are talking about a market that is 
approaching tens of billions of dollars a year, and you add in 
there however many years this has been pending, and you think 
are companies going out of business, is competition being 
disrupted, it instills in me the same sense of urgency that you 
have.
    Mr. McDowell. Absolutely. I have been at the Commission 
almost 5 years, and it is sort of like Groundhog Day on special 
access. We are coming up on the fourth anniversary of 
Congressman Markey's letter to the Commission insisting that we 
have some resolution by September of 2007. It is now 2011.
    Really what we need, as I have been saying for almost 5 
years now, is cell site by cell site, building by building map 
with price, terms, and conditions of all providers of special 
access, competitive providers as well as incumbent providers. 
This isn't as hard as it seems. The DOJ gathered this data in 
2005 during the Bell long distance mergers, and it is really 
not as daunting as it sounds.
    Legally there might be an issue whether you can compel 
certain companies to provide that data, and that is where the 
problems have been. A lot of companies know that they don't 
have to provide the data; it might be competitively sensitive, 
things of that nature. But if you go to an industry trade show, 
business-to-business trade show, they are buying and selling 
special access circuits from each other. So all of the sales 
guys have this data. It is not that hard to find. But that 
would give us, let's get a real-time snapshot of what does the 
market actually look like. I think where there is more 
competition in a market, we ought to deregulate. And if there 
is not enough competition, then we need to figure out what to 
do.
    Mr. Doyle. Commissioner Clyburn?
    Ms. Clyburn. I agree with my colleagues. One of the first 
meetings that I took as a Commissioner dealt with special 
access. When these same parties see me, they look at me and we 
don't even have to exchange words. So I agree with you about 
the urgency. And especially being from a rural State, I agree 
that this is a significant barrier for enhanced service. I am 
looking forward to continuing to working with the Chairman in 
order to get resolution here.
    Mr. Doyle. Thank you.
    Thank you, Mr. Chairman.
    Mr. Walden. Thank you for your work on these issues, Mr. 
Doyle.
    We are going to do a second round of questions.
    There are a couple of things I would like to go through. 
First, the top seven best hits of our memo, some of the ideas 
we kicked out there, and I would draw your attention to the 
staff majority memo, if you have it. If not, if you can give us 
your feedback on these seven items.
    From the outset, I am not trying to lock you into stupid 
restrictions, but I am trying to figure out is there a way to 
put in the statute good things, some of which Chairman 
Genachowski has already enacted as Chairman or you have 
codified in your rules, so regardless who is chairing this or 
regardless of the personality dynamics that may occur, 5, 8, or 
10 years from now, the good processes are there for the public? 
So I throw that out.
    So the notion, and I know this doesn't work well, but yes 
or no, the concept with flexibility built around all of these, 
trying to go to notices of inquiry before NPRMs; does that make 
sense? Does that not make sense? Commissioner Clyburn?
    Ms. Clyburn. Yes or no, hmm. I think when the Commission 
needs more information, yes, it is warranted. But we are in the 
information exchange business. We have public notices and the 
like, and so we get a lot of information. When we need more 
information, then yes. But in the case where we don't, where we 
have sufficient information, I think it would delay the 
process.
    Mr. Walden. Commissioner McDowell?
    Mr. McDowell. Yes, with flexibility that can't be abused.
    Mr. Copps. Yes, usually; but always remember there are 
crises and emergencies, terror attacks and things that demand 
expeditious action when you can't do that.
    Mr. Genachowski. I would say as a general rule, we do it. 
There are many exceptions. It might be a statutory mandate. It 
might be further notice. It might be court remand. It might be 
that we have enough information to proceed. I am not sure that 
a statutory change is required.
    Mr. Walden. That is fair.
    Publishing the proposed rules, you don't always publish a 
text for public comment before adopting the public rules. 
Should the proposed rules always be published ahead? Chairman 
Genachowski, yes or no?
    Mr. Genachowski. That has been our policy. We have gone 
from 38 percent to 85.
    Mr. Walden. Any reason not to go to 100?
    Mr. Genachowski. There are some cases where it might be a 
form or it might be a further notice where the rules are 
already out, or it might be that we are seeking comment on a 
third party's proposals. Our practice is that we always need a 
good reason in order not to publish proposed rules.
    Mr. Copps. You know, sometimes people don't get serious 
about we are doing something until you get beyond, well into 
the NPRM stage, and then they get serious and tell you what 
they like. So it is not always practical to do that. New data 
comes in, and again I would say flexibility for emergencies and 
things like that, but I would commend the Chairman on the 
tremendous difference we have made in making sure that we do 
now over 85 percent of the time.
    Mr. Walden. Mr. McDowell.
    Mr. McDowell. Yes, with flexibility that can't be abused.
    Mr. Walden. Commissioner Clyburn.
    Ms. Clyburn. Yes, flexibility that takes into account any 
type of public comments.
    Mr. Walden. Got it. What about minimum comment periods? 
Statutory minimums for comment reply cycles, does that make 
sense? Ms. Clyburn?
    Ms. Clyburn. I think if there are statutory obligations 
involved, they might be problematic. With our video relay, 
Video Accessibility Act, we had a 6-month window. So if you had 
certain obligations, that might impede that progress. So again, 
flexibility and dexterity are my two words for the day.
    Mr. Walden. Commissioner McDowell?
    Mr. McDowell. Yes, with flexibility that can't be abused.
    Mr. Walden. Commissioner Copps?
    Mr. Copps. The same response.
    Mr. Genachowski. I agree as well. The real issue is making 
sure that the Commission pursues best practices, and we look 
forward to working with you on that.
    Mr. Walden. What about shot clocks? Parties and the public 
should have some sense of when resolution would come. Hard shot 
clocks or shot clocks as a report card mechanism, gives you the 
flexibility, but you maybe report to Congress on your rates of 
trying to achieve those shot clock numbers?
    Again I am not trying to tie your hands, but I think there 
are issues in the past, in some cases, where things dragged on. 
I talked to a group recently, they have had a rulemaking for 6 
years at the Commission. It was circulated last fall, I 
believe, and it is still in somebody's in-boxes.
    Mr. Genachowski. I think shot clocks may be an effective 
tool. We are using it. It may make sense to use more shot 
clocks. And we are looking at that, and we look forward to 
looking at that with you.
    Mr. Walden. Commissioner Copps.
    Mr. Copps. Amen.
    Mr. McDowell. Shot clocks helped break the UNC Chapel Hill 
monopoly on basketball; I am all for that.
    Mr. Walden. Wow.
    Ms. Clyburn. I always come behind him, and it is always 
problematic.
    All transactions are not created equal; so again, 
guidelines but not ruling the process is, I think, wise.
    Mr. Walden. OK. What about publication of final draft for 
an item scheduled for an open meeting? The FCC could be 
required to make final draft public a certain amount of time in 
advance so everyone knows precisely what the Commissioners are 
being asked to vote upon?
    Mr. Genachowski. I have always been troubled by the logical 
impossibility of this because there is a draft, there is more 
input. The draft changes. It gets put out again. And you end up 
in something where it is actually impossible for the agency to 
act effectively. The APA process is designed to do this, do a 
notice, put out rules, get comment, the agency deliberates, 
makes a decision. It is subject to further review. I think that 
general process works.
    Mr. Copps. People should know generally and have a clear 
idea, but you can't keep doing this time and time again until 
you get the last ``t'' crossed and last ``i'' dotted. At some 
point we have to be, in the phrase of well-known persons, the 
deciders on these issues.
    Mr. Walden. Mr. McDowell.
    Mr. McDowell. More often than not, it is a good idea.
    Ms. Clyburn. I would not want anything to stifle any type 
of exchange that could possibly take place in the improvement 
of an item.
    Mr. Walden. What draws me to this one is what we did to 
change our House rules, require a 3-day calendar day layover so 
everyone has a chance to see it. And sometimes that is 
inconvenient if you want to cram something through. But it is 
the public's business and public process. That is all I am 
talking about. It would seem to me, you would want them to see 
the final product and have a little time to comment.
    With the indulgence of the committee, if I can go through 
the remaining couple of items here.
    Commissioner initiation of items. The Chairman, CEO 
controls the agenda, but what about having a bipartisan group 
of Commissioners being able to weigh in and put items on? I 
know we went through this earlier, but let us see if 
Commissioner Clyburn has been swayed by the incredible evidence 
that has come out during the hearing.
    Ms. Clyburn. Thank you, but no.
    Mr. Walden. You don't want to be able to help set the 
agenda?
    Ms. Clyburn. I think I do that. I have that type ofrapport.
    Mr. Walden. You weren't there in the old days. Commissioner 
McDowell?
    Mr. McDowell. Yes. I have supported this kind of concept 
when I was in the majority on the Commission, and I support it 
today.
    Mr. Walden. Commissioner Copps?
    Mr. Copps. I would just repeat what I said. I think three 
Commissioners ought to have the ability to put an item on the 
agenda, take an item off the agenda, and edit the agenda.
    Mr. Genachowski. As I said, I think nothing is broken; 95 
percent of our decisions are unanimous. We work 
collaboratively. I can't imagine a situation where there would 
be a problem, and there has only been one anomaly that I am 
aware of historically.
    Mr. Walden. I will stop with that. There are some others 
here. I think you all have this. The committee has been very 
kind to let me work through those.
    We would like your feedback on them. We kicked these out as 
discussion points. Some make sense, and some don't from a 
statutory standpoint. Some you can go ahead and do, and you 
are. And I appreciate that.
    I would turn now to the gentleman from Massachusetts, the 
always colorful Mr. Markey.
    Mr. Markey. I will take that as a compliment.
    Mr. Walden. As intended.
    Mr. Markey. Welcome, all. We are at an historic juncture. 
There is now an announced plan by AT&T to buy T-Mobile for $39 
billion in the latest in a series of major transactions at the 
Commission for you to review, pursuant with your authority.
    The merger would reduce the number of national wireless 
companies from four down to three, and then the next step would 
be the inevitable gobbling up of Sprint by Verizon, so we would 
be back down to two, which would be kind of going into the 
telecommunications time machine back to 1993 before this 
committee wisely decided that the two companies that had all of 
the licenses, one of them was the progeny of AT&T, all of the 
regional companies had one license, and other people had the 
other one, McCaw significantly, but it was 50 cents a minute. 
It was analog. It was not a particularly robust marketplace. 
And people did not have cell phones in their pocket.
    So I thought it would be good if we looked back through the 
mists of mobile time so we can understand where we were, how we 
got here, and why we really don't want to go back at all. This 
isn't even an open question because we had more than enough 
time to learn how big companies view how fast you can move in 
the deployment of mobile technologies.
    So back in October of 1993, on a bipartisan basis, it was a 
beautiful thing; the general disgust that this committee had 
with the lack of progress in the mobile area led us to moving 
over 200 megahertz of spectrum for the creation of a third, 
fourth, fifth and sixth license.
    You two big boys, you really don't need any more unless it 
is in a market you are not in anymore. So that was kind of our 
message.
    They weren't particularly happy with it. In fact, the 
general who ran all spectrum for the Federal Government for the 
Defense Department, he wasn't happy with it either. But we told 
them all: Figure it out; you, know, do your best, but we need 
that spectrum. We need a robust marketplace. We want to move 
and be number one.
    So we had this incredible breakthrough, and we moved from 
50 cents a minute. Within 4 years, it was under 10 cents a 
minute. All of the companies, including the two incumbents, had 
to go digital, which is much more versatile. It was quite a 
transformation.
    If you can imagine, here is where we were when we passed 
the bill. We had this brick. Anyone remembering carrying this 
around in your pocket? This is the brick. And by 1996, we had 
moved to the BlackBerry. Brick to BlackBerry, 4 years. This 
committee, a lot of insight.
    Those first two companies, they really didn't think that 
they wanted to move this fast. As a matter of fact, they told 
us in testimony they couldn't move this fast. It just wasn't 
going to be a general consumer product. They were targeting 
businessmen on mountaintops, I think. So that was it. Again, 
their message was, don't regulate.
    So the question is: Do we want to turn the clock back to 
that duopoly? Do we want to go back to the brick in terms of 
how fast companies are forced to innovate? Do we want to trust 
those two companies again to move faster? I don't think we want 
to do that.
    I think it would be a historic mistake for the FCC to 
approve this merger. I think we would go into a 
telecommunications time machine, back to that point in time. We 
already have got Verizon and AT&T pretty much dividing the 
country into Bell East and Bell West, which is the plan. 
Letting them have a national wireless duopoly is what is at 
stake here.
    I have seen the movie before. I know how it ends for 
consumers, with them being tipped upside down and having money 
shaken out of their pockets.
    We are the ones in this committee that made sure that we 
ended that era. I think it is critical for the FCC to apply its 
own very brief history on this subject. You know, this is not 
something where we have to go back to Alexander Graham Bell. 
There are people within our own lifetime we can go back to. 
They are still alive. They were here in 1993. They can still be 
consulted about what the state of that marketplace was.
    All I can tell you, it would be a historic mistake to go 
back to that time with the promises that come from two 
behemoths that they will continue to innovate. History tells 
us, after 100 years from Alexander Graham Bell up until 1993, 
they do not innovate. And that is the key. It is innovation and 
it is investment in new technology and it is paranoia-driven 
Darwinian competition that ultimately leads to the changes that 
help consumers and competitors.
    And I hope you all keep that in mind as you are going 
forward, because this is going to be the biggest decision you 
make, and I hope you make the right one.
    Thank you, Mr. Chairman.
    Mr. Walden. I thank the gentleman. I would remind members 
of the committee that we have to be a little careful since this 
is a decision before them when it comes to the Pillsbury rule 
and all.
    Mr. Markey. Are we in the Pillsbury time right now?
    Mr. Walden. Back to the BlackBerry.
    Mr. Markey. Excuse me? Was that a question?
    Mr. Walden. No. They are going back to the BlackBerrys to 
find out.
    Mr. Markey. Are we in the Pillsbury time? Are we 
constricted in our committee hearings from expressing our views 
on a merger?
    Mr. Walden. Not your views.
    Mr. Markey. Yes.
    Mr. Walden. And I am not an attorney. I think there are 
issues. It was suggested in another hearing in another context 
with an issue before a Commission that we have to be careful in 
terms of how we convey our thoughts is all, I was told.
    Mr. Markey. I am a lawyer.
    Mr. Walden. I won't hold that against you.
    Mr. Markey. And I think there are lawyers down there. Can 
the staff assist? I think the staff is packed with lawyers. Are 
we in the Pillsbury time frame right now?
    Mr. Walden. That is what I said, they are going to their 
BlackBerrys.
    Meanwhile, we will proceed and go to Ms. Eshoo for 5.
    Ms. Eshoo. Thank you, Mr. Chairman.
    While the lawyers are going back and forth, I don't know a 
time where Members cannot express an opinion. Mr. Markey is not 
asking the Commissioners for their thinking on the matter that 
he just raised. He expressed his opinion. And so God help us if 
Members of Congress can't come in as members of a committee and 
express an opinion. I understand that there is--that Mr. 
Markey's opinion may be menacing to some, but nonetheless--or 
discomforting--but it is an opinion. I think it is an important 
opinion.
    Whether Pillsbury or anything else gets in the way here, I 
am not a lawyer to make that determination, but I don't think 
that is the question, most frankly.
    Chairman Genachowski, some have expressed concerns recently 
that the FCC has shied away from using a notice of inquiry to 
first examine a broad set of issues rather than proceeding 
straight with the proposed rules in a notice of proposed 
rulemaking. Do you think that proceeding with notices of 
inquiry can be an effective approach, and have you employed the 
NOIs more often under your chairmanship compared to previous 
administrations?
    Mr. Genachowski. We have used NOIs frequently. I think 
about half of our notices of proposed rulemakings have been 
preceded by NOIs. And often, especially when it is a new issue 
or fresh issue, it is a good place to start. When we are 
dealing with a statutory mandate to implement something, when 
the Commission has vast experience coming out of prior 
proceedings, when there are real timeliness issues around 
perhaps public safety, then NOIs may not be the way to go. And 
I think we try to be thoughtful about, with each proceeding, 
how to get the balance right between developing a full, 
inclusive public record and moving in an expeditious manner for 
the public and all stakeholders.
    Ms. Eshoo. But do you believe that an NOI must precede any 
proposed rulemaking?
    Mr. Genachowski. I don't think that it is now a requirement 
or should be a firm requirement.
    Ms. Eshoo. I don't have any other questions, Mr. Chairman. 
I do think, if I might, the list of suggestions that you had 
today, your punch list, that we have the Commissioners all 
respond to them.
    Mr. Walden. Yes. I actually asked them to do that. I agree.
    Ms. Eshoo. I didn't hear that. I think it would be helpful, 
after you have had some time to give some thought to it, that 
we hear back from each one of you on them. Thank you.
    Mr. Walden. I turn now to Mr. Doyle, if he has any further 
questions.
    Mr. Doyle. Mr. Chairman, in the interest of eating lunch, I 
have no further questions.
    Mr. Walden. With that then, I want to thank both of our 
committee members who participated so well in this committee 
hearing, and especially the FCC Commissioners and the Chairman. 
Thank you for your thoughtful approach to this. We look forward 
to continuing to work with you on a cause that I know we share, 
which is to continue to improve----
    Mr. Markey. Mr. Chairman, before you conclude, has the 
Commission staff been able to identify whether or not a 
Pillsbury--OK, not yet.
    Mr. Walden. Do you want us to wait until they get an answer 
or can we go ahead and adjourn? I think we will go ahead and 
adjourn the hearing.
    Mr. Markey. You raised the issue, and it was in the 
aftermath of my comments, and I just wanted to know if my 
congressional prerogatives are in any way contradicted by any 
prerogatives of the FCC. If they are, I want all the members of 
the committee to know how we are all restricted in terms of our 
recommendations to the Commission, and I just don't want the 
committee hearing to end until that is established because that 
is quite a statement made to me.
    Mr. Walden. No, let's not overtake what I said, OK. What I 
said was I just would caution the committee, this is an issue 
before the Commission and we have to be cognizant of these 
rules. This was not a criticism of what you said. And we each 
have the opportunity to express our views. That is not about 
that. This was not about you or about what Ms. Eshoo said. We 
will probably have a hearing on this issue, and rightfully so.
    I just know in a different subcommittee with an issue 
before the Nuclear Regulatory Commission that is before them, 
we were advised not to try and affect the Commission's decision 
in that process because it is something before them. So this 
was in general context. That is all it was.
    Mr. Markey. If the gentleman would yield, is the intention 
of the hearing which you are going to have to in any way affect 
the decision made by the FCC?
    Mr. Walden. Not if it violates the Pillsbury rule.
    Mr. Markey. No, you are saying if it does not violate the 
Pillsbury rule. Do you know if that hearing will violate the 
Pillsbury rule?
    Mr. Walden. I won't hold it until I find out the answer to 
that question.
    Mr. Markey. OK, I think that is an important thing for you 
to say. So rather than saying you are going to have the 
hearing, you should say: I am going to have the hearing if it 
is not a violation of the Pillsbury rule, because I don't want 
any member of this committee to influence the way in which any 
member of the FCC thinks. OK? If that is the opposition going 
forward, I can live with that. In fact, if that is our 
committee policy, then I would like to have that established so 
I know that and every other member knows that.
    Mr. Walden. Yes. Slow down. Take a breath. Here is the 
deal.
    Mr. Markey. I am not the person who made the accusation 
that there is a potential Pillsbury violation.
    Mr. Walden. Nor did I.
    Mr. Markey. Yes, you did.
    Mr. Walden. No, that was not my intent. I would be happy to 
go back and listen.
    Mr. Markey. Let me put it like this: It was the effect. If 
it was not the intent, it had that effect.
    Mr. Walden. All right. That was not my intent. If it was 
assumed that way, I take that back. That was never my intent. I 
am just trying to do something cautiously here and not get 
anybody in any trouble.
    And when we have a hearing, we might not have the 
Commissioners before us. When they are not before us, I think 
we are pretty open in what we can say, right? That is all. That 
is all that it is.
    With no other business to come before the subcommittee, we 
are adjourned.
    [Whereupon, at 1:06 p.m., the subcommittee was adjourned.]
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