    [House Hearing, 114 Congress]
    [From the U.S. Government Publishing Office]

              FCC AUTHORIZATION: IMPROVING COMMISSION TRANSPARENCY

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

                                    HEARING

                                   BEFORE THE

                 SUBCOMMITTEE ON COMMUNICATIONS AND TECHNOLOGY

                                     OF THE

                        COMMITTEE ON ENERGY AND COMMERCE
                            HOUSE OF REPRESENTATIVES

                        ONE HUNDRED FOURTEENTH CONGRESS

                                 FIRST SESSION
                                   __________

                                 APRIL 30, 2015
                                   __________

                               Serial No. 114-37

      [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

          Printed for the use of the Committee on Energy and Commerce

                            energycommerce.house.gov
                                         ______

                        U.S. GOVERNMENT PUBLISHING OFFICE

    96-284                       WASHINGTON : 2016
    -----------------------------------------------------------------------
      For sale by the Superintendent of Documents, U.S. Government Publishing
      Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800;
             DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC,
                              Washington, DC 20402-0001

                        COMMITTEE ON ENERGY AND COMMERCE

                              FRED UPTON, Michigan
                                     Chairman
    JOE BARTON, Texas                    FRANK PALLONE, Jr., New Jersey
      Chairman Emeritus                    Ranking Member
    ED WHITFIELD, Kentucky               BOBBY L. RUSH, Illinois
    JOHN SHIMKUS, Illinois               ANNA G. ESHOO, California
    JOSEPH R. PITTS, Pennsylvania        ELIOT L. ENGEL, New York
    GREG WALDEN, Oregon                  GENE GREEN, Texas
    TIM MURPHY, Pennsylvania             DIANA DeGETTE, Colorado
    MICHAEL C. BURGESS, Texas            LOIS CAPPS, California
    MARSHA BLACKBURN, Tennessee          MICHAEL F. DOYLE, Pennsylvania
      Vice Chairman                      JANICE D. SCHAKOWSKY, Illinois
    STEVE SCALISE, Louisiana             G.K. BUTTERFIELD, North Carolina
    ROBERT E. LATTA, Ohio                DORIS O. MATSUI, California
    CATHY McMORRIS RODGERS, Washington   KATHY CASTOR, Florida
    GREGG HARPER, Mississippi            JOHN P. SARBANES, Maryland
    LEONARD LANCE, New Jersey            JERRY McNERNEY, California
    BRETT GUTHRIE, Kentucky              PETER WELCH, Vermont
    PETE OLSON, Texas                    BEN RAY LUJAN, New Mexico
    DAVID B. McKINLEY, West Virginia     PAUL TONKO, New York
    MIKE POMPEO, Kansas                  JOHN A. YARMUTH, Kentucky
    ADAM KINZINGER, Illinois             YVETTE D. CLARKE, New York
    H. MORGAN GRIFFITH, Virginia         DAVID LOEBSACK, Iowa
    GUS M. BILIRAKIS, Florida            KURT SCHRADER, Oregon
    BILL JOHNSON, Missouri               JOSEPH P. KENNEDY, III,
    BILLY LONG, Missouri                     Massachusetts
    RENEE L. ELLMERS, North Carolina     TONY CARDENAS, California
    LARRY BUCSHON, Indiana
    BILL FLORES, Texas
    SUSAN W. BROOKS, Indiana
    MARKWAYNE MULLIN, Oklahoma
    RICHARD HUDSON, North Carolina
    CHRIS COLLINS, New York
    KEVIN CRAMER, North Dakota
                 Subcommittee on Communications and Technology

                              GREG WALDEN, Oregon
                                     Chairman
    ROBERT E. LATTA, Ohio                ANNA G. ESHOO, California
      Vice Chairman                        Ranking Member
    JOHN SHIMKUS, Illinois               MICHAEL F. DOYLE, Pennsylvania
    MARSHA BLACKBURN, Tennessee          PETER WELCH, Vermont
    STEVE SCALISE, Louisiana             JOHN A. YARMUTH, Kentucky
    LEONARD LANCE, New Jersey            YVETTE D. CLARKE, New York
    BRETT GUTHRIE, Kentucky              DAVID LOEBSACK, Iowa
    PETE OLSON, Texas                    BOBBY L. RUSH, Illinois
    MIKE POMPEO, Kansas                  DIANA DeGETTE, Colorado
    ADAM KINZINGER, Illinois             G.K. BUTTERFIELD, North Carolina
    GUS M. BILIRAKIS, Florida            DORIS O. MATSUI, California
    BILL JOHNSON, Missouri               JERRY McNERNEY, California
    BILLY LONG, Missouri                 BEN RAY LUJAN, New Mexico
    RENEE L. ELLMERS, North Carolina     FRANK PALLONE, Jr., New Jersey (ex
    CHRIS COLLINS, New York                  officio)
    KEVIN CRAMER, North Dakota
    JOE BARTON, Texas
    FRED UPTON, Michigan (ex officio)

                                 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...........................................     3
    Hon. Anna G. Eshoo, a Representative in Congress from the State
      of California, opening statement...............................    11
    Hon. Marsha Blackburn, a Representative in Congress from the
      State of Tennessee, opening statement..........................    13
    Hon. Frank Pallone, Jr., a Representative in Congress from the
      State of New Jersey, opening statement.........................    14
    Hon. Fred Upton, a Representative in Congress from the State of
      Michigan, prepared statement...................................    81

                                   Witnesses

    Tom Wheeler, Chairman, Federal Communications Commission.........    17
        Prepared statement...........................................    20
        Answers to submitted questions...............................    91
    Michael O'Rielly, Commissioner, Federal Communications Commission    37
        Prepared statement...........................................    39
        Answers to submitted questions...............................   105

                               Submitted Material

    Discussion drafts................................................     5
    Letter of April 30, 2015, from public interest groups to the
      subcommittee, submitted by Mr. Walden..........................    82
    Letter of April 30, 2015, from former FCC commissioner Reed Hunt
      to the committee, submitted by Ms. Eshoo.......................    85

              FCC AUTHORIZATION: IMPROVING COMMISSION TRANSPARENCY

                                  ----------

                            THURSDAY, APRIL 30, 2015

                      House of Representatives,
         Subcommittee on Communications and Technology,
                              Committee on Energy and Commerce,
                                                        Washington, DC.
        The subcommittee met, pursuant to notice, at 2:07 p.m., in
    room 2123, Rayburn House Office Building, Hon. Greg Walden
    (chairman of the subcommittee) presiding.
        Present: Representatives Walden, Latta, Barton, Shimkus,
    Blackburn, Scalise, Lance, Guthrie, Olson, Pompeo, Kinzinger,
    Bilirakis, Johnson, Long, Ellmers, Collins, Cramer, Eshoo,
    Welch, Yarmuth, Clarke, Loebsack, Matsui, McNerney, and Pallone
    (ex officio).
        Staff Present: Ray Baum, Senior Policy Advisor for
    Communications and Technology; Sean Bonyun, Communications
    Director; Karen Christian, General Counsel; Andy Duberstein,
    Deputy Press Secretary; Gene Fullano, Detailee, Telecom; Kelsey
    Guyselman, Counsel, Telecom; Charles Ingebretson, Chief
    Counsel, O&I; Grace Koh, Counsel, Telecom; David Redl, Counsel,
    Telecom; Charlotte Savercool, Legislative Clerk; Macey Sevcik,
    Press Assistant; Christine Brennan, Minority Press Secretary;
    David Goldman, Minority Chief Counsel, Communications and
    Technology; Lori Maarbjerg, Minority FCC Detailee; Margaret
    McCarthy, Minority Senior Professional Staff Member; Tim
    Robinson, Minority Chief Counsel; and Ryan Skukowski, Minority
    Policy Analyst.

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

        Mr. Walden. We will call to order the subcommittee on
    Communications and Technology for our legislative hearing on
    ``FCC Reauthorization: Improving Commission Transparency.'' I
    want to welcome our witnesses today. Appreciate your being
    here.
        Our subcommittee, often on a bipartisan basis, has worked
    to make the Federal Communications Commission a more
    transparent and accountable public body for many years and
    under various FCC chairmen. These bills sponsored by my
    colleagues continue those well-meaning efforts to make even
    powerful bureaucrats realize that this is the public's business
    that is being conducted. The FCC is not some venture capital
    firm. The FCC is an independent agency that reports to
    Congress.
        Commissioner O'Rielly, thank you for your well-reasoned and
    helpful testimony. I appreciate your insights, tone, and
    suggestions. You seem to understand the proper role of the FCC
    and welcome the opportunity to improve how it functions so that
    it can better serve the public. I commend you for your views
    and your willingness to work with this subcommittee. You have
    pointed out material problems at the FCC, and you have offered
    constructive solutions, and I thank you for that.
        Now, I wish I could say the same thing about Chairman
    Wheeler's testimony. If you really think that drafting,
    amending, and adopting rules without giving the public more
    opportunity to see them before they are crammed down their
    throats is good process, then maybe it is no wonder the public
    has little faith in the agencies of government.
        Under the current power structure at the FCC, the Chairman
    has incredible authority that none of the other commissioners
    has because the Chairman alone controls access to FCC
    information. He or she can call in their own validators to get
    the inside track and become a well-tuned chorus of support for
    their pet policies. Friends of the Chairman get special perks
    to weigh in and access information that the rest of the public
    just doesn't get to see and that other commissioners can't even
    discuss. Commissioner O'Rielly exposes this charade for what it
    is in his testimony. None of us on this committee would
    tolerate that insult to our First Amendment rights that the
    commissioners at the FCC must suffer at the hands of a
    Chairman.
        Chairman Wheeler urges us to not make the FCC subject to
    its own special set of rules. This is a refrain I have heard
    from some of my colleagues who want to expand the Commission's
    private discussions, a special rule that would only apply to
    the FCC, but oppose making the Commission's actions more
    public.
        If the Chairman would like to subject the FCC to the same
    rules as the other agencies of the Federal Government, why, we
    can certainly make that happen. Of course, that would mean the
    Chairman could no longer hand pick the agency's inspector
    general or have the IG report to the Chairman. We would have
    real independence in the IG's office, and under the rules that
    other agencies follow, we wouldn't have this silly argument
    over producing cost-benefit analyses for rulemakings. The FCC
    would simply have to follow the law and produce them like other
    agencies.
        Trying to behind hide the skirt of the APA and then pretend
    the FCC is just another Federal agency actually insults this
    committee. And I cannot help but respond to the nonsense that
    my colleagues' legislation would somehow unduly burden the FCC
    by requiring it to link a document that already exists to its
    Web site. Such a requirement wasn't considered a burden when
    the FCC forced broadcasters to scan their political files and
    make them available on the Internet. But now we are supposed to
    believe that a similar requirement for an agency with 1,700
    employees is just too much of a burden. Really?
        The FCC loves to come up to Capitol Hill and tell us how
    they are special because they have a public interest mandate.
    That mandate is a double-edged sword, which means you are stuck
    with both the rights and the attendant obligations. So I can't
    for the life of me come up with a legitimate rationale for how
    it is in the public interest to operate in secret, specifically
    excluding the public from the rules you are considering.
        My colleagues who wrote these measures and I are on the
    side of reforming the Washington bureaucracy. It is
    disappointing to see that you don't share our commitment to
    better government. We believe the public deserves more access
    to the process. We believe the public is best served by an
    open, transparent, and accountable government. And we will not
    stop in our cause and quest even if that means taking on the
    entrenched and powerful. We have only just begun.
        I yield the remainder of my time to the vice chair of the
    committee, Mr. Latta, for any comments he would like to make.
        [The prepared statement of Mr. Walden follows:]

                     Prepared statement of Hon. Greg Walden

        Good afternoon and welcome to the Subcommittee on
    Communications and Technology's legislative hearing on three
    draft bills to improve transparency at the FCC.
        Our subcommittee, often on a bipartisan basis, has worked
    to make the FCC a more transparent and accountable public body
    for many years and under various FCC chairmen. These bills,
    sponsored by my colleagues, continue those well-meaning efforts
    to make even powerful bureaucrats realize this is the public's
    business that's being conducted. The FCC is not some venture
    capital firm; the FCC is an independent agency that reports to
    Congress.
        Commissioner O'Rielly, thank you for your well-reasoned and
    helpful testimony. I appreciate your insights, tone and
    suggestions. You seem to understand the proper role of the FCC
    and welcome the opportunity to improve how it functions so that
    it can better serve the public. I commend you for your views
    and your willingness to work with this committee. You have
    pointed out material problems at the FCC and offered
    constructive solutions. Thank you.
        I wish I could say the same for your testimony Chairman
    Wheeler. If you really think that drafting, amending and
    adopting rules without giving the public an opportunity to see
    them before they are crammed down their throats is good
    process, then it's no wonder the public has little faith in the
    agencies of government.
        Under the current power structure at the FCC the Chairman
    has incredible authority-that none of the other commissioners
    has- because the Chairman alone controls access to FCC
    information, he or she can call in their own ``validators'' to
    get the inside track and become a well tuned chorus of support
    for their pet policies. ``Friends of the Chairman'' get special
    perks to weigh in and access information that the rest of the
    public doesn't get to see, and that other commissioners can't
    even discuss. Commissioner O'Rielly exposes this charade for
    what it is in his testimony. None of us on this committee would
    tolerate the insult to our First Amendment rights that the
    commissioners at the FCC must suffer at the hands of the
    Chairman.
        Chairman Wheeler urges us to not make the FCC subject to
    its own special set of rules. This is a refrain I've heard from
    some of my colleagues who want to expand the Commission's
    private discussions--a special rule that would only apply to
    the FCC--but oppose making the Commission's actions more
    public. If the Chairman would like to subject the FCC to the
    same rules as the other agencies of the Federal government, we
    can certainly make that happen.
        Of course, that would mean the Chairman could no longer
    hand pick the agency's inspector general or have the IG report
    to the Chairman. We'd have real independence in the IG's
    office. And under the rules that other agencies follow we
    wouldn't have this silly argument over producing cost-benefit
    analyses for rulemakings. The FCC would simply have to follow
    the law and produce them.
        Trying to hide behind the skirt of the APA and pretend that
    the FCC is just another Federal agency insults this committee.
        And I cannot help but respond to the nonsense that my
    colleagues' legislation would somehow unduly burden the FCC by
    requiring it to link a document that already exists to its Web
    site.Such a requirement wasn't considered a burden when the FCC
    forced broadcasters to scan their political files and make them
    available on the Internet. But now we're supposed to believe
    that a similar requirement for an agency with 1,700 employees
    is a too much of a burden? Really?
        The FCC loves to come up to Capitol Hill and tell us how
    they are special because they have a ``public interest''
    mandate. That mandate is a double-edged sword, which means you
    are stuck with both the rights and the attendant obligations. I
    can't for the life of me come up with a legitimate rationale
    for how it is in the public interest to operate in secret,
    specifically excluding the public from the rules you are
    considering.
        My colleagues who wrote these measures and I are on the
    side of reforming the Washington bureaucracy. It is
    disappointing to see that you don't share our commitment to
    better government, Chairman Wheeler. We believe the public
    deserves more access to the process. We believe the public is
    best served by an open, transparent and accountable government.
    And we will not stop in our cause and quest, even if that means
    taking on the entrenched and powerful. We have only just begun.

        Mr. Latta. Well, thank you, Mr. Chairman, and thank you for
    holding today's hearing.
        As the subcommittee continues to examine the
    reauthorization of the FCC, I remain firm in my belief that
    given the Commission's integral role in our marketplace, it is
    critical that the agency is accountable, efficient, and
    transparent. Therefore, I am pleased that we have the
    opportunity to openly discuss the three transparency draft
    bills in front of us today, one of which I am the sponsor.
        My discussion draft would require the FCC to identify and
    describe all items to be adopted by the Commission staff on
    delegated authority prior to action being taken. This is
    necessary to prevent abuse of delegated authority and to
    increase public awareness of the agency's day-to-day decisions.
        The remaining drafts are also vital to promote effective
    and transparent processes at the FCC. And I look forward to
    hearing the Commission's view on these bills and how Congress
    can work with the agency to ensure a level of transparency the
    American people deserve.
        [The discussion drafts follow:]
        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Latta. And, Mr. Chairman, I yield back the balance of
    my time.
        Mr. Walden. The gentleman yields back the time.
        Before I recognize the gentlelady from California, I would
    like to enter into the record a letter from a coalition of
    public interest groups, including Center for Democracy and
    Technology, Center For Media Justice/MAGNet, Color of Change,
    Common Cause, Consumers Union, Demand Progress, Engine, Fight
    for the Future, Free Press Action Fund, National Hispanic Media
    Coalition, Open Technology Institute of New America, Public
    Knowledge, United Church of Christ, OC, Inc., Writers Guild of
    America, West, opposing the three bills offered by
    Representatives Latta, Kinzinger, and Ellmers.
        [The information appears at the conclusion of the hearing.]
        Mr. Walden. Ironically, it seems that Public Knowledge is
    opposed to making knowledge public.
        To give you an idea what opponents of these bills are
    supporting, I would like to read an excerpt. This group opposes
    Rep. Ellmers' bill because it would, and I quote, ``essentially
    require finalized text at the time of a vote,'' close quote,
    apparently supporting the idea that the commissioners of the
    FCC shouldn't have access to a final version of the item before
    they vote. Entered without objection.
        I now recognize the gentlelady from California, my friend
    Ms. Eshoo, for opening remarks.

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

        Ms. Eshoo. Thank you, Mr. Chairman.
        And welcome to the distinguished Chairman of the FCC and to
    Commissioner O'Rielly. It is wonderful to see you.
        Mr. Chairman, I just want to depart for a moment from what
    I have here to say in my opening statement. I always think of
    you as a gentleman. I mean, we are friends. We agree on some
    things. We disagree on other things. But I hope that we can
    just stay away from using terms like ``the Chairman's
    charade.''
        These are people that have entered public service to serve
    the people of our country. I know that your side is adamantly
    opposed to what the FCC on a majority vote placed before the
    American people and us on net neutrality. It is a fair fight. I
    want to win. You want to win. We have our very specific reasons
    around this, and we fight hard, but we need to fight fair.
        I don't agree with Commissioner Pai. He is a friend of
    mine. Commissioner O'Rielly I don't know all that well, but I
    look forward to every time I see him and building a
    professional relationship. In so many ways we are all in this
    together.
        So to say that we are welcoming the Chairman and using him
    as a pinata, I think I would rather be on the welcoming side.
    And I think that you at heart would too. So let's just take a
    deep breath and be very respectful of one another. We can
    disagree. It is OK. It is all right. We are going to fight like
    hell for our own view.
        I know today's hearing is about process reform. I don't
    agree with the bills that you are putting forward. I think that
    they are going to tie the agency in knots by undermining
    established Administrative Procedure Act precedents, and I
    think that it will jeopardize regulatory certainty, and I think
    it is going to open the door to just a mess of legal
    challenges. So that is what I think.
        I think if our overall goal is reform, and I can tell you
    that the members on my side are sincerely prepared to offer
    constructive reform ideas, not retribution for net neutrality
    and what someone's position is on it, if we are going to work
    on reforms, let's work on reforms.
        We have, I think, two solid ones. One of them is to upgrade
    the FCC's multiline phone systems to provide the direct dialing
    to 911. This is something that Commissioner Pai has spoken to.
    And I think the FCC should lead on this, that the agency that
    regulates others, that this would set a great example, and I
    think that that should be done.
        The other FCC process reform are the efficiencies and
    collaboration amongst the commissioners themselves. We have
    done it before. It has been bipartisan. It has been bicameral.
    And that is the Collaboration Act. And we will have some more
    ideas, Mr. Chairman, and we look forward to offering them.
        Now, I have a minute and 21 seconds. I want to yield, split
    that between Congresswoman Matsui, so we will go women first,
    and then to Mr. Yarmuth.
        Thank you.
        Ms. Matsui. I thank the ranking member for yielding time.
        I would like to welcome both of you here today.
        The issue of FCC process reform is an important one. It
    should also be bipartisan in nature. We can all agree that
    transparency and efficiency at the FCC is a good thing.
        I have put forth a draft bill to make it easier for small
    businesses in Sacramento and across the country to engage with
    the FCC on policies that may impact them. The FCC oversees
    industries that account for one-sixth of the economy, which
    includes countless small businesses.
        Whether it is a family business or a startup, small
    business can't spend scarce resources on lawyers or lobbyists
    to have impact on FCC reforms. We should make it as simple as
    possible for the small businesses to have their voices heard at
    the FCC.
        This is a commonsense bill, and I hope my colleagues will
    support it. And I yield the rest of the time to my colleague.
        Mr. Yarmuth. Thank you. I will elaborate on this later in
    the hearing if I have time. But I am very concerned about
    transparency at the FCC, but I am also very concerned about
    transparency with the ads that fill our airways every election
    season and even now after election season.
        So I introduced today the Keeping Our Campaigns Honest Act,
    legislation requiring the FCC to revise their sponsorship
    identification rules to take in super-PACs and 501(c)(4)
    organizations. We need to make sure that there is sunlight on
    these donors until the IRS issues a clearer ruling.
        So I appreciate the opportunity to just mention that that
    is something I want to talk about in the future with the FCC
    and the committee. I yield back.
        Mr. Walden. The gentleman yields back. The gentlelady's
    time has expired. I recognize the vice chair of the full
    committee, Ms. Blackburn.

    OPENING STATEMENT OF HON. MARSHA BLACKBURN, A REPRESENTATIVE IN
                  CONGRESS FROM THE STATE OF TENNESSEE

        Mrs. Blackburn. Thank you, Mr. Chairman.
        And I do want to welcome our witnesses. We appreciate that
    you are here and that we have the opportunity to begin to look
    at FCC reform.
        And I am also hopeful that we are going to see
    participation in this on a bipartisan basis. I do believe that
    it is time for us to look at some reforms, transparency,
    accountability. You have heard it from everyone who has spoken.
    And it is something that we think the FCC is struggling with.
    And therefore we want to put it on the table and have a
    discussion with you as we look at how we reform the way that
    business is done at the FCC.
        Taxpayers are telling us they don't want this to be a
    struggle. They want you all to act in a more transparent and
    accountable method. And we have to realize that the rules you
    make do impact them. They impact the economy. They impact
    participation by the private sector. They also impact the tax
    burden that our constituents feel when they go to write that
    check every April.
        So, yes, we are going to continue to look at these, and we
    are hopeful that you are going to be proactive in working with
    us as we bring forward some proposals that will bring about a
    bit more accountability and transparency.
        One of the reasons that we are going about this is because
    of the opaque process which I think surrounded the net
    neutrality rules and really damaged the credibility of the
    Commission. That is something that is regrettable. And we
    should not have to see things passed in order to find out what
    is in them, and we want to work with you on making certain
    things are more transparent.
        At this time, Mr. Chairman, I yield 30 seconds to you.
        Mr. Walden. I thank the gentlelady.
        And I want to just go back and read what I actually said in
    my statement, because this was not aimed at any particular
    Chairman, and I will read it again: ``Under the current power
    structure at the FCC, the Chairman has incredible authority
    that none of the other commissioners has''--that is a fact--
    ``because the chairman alone controls access to information''--
    that is a fact--``he or she can call in their own validators to
    get the inside track and become a well-tuned chorus of
    support'' for their pet projects. That is a fact. Friends of
    the chairman do get special perks to weigh in and access
    information that the rest of the public doesn't get to see and
    that other commissioners can't even discuss. And it goes on
    from there. This was not aimed at any specific chairman, just
    to set the record straight.
        And I do appreciate my colleagues on the other side of the
    aisle who are interested in working on reform efforts. As you
    know, our legislation from my colleagues has been posted online
    and available, and we are open to these discussions. I read the
    press release today and saw the bills that you all have filed
    today. We are open to this discussion and look forward to
    working with you.
        And just as a final point, we have actually been on this
    effort since I began as chairman here to try and reform the
    FCC, irrespective of any policy before the FCC at the time or
    who the chairman is. I think we can do better in Washington to
    bring about transparency, openness, and accountability in every
    agency. This is the one over which we have jurisdiction.
        With that, I will yield back to the gentlelady from
    Tennessee.
        Mrs. Blackburn. Thank you, Mr. Chairman, and I appreciate
    the clarity that you brought to that and the repetition of your
    statement. And at this time I yield the remainder of the time
    to Ms. Ellmers.
        Mrs. Ellmers. Thank you to my colleague.
        I would just like to say that, absolutely, this is about
    transparency. This is about an open process. I think we all on
    both sides of the aisle are trying to see the way to that goal.
    And so we do have questions about the way the process is being
    put forward. We do have good questions about the plan of
    action.
        I am just thankful to the chairman that we have the
    opportunity today to discuss these things and get them out on
    the table so that we can move forward on an open and
    transparent process, as I think all Americans believe.
        Mrs. Blackburn. And the gentlelady yields back.
        And I, Mr. Chairman, will yield back the balance of my time
    to you. Again, I thank the commissioners for submitting their
    testimony, and I look forward to bipartisan participation on
    reforming the FCC. Yield.
        Mr. Walden. And I thank the gentlelady. And I just want to
    point out this has nothing to do with either net neutrality or
    the fact that Ohio State demolished my Ducks.
        Now, with that I turn to the gentleman from New Jersey, Mr.
    Pallone.

    OPENING STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE
                IN CONGRESS FROM THE STATE OF NEW JERSEY

        Mr. Pallone. Thank you, Mr. Chairman. I want to thank the
    chairman and welcome Chairman Wheeler and Commissioner
    O'Rielly.
        I know you were sitting in these same seats just a few
    weeks ago, and we appreciate you coming back.
        I just want to associate myself with the remarks that Ms.
    Eshoo made about let's be careful. I think things have calmed
    down a little here. But I think she was right in saying let's
    be careful that we don't pick apart or insult the Chairman or
    the FCC or any agency really, because everybody is trying to do
    the best they can. And I don't necessarily think agencies are
    better than Congress or worse than Congress or better than the
    President or whatever.
        I appreciate your comment, Mr. Chairman, about this not
    being a backhanded slap at the FCC for adopting the strong
    network neutrality protections. A lot of us obviously are
    concerned that that not be the case. So it is good that you set
    that forth.
        I am obviously supportive of having a debate about whether
    we should modify procedures across all agencies, but I am
    worried that these kinds of agency-specific procedural changes
    have several drawbacks.
        First, they can give the public the impression that these
    are simply backdoor efforts to undermine popular decisions with
    which some Members of Congress disagree.
        Secondly, legal experts have repeatedly told us that
    agency-specific requirements invite lawsuits. They have
    explained that even small changes create large conflicts with
    longstanding legal precedent, and these conflicts will no doubt
    lead to drawn-out battles in court. And as we have heard over
    and over in this subcommittee, litigation unsettles the market
    and deters investment.
        But despite Democratic concerns with the Republican-
    specific bills, Democrats are not the party of no. And that is
    why, as the chairman mentioned, the Democratic members of this
    subcommittee have put together our own plan, one that builds on
    the good work Chairman Wheeler has already done to improve the
    FCC's processes and will keep future FCC administrations fast,
    efficient, and transparent. Our commonsense proposals would
    keep the FCC as agile as the industries it regulates without
    sparking years of legal uncertainty.
        And our plan goes beyond the bureaucratic inner workings of
    the FCC. We believe that transparency should extend to the
    political process as well. And that is why the Democratic plan
    includes a way to ensure that the public knows who is paying
    for expensive political adds on TV. For too long megadonors
    have been hiding behind the innocuous and misleading titles of
    their super-PACs. Americans deserve to know who is using the
    public airwaves to influence political debate, and transparency
    should not stop at the doors of the FCC.
        So I am hopeful that we don't see any more political
    tactics against the FCC and that they end today.
        I have 2 minutes. I would like to yield 1 minute to Ms.
    Clarke and 1 minute to Mr. Loebsack, in that order.
        Ms. Clarke. Chairman Walden and Ranking Member Eshoo,
    thanks for convening this hearing.
        And to Chairman Wheeler and Commissioner O'Rielly, thank
    you for appearing here today.
        I would like to also thank Ranking Member Pallone for
    yielding time.
        The FCC oversees many dynamic industry sectors that make up
    one-sixth of our national economy. Consequently, it is
    important for government to understand and act quickly to keep
    up with the rapid innovation and shifts affecting these
    industries. Whether it is application for a license or a
    request for new rules, the public deserves timely responses
    from the FCC.
        There are some issues and tasks at the agency that have
    simply taken more priority over others, years to complete, and
    we must avoid these time hogs, if you will, that prohibit other
    business from getting done. Essentially, we need the FCC to
    effectively multitask while maintaining clear transparency
    around time lines to keep up with its broad portfolio of work.
    The agency's delay, for example, on the rulemaking or petition
    can have a negative impact on the commenter whose next step or
    survival is intricately tied to the timeliness of the agency's
    response.
        I know the Commission is working hard to speed its
    decisionmaking, but the best way to ensure that future
    administrations live up to this standard is to hold them
    accountable to the public they serve.
        I will be introducing a draft bill that will make data
    regarding the timeliness of the business before the FCC
    available to the public. It would also include information
    about the impact of congressional investigations on the
    agency's ability to manage its workload. I look forward to
    working with my colleagues and the FCC on these issues. And I
    yield to Mr. Loebsack.
        Mr. Loebsack. Thank you. And thank you, Ranking Member
    Pallone, for allowing me to speak briefly.
        And thanks to both of you for being here today as well.
        I have just joined this committee this Congress, but I know
    that this issue of FCC reform, namely transparency, is
    something that the committee has been examining for several
    Congresses. Unfortunately, we all know it has become a very
    partisan issue.
        The FCC and all our Federal agencies need to be
    transparent. I think we can all agree on that. They need to be
    responsive to the American people. This really should be
    something that is easy for Democrats and Republicans to agree
    on, and I think we have seen that today already demonstrated by
    the comments of my colleagues.
        That is why I am offering a discussion draft today to shine
    some light at least on the way the FCC makes decisions. My bill
    simply would require the FCC Chairman to post online the
    guidelines and procedures the commissioners use when
    considering items. Fairly simple.
        Commissioner O'Rielly, you have raised this issue at the
    FCC, and I agree with you on this commonsense reform. Public
    participation, I think we all know, has never been higher when
    it comes to engaging the FCC. Millions of Americans reach out
    to the FCC, and they deserve to know how decisions are made by
    the agency.
        So I look forward to working with my fellow colleagues here
    on the Energy and Commerce Committee to bring the clarity I
    think that we all want when it comes to what the FCC rules and
    regulations are and making sure that the public knows what they
    are as well.
        So thanks again for letting me speak to all the folks here
    who are in leadership positions on this committee and the
    subcommittee. And thanks to both of you as well. And I yield
    back. Thank you.
        Mr. Walden. The gentleman yields back the balance of his
    negative time there, but we are happy to have that.
        And I would just comment--they have called votes--I would
    just tell Ms. Clarke, Loebsack, and Matsui, I have just seen
    these bills for the first time today, and I think your ideas
    make a lot of sense. And so we are open to having that
    discussion and incorporating them in or see what we can come
    together with. And I hope you will join me that when we do do
    that, bringing commissioners back, the Chairman back to give us
    the input once we get a draft put together. So I would like to
    work with you on that. It is great.
        With that, I think we will recess and then hear from the
    Chairman and the commissioner when we return from votes. So if
    members could go vote and come right back.
        [Recess.]
        Mr. Walden. We will call back to order the subcommittee on
    Communications and Technology. And thank our witnesses again
    for being here and for sharing with us their expertise on these
    issues and their suggestions and concerns.
        And with that, I now welcome the Chairman of the Federal
    Communications Commission.
        Chairman Wheeler, thanks for being here, and we look
    forward to your testimony.

      STATEMENTS OF THE HONORABLE TOM WHEELER, CHAIRMAN, FEDERAL
    COMMUNICATIONS COMMISSION; AND THE HONORABLE MICHAEL O'RIELLY,
            COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION

                        STATEMENT OF TOM WHEELER

        Mr. Wheeler. Thank you, Mr. Chairman.
        Mr. Walden. Will you make sure that mic is on too, Tom.
        Mr. Wheeler. Yes. Thank you.
        Mr. Walden. There we go.
        Mr. Wheeler. Unaccustomed as I am to speaking quietly, I
    guess.
        It has been a while, but I do want you to know that I
    listened carefully to your opening statement and that I took
    the message you were delivering onboard. And I also feel very
    strongly that impugning the First Amendment or this committee
    was in no way, shape, or form any goal, and I don't believe
    that I did. And so I just want to state that for the record.
        Mr. Walden. I appreciate that.
        Mr. Wheeler. Long before I ever came to the Commission, I
    had heard of how the FCC must become more efficient and make
    decisions faster. It was a topic, Mr. Chairman, of our first
    meeting, you may recall. You prompted me to task a senior
    member of the Chairman's office to lead an intra-agency team to
    attack the problem. The result of this has been the resolution
    of thousands upon thousands of pending matters, the most items
    ever resolved in the shortest period ever. We aren't done by a
    long stretch.
        But in regard to the issues raised by the three proposals
    noticed for this hearing, we should consider the following.
    Publishing our decisions quickly has been a priority of mine.
    During no other chairmanship in this century have we reported
    items as quickly as we have during my chairmanship, 73 percent
    in one business day or less; 86 percent in 2 days. But you ask:
    What about the other 14 percent? Well, those are 41 decisions
    that were typically the result of last-minute negotiation, and
    the staff had to work with the commissioners to bring them into
    shape.
        But let's let the facts speak for themselves. During my
    chairmanship, the average time to release an order was 1.8
    days. Just for comparison's sake, during the Powell Commission,
    the average was 8.7 days. During the Martin Commission, the
    average was 10.7 days.
        On another topic, delegated authority, delegated authority
    on items for the FCC record is at a 15-year low during my
    chairmanship, and that is both in absolute numbers and in the
    ratio to overall decisions.
        Now, the interesting thing is that delegated authority can
    be confusing as a term. Last year, there were over 950,000
    items that were decided on delegated authority. That may seem
    like a large number, but it has actually stayed pretty constant
    over the years. The vast majority of delegated authority
    decisions are routine, although they are of great importance to
    the companies affected. About 0.2 of 1 percent of those
    delegated authority decisions are substantive enough to make it
    into the FCC Record, which is the compendium of Commission
    policy matters.
        Again, the facts speak for themselves. If the goal is to
    reduce delegated authority decisions, in order that
    commissioners vote on as many items as possible, the record
    during my chairmanship surpasses the record of Republican
    administrations, affording that opportunity to minority
    commissioners.
        And, finally, the Commission has never been more open and
    the public more informed of our activities. While publishing
    the specific language being considered and debated by the
    commissioners may seem to facilitate matters, it actually
    achieves the opposite. Doing this would turn an open, yet
    highly structured administrative process into something akin to
    the funhouse hall of mirrors where it just goes on and on and
    on and on. And this is because in Sprint Corporation v. FCC,
    the D.C. Circuit held that the Commission must respond in its
    decisions to every argument raised on the record. Now, there
    have been a lot of guffaws about a 300-page Open Internet Order
    accompanying 8 pages of rules, but that is why. By law, every
    issue raised in an extremely fulsome record had to be
    addressed.
        We can virtually guarantee that publishing a predecisional
    draft will trigger an influx of new comments, raising new
    issues. Every imaginative lawyer on every side of an issue will
    dream up new interpretations, new contexts, and new issues that
    they will file with the Commission, to which the Commission
    must respond. This means there would not be a decision, but a
    rewrite to reflect the new record. Then it would be published
    again, and the whole process would begin again as we dive down
    the administrative rabbit hole.
        But let's look for a moment at some examples. The Connect
    America Fund payments for rural rate of return carriers needs
    to be resolved. This is basically a debate among carriers who
    receive benefits over the best formula to calculate those
    payments. Some carriers will benefit from the change. Others
    won't. And those who feel disadvantaged will seize upon this as
    an opportunity to keep us from getting funds into the hands of
    those who can deliver broadband in rural areas.
        The designated entities competitive bidding issue is a hot
    item on which we have heard a great deal from this committee.
    But if we don't have rules in place in advance of the incentive
    auction in Q1 of next year, the old rules will stick. Neither
    of us want that. Likewise, however, if we get into this kind of
    a constant delay situation, then the alternative becomes do we
    delay the auction, and neither one of us want to do that
    either. And there are multiple other examples like this,
    including STELAR, where you asked us to do things in 12 months
    that would be impossible to do in this kind of situation.
        So all I would say, Mr. Chairman, is from our first meeting
    you and I shared the same goal about improving the Commission's
    processes. Commissioner O'Rielly, my friend and colleague
    Michael O'Rielly, is also a champion of these efforts. He has
    made a number of very good and substantive suggestions that
    prompted me to create an all-offices task force to review just
    how the agency operates. I believe in making the FCC more
    efficient and nimble, and I look forward to working with you in
    that goal.
        [The prepared statement of Mr. Wheeler follows:]
        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Walden. I appreciate that. And I thank you for your
    testimony and your comments and your leadership at the FCC.
        Let's go now to Commissioner O'Rielly. We appreciate you
    being here and your testimony and comments, sir. And please go
    ahead.

                     STATEMENT OF MICHAEL O'RIELLY

        Mr. O'Rielly. Thank you, Mr. Chairman, Ranking Member
    Eshoo, and members of the subcommittee. Thank you for the
    opportunity to discuss this important topic before you today.
        Having served at the FCC for nearly 18 months, I have
    experienced FCC procedures and assessed their effects
    firsthand. Over the years, I have also had the opportunity to
    speak with stakeholders about areas for improvement.
    Consequently, I believe that a number of FCC practices are in
    need of review and reform.
        My pursuit of greater Commission transparency is not
    related to any particular issue, such as net neutrality. My
    interest is in improving our overall processes far preceded
    that specific order, and the areas I have highlighted are
    recurring problems that have been developing over some time,
    not specific to this particular Commission.
        Some people have interest in comparing the procedures of
    other independent Federal agencies. I am not sure that process
    will be very enlightening because each agency comes with its
    own operating statute, and it can differ tremendously for
    numerous reasons. The standard for considering any proposed
    change should be, in my mind, what is in the best interest of
    the American people and the communications marketplace.
        I also disagree that the APA requires practices to be the
    same across all agencies. That is not the case today and cannot
    justify inaction. Likewise, it is no excuse that new procedures
    may take time to implement. The agency routinely reviews and
    updates its rules for regulatees, and we can do the same for
    our own processes.
        Since you invited me to testify before you, I will say that
    I am in favor of the legislative efforts underlying the three
    draft bills that are under discussion. Vice Chairman Latta's
    bill would ensure that commissioners and the public know when
    items are being decided under delegated authority. Today, I am
    given up to 48-hour notices in some cases, but in most
    instances no notice at all, which is harmful for purposes of
    following and acting on related issues.
        This fix is not something to be feared. And the argument
    made by some opposing the bill that such a list would prevent
    the Commission from slipping out items unnoticed is problematic
    from my viewpoint.
        I also disagree with the notion that parties aggrieved by a
    bureau decision can simply seek Commission review. There is no
    timing required for the Commission to act on an application for
    review. A number of them have been pending for years, meaning I
    get no involvement.
        In regards to Congresswoman Ellmers' bill, posting the
    adopted rules within 24 hours would allow the public and
    stakeholders access to the bottom lines, instead of having to
    wait, in some cases weeks, for the item to be completed. Such
    delay hinders their preparation either to comply or challenge
    the item in court, meaning additional time for market
    uncertainty.
        Congressman Kinzinger's bill would greatly improve the ex
    parte meetings at the Commission by allowing outside parties to
    know what is actually being contemplated so they can target
    their areas of concern. It is frustrating, so frustrating to
    sit in a meeting unable to actually engage with parties or talk
    about what changes I am seeking to an item or how best to fix a
    particular problem.
        More transparency would not reopen the comment period or
    interfere with the deliberative process. Parties already file
    ex parte during the circulation period. This simply ensures
    that their comments are on point and that our deliberations are
    informed by their views.
        In rare instances it may take some additional time, while
    still under the sunshine period, to finalize an item, but that
    would not create an undue delay and may ultimately save time by
    avoiding the need to reconsider or litigate decisions that were
    not fully baked.
        I know discussion of reform has generated some concern that
    minority commissioners might grind the Commission to a halt.
    Not only is that not my intent, I do not believe it is any way
    accurate. Additionally, these changes would not undermine the
    discussions or interfere with negotiations between
    commissioners' offices.
        In addition to the three bills under discussion, my written
    testimony provides additional areas that I hope will be
    considered by the subcommittee. These include selectively
    elevating delegated authority items to the full Commission upon
    request, the editorial privileges process, the pre-adoption
    process, testimony provided by outside witnesses at Commission
    open meetings, the role of advisory committees, compliance with
    the Paperwork Reduction Act and Regulatory Flexibility Act,
    accounting for Enforcement Bureau-assessed penalties, and
    codifying all FCC procedures.
        In sum, I believe the changes should be made to the
    Commission's proceedings in order to improve its efficiency,
    transparency, and accountability. And I thank you very much.
        [The prepared statement of Mr. O'Rielly follows:]
        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Walden. Commissioner O'Rielly, thank you for your
    testimony as well.
        I want to follow up with you on the part of your written
    testimony discussing the delegated authority piece, because it
    seems shocking to me when you say: Even those who regularly
    follow FCC proceedings can find it difficult to keep track of
    all the items that the FCC releases at the bureau or office
    level. Imagine my surprise when I discovered you can do it as a
    commissioner.
        Obviously, nobody is saying every item should come up to a
    vote in the Commission. The Chairman has eloquently said there
    are too many, basically.
        Mr. O'Rielly. Yes.
        Mr. Walden. And I got that. That is ministerial and
    management and all that.
        Tell me what you are trying to get at here. What is the
    issue?
        Mr. O'Rielly. So in my written testimony, I highlighted a
    couple of categories. I don't want to get into equipment
    authorization or routine licensing. I think that would reduce
    the vast number of 950,000 I think the Chairman mentioned.
        Mr. Walden. Right.
        Mr. O'Rielly. There are some instances, though, where it
    becomes an issue where it would help the Commission, in my
    opinion, to have the Commission itself vote on an item versus
    delegated authority.
        Today delegated authority, though the good-meaning staff--
    and I mean no disrespect to them, I have great colleagues that
    I work with--they make decisions and I actually don't know what
    is being decided. It is late in the game by the time that I
    know what is actually being decided. It might be out the door
    before I know what just happened.
        My staff will say: Did you know we just released this?
        And it is like: Oh, goodness gracious. OK. What does that
    mean for these five other things we have been working on?
        Well, we have got to go back and try and piece those
    together.
        When is an instance of delegation going to be notified for
    us?
        So there are problems with how it works today. And I have
    sought a couple of different things. One is some kind of
    notification of timing, and I think that Congressman Latta is
    trying to get to that, how soon we would be notified when
    delegation is going to be used. But then I have also been
    advocating a mechanism where, on important matters, the
    commissioner has an opportunity to pull it up to the Commission
    level.
        And no disrespect to the Chairman, my Chairman, not to you,
    but no disrespect to my Chairman, in his testimony he
    highlighted, and I think it just might have been misinterpreted
    on my part, but he highlighted that I was looking for some type
    of veto over the delegated authority, that somehow I was
    pulling the item up and I would able to veto it. I am fully
    aware that I am in the minority and I will lose almost 100
    percent of the time when it comes to it. I have looked at the
    former votes and I don't win that often, and that is OK, I
    respect the process, and that is completely understandable.
        So when I ask to pull it up, I want to be able to vote on
    the issue myself. I am comfortable voting. I am comfortable
    voting quickly. I have not been a delay. I do not believe I
    have been a delay at the Commission. So I think it is something
    so important to do.
        Mr. Walden. All right.
        So, Chairman Wheeler, maybe you can help us understand this
    then. If the bureaus are drafted in order to be adopted on
    delegated authority, what role do the other commissioners'
    offices have? And, again, take the personalities out of this.
        Mr. Wheeler. Sure.
        Mr. Walden. I have been dealing with this for multiple
    chairs. What role? Do they get to weigh in with the bureau on
    the order? Do they get drafts and get to comment through that
    drafting process? Do some drafts, others, have to wait until
    the order is released by the bureau? How does this----
        Mr. Wheeler. Well, thank you, Congressman. These matters
    are typically the carrying out of a previous decision that the
    Commission has made. So the Commission says, ``We are going to
    decide thus and so and we leave the details to the bureau of
    whomever to work it out.''
        Mr. Walden. To the staff.
        Mr. Wheeler. And the bureau does that and moves ahead and
    releases it.
        On controversial items--controversial is not the right
    way--on items of specific note, because we can tell the
    difference between housekeeping and big deals----
        Mr. Walden. Sure.
        Mr. Wheeler [continuing]. We try to do 48 hours notice, as
    Commissioner O'Rielly indicated, so that the commissioners can
    engage in: OK, this is what is going on.
        Mr. Walden. So, I guess that is my question. I sense from
    Commissioner O'Rielly that there is not some formal notice
    process, and so they may not know until it is over. Is that
    what you are getting at?
        Mr. O'Rielly. Right. And I said this before. Some items are
    given 48 hours notice, some 24 hours, and many none at all. And
    as I said in my testimony in the Senate recently, I have
    actually been sent an email that said, ``As a courtesy, we are
    letting you know this is happening.'' And I was kind of
    insulted. It was like: Thanks for letting me know what is
    happening at the Commission where I work.
        So there is no uniform structure in terms of how much time
    we are allowed.
        Mr. Wheeler. But as I said in response, Mike has raised a
    lot of very good procedural issues.
        Mr. O'Rielly. I got some more coming too.
        Mr. Walden. We are all ears.
        Mr. Wheeler. Why does that not surprise me?
        But as you know, we put together this group, and we are
    going to all roll up our sleeves and we are going to make
    decisions as a Commission on, OK, what should the rules be.
    Because you are right, Mike and I walked into the door the same
    day, and we both got handed the same book of Commission
    procedures.
        Mr. Walden. One got a gavel.
        Mr. Wheeler. There was dust on that book.
        Mr. Walden. Yes. No, I get that.
        Mr. Wheeler. Mike has got a really good point, we are going
    to roll up our sleeves and deal with it as a Commission.
        Mr. Walden. And I told a predecessor of yours once removed,
    Chairman Genachowski, we have seen different chairs operate
    different ways, different times, some better than others, some
    very reform minded. You have put reforms in, Chairman.
        What I am trying to do is from the legislative body, say,
    let's get in statute clear transparency and reform so it is
    irrespective of a chairman that comes along that doesn't want
    to participate.
        Mr. Wheeler. And, I guess, Mr. Chairman, my only comment on
    that is that we are in violent agreement on some basic
    concepts. The question is: How do you accomplish them? And I
    think that using our process we can present a series of reforms
    that you will impressed with. You may not agree with all of
    them.
        Mr. Walden. Yes. Sure.
        Mr. Wheeler. Mike won't agree with all of them. I probably
    won't agree with all of them. But I said to you in our first
    meeting I was serious about process reform.
        Mr. Walden. No, I know. I know. And I think I concurred
    that we are too. And we actually get to legislate too.
        So Mr. O'Rielly, then I have used up my time.
        Mr. O'Rielly. I will make one last point. And I am
    participating in the chairman's new task force and look forward
    to that going forward. But I don't want that to supplement or
    supplant the work that you may do. We take our direction from
    the subcommittee. If you legislate, then we will follow that
    direction.
        Mr. Walden. Thank you.
        Mr. O'Rielly. In any event, at the end, even if we are able
    to do everything and I win everyday in our task force, there is
    still a role, as you highlighted, to codify those rule changes
    because we don't want to see them change over time.
        Mr. Walden. Yes. There should be clear, understandable,
    available procedures internally at the Commission, so
    regardless who is in charge, which party, there is a process
    that everybody has great confidence in.
        With that, I will recognize my colleague and friend from
    California, Ms. Eshoo, for questions.
        Ms. Eshoo. Thank you, Mr. Chairman.
        Thank you, again, to both of you for being here, and it is
    good to listen to the answers of the questions that have
    already been posed.
        Let me ask this, because I think there is a lot of
    attention being given to this whole issue of delegated
    authority. Do the FCC rules today already explicitly outline
    what types of items can be delegated? Or is it just at the call
    of the chair?
        Mr. Wheeler. So there are multiple. They are based on
    Commission policy. So there are, as I said, in those 950,000--
    --
        Ms. Eshoo. So those are the number that fall under that can
    be dealt with that way.
        Mr. Wheeler. Every decision under those 950,000 has to be
    based on a decision previously made by the Commission. Now, on
    some experimental licenses, it was a decision made 20 years
    ago, but those move through in a process.
        Ms. Eshoo. So----
        Mr. Wheeler. Under 0.2 of 1 percent. Yes. Excuse me.
        Ms. Eshoo. No, that is all right.
        In thinking about this issue, it sounded as if delegated
    authority--well, the term means that it has been given over to
    someone, someone else is carrying it out--and the implication
    is, is that the Commission--and Commissioner O'Rielly just kind
    of fortified that thought--that as a commissioner, he doesn't
    know.
        You are saying it starts with the Commission to delegate
    and then that authority takes place and is carried out by
    whatever bureau.
        Mr. Wheeler. Yes, ma'am. Let me read you what delegated
    authority----
        Ms. Eshoo. So, yes, but let me just ask Commissioner
    O'Rielly something.
        Since you are able to vote on whether something is
    delegated or not--I don't know how else to put this, but I mean
    it respectfully--what is the beef? You don't like the decision
    that the delegated authority then comes up with?
        Mr. O'Rielly. So to be fair, and the Chairman is right, we
    have a whole host of items that have already been delegated
    long before I got here. I actually don't know the scope.
        Ms. Eshoo. Oh, so it is the previous one.
        Mr. O'Rielly. I don't know the scope of what has been
    delegated. We have no inventory.
        Ms. Eshoo. But can't you go back and read about those?
        Ms. O'Rielly. We have no inventory to know what all has
    been delegated.
        Ms. Eshoo. I see.
        Mr. O'Rielly. Like, there are a whole host of things that
    go out the door that I don't even know, they were delegated
    long before. And the Chairman and I have had some good success.
    He has sometimes proposed delegation, and I have struck it in
    some of the proposals, and sometimes I win and sometimes I
    lose. But I have tried to take it out of----
        Ms. Eshoo. Well, let me ask you this.
        Mr. Wheeler. No, but that is a really important point. I
    mean, Commissioner O'Rielly has been very forthcoming and very
    involved in saying, ``In this item, I don't want you to give
    delegated authority, I want to strike that.'' So it is only in
    instances where the Commission has, in a majority, voted for
    that delegated authority to exist.
        Ms. Eshoo. So there are two beefs here, legitimate ones.
    And I completely identify with your description of being in the
    minority. Number one, you weren't there when the Commission
    decided to delegate the authority, because that is the original
    starting point. Correct?
        Mr. O'Rielly. That is definitely part of it, yes. That is a
    part of it.
        Ms. Eshoo. That is where it starts.
        Mr. Wheeler. Issue one.
        Ms. Eshoo. And you don't have the opportunity to go back at
    that?
        Mr. O'Rielly. That is right.
        Ms. Eshoo. So of the ones over 18 months, give us an idea
    of how many of those delegated authorities that previous
    Commissions delegated would you have bumped back up to the
    Commission level?
        Mr. O'Rielly. There are so many that I wouldn't know the
    scope of how many we are talking about. But in general----
        Ms. Eshoo. Of the ones that you don't like or agree with.
        Mr. O'Rielly. I think I understand your question. If I
    don't, please correct me.
        But I would say that I win probably three-quarters of the
    times when I want it struck from items. There have been a
    number of big items that have gone out during my 18 months
    where I have lost because I have been in the minority.
        Mr. Wheeler. You win three-quarters of the time? I am too
    soft.
        Mr. O'Rielly. I mean, on delegated authority.
        Ms. Eshoo. I have got 33 seconds left now.
        I don't really we know how we get at this, and I am not
    sure what is broken. If, in fact, that snapshot of very
    powerful people in a given area, section of the FCC just go off
    and make decisions on their own and there isn't any
    accountability, there isn't any transparency, I think we all
    would take issue with that. But it is my understanding that it
    originates with the Commission.
        Now, I know how you feel about decisions that have been
    made before you arrived. There are over 200 years of decisions
    that were made by the time I arrived. So I either have to work
    to change it or I may not get my way. But I don't think it is
    as broken as I originally thought this is.
        I know what I wanted to ask you, Mr. Chairman. When are you
    going to finish your examination together and then give us
    ideas?
        Mr. Wheeler. I would hope that by the time you all get back
    from your August recess that we would have results to share
    with you.
        Ms. Eshoo. Good. If you could get it done before that, it
    would be--well, you know what, we won't take action because we
    will be getting ready to go away in August.
        So I look forward to receiving them. But I think you have
    got a good flavor of what members really care about. And I am
    not so sure whether the legislation that is being proposed
    really addresses, after you both have explained, how delegated
    authority works.
        So I don't have any time to yield back. I appreciate the
    additional time I was given.
        What?
        Oh. Oh. That is right. My staff is reminding me. Mr.
    Chairman, I would like to ask for unanimous consent to place in
    the record a letter to myself, Mr. Walden, Mr. Pallone, and
    Chairman Upton from Reed Hunt, former FCC commissioner, dated
    April 30, 2015.
        Mr. Latta [presiding]. Without objection.
        [The information appears at the conclusion of the hearing.]
        Ms. Eshoo. Thank you very much.
        Mr. Latta. The chair now recognizes the gentlelady from
    Tennessee, the vice chair of the full committee, for 5 minutes.
        Mrs. Blackburn. Thank you, Mr. Chairman.
        Commissioner O'Rielly, I want to start with you, if I may.
    And I have your blog post from August 7, 2014. It is titled,
    ``Post text of meeting items in advance.'' And you discuss the
    need to post on the FCC's Web site the actual text of items to
    be considered at open meetings at the same time they are
    provided to commissioners.
        And describing the current system, you say this, and I am
    quoting you, ``...understand the need to protect internal
    deliberations, there has to be a better way.'' End quote. And I
    would love for you to elaborate on that and how exactly it
    would improve the rulemaking process at the FCC. Walk me
    through this.
        Mr. O'Rielly. Sure. So I started to do this in my opening
    statement. It is so frustrating. When an item is circulated for
    an open meeting it is called white copy, 3 weeks before the
    open meeting. We have items that are circulated today for our
    next meeting. At that time period, I get more requests from
    outside parties to meet. They will file ex partes on what
    happened during that discussion.
        The difficulty is, when you meet with them, they have no
    idea what is in the item itself. So you have a combination of
    different people that come in. Some people know a lot what is
    in the item because maybe they have a friend at the Commission
    or they are a pretty decent lobbyist and they know what----
        Mrs. Blackburn. So they are relying on somebody to feed
    them that information, not on what is publicly available.
        Mr. O'Rielly. Some people are very well educated. Some
    people are well attuned to what is happening. There is a middle
    crowd which knows a little bit, and a little bit is dangerous
    because they don't know what exactly is in play. And then you
    have a whole host of people that come in, they don't know
    anything about what is in the item, and that includes the
    general public.
        And so we have this mixture, and I am not allowed under the
    current rules to tell them anything that is in the item or any
    changes that I am seeking to the item. I have read it. I read
    all of the items.
        Mrs. Blackburn. OK. How much of your time does that type of
    interaction take with people?
        Mr. O'Rielly. Sure. So in 2 weeks I will meet 6, 7 meetings
    a day, probably.
        Mrs. Blackburn. OK. So you are utilizing a lot of your time
    to answer questions that come from inequity of access to
    information.
        Mr. O'Rielly. Yes. I am not allowed to answer any
    questions.
        Mrs. Blackburn. OK.
        Mr. O'Rielly. They come in and pitch me on what they would
    like to see changed based on their knowledge base.
        Mrs. Blackburn. Got it.
        Mr. O'Rielly. And I am saying it is inequitable in what
    they know and they want to see changed.
        Mrs. Blackburn. OK.
        Mr. O'Rielly. And that is problematic for trying to have a
    good dialogue. There are things that I would like to do and I
    am not allowed to tell them, like: I was thinking about doing
    this to the item. What would you think of that? Is that a
    possibility? It is almost like you were testing out an
    amendment with somebody and say: What do you think with this?
        I am not allowed to do that. I am not allowed to tell
    anybody what I am seeking in terms of changes. And I can't even
    tell them if they are wrong. I can't say, like: Gee, you have
    been spending so much time on this issue.
        And this came up in a meeting I had with wireless
    microphones. Did 2 meetings in 1 day. In the morning meeting, I
    couldn't tell them that they were completely wrong. They went
    and met with a bunch of people at the Commission, came back
    later in the afternoon, and they were mostly wrong. But I
    couldn't tell them that they are mostly wrong, that we had
    moved past in some other concerns and others they were just----
        Mrs. Blackburn. So to fix it, what you are saying is
    provide everybody the same set of information in a transparent
    process where the information is easily accessible?
        Mr. O'Rielly. Yes. I am saying we post the one document.
        Mrs. Blackburn. One. OK.
        Mr. O'Rielly. Just the one document. Not continuing to
    repeat the public comment period.
        Mrs. Blackburn. Got it.
        Mr. O'Rielly. One document that is the one circulated with
    us. And then we will get more pointed comments, more
    particular, specific areas that they would like to see
    addressed.
        Mrs. Blackburn. And it would be a fairness issue and an
    efficiency issue?
        Mr. O'Rielly. Yes, ma'am.
        Mrs. Blackburn. OK. Very good.
        I have got about a minute and a half left. Commissioner
    Wheeler, very quickly, if you have any response to that, and
    then I have got one more question for you, sir.
        Mr. Wheeler. Thank you. Thank you, Congresswoman.
        I mean, I think there are several things here. The first is
    that the last 3 weeks isn't the only time we hear from people,
    by the way. There is a lot of discussion that goes in. And ex
    partes, all kinds of ex partes.
        The issue is how do we get to a position where we can pull
    up and shoot. And if we are in a situation where there are
    constantly new ideas--I mean, somebody goes in, you publish the
    item, it gets fly spec'd by really sharp lawyers, who then
    start filing things that require us to respond, which requires
    us, then, to pull and rewrite in order to----
        Mrs. Blackburn. Would giving everybody the same information
    take care of that?
        Mr. Wheeler. No. The difficulty is what they then do,
    because----
        Mrs. Blackburn. OK. Well, we can't address that.
        Let me move on to the other question. I have got about 30
    seconds now.
        I was looking at your press release that came out yesterday
    on the Connect America Fund, and I had gone back and looked at
    this March 30 Wireline Bureau with the order that was there on
    the subsidized broadband buildout.
        The question is: Did you properly notice what appears to be
    an arbitrary distinction, whether or not the incumbent provider
    had a customer in the area as opposed to whether the provider
    offers service to the area?
        Mr. Wheeler. Thank you. I believe we have properly noticed
    it. And as a matter of fact, it was out to an extent that
    people could file and say: No, he is wrong.
        Mrs. Blackburn. OK.
        Commissioner O'Rielly, do you have anything on that.
        Mr. O'Rielly. So there is that challenge process the
    Chairman references. There is going to be disagreement on
    whether the challenge was properly executed by the staff. And I
    am sure there will some process for us to review that.
        Mrs. Blackburn. OK. My time is up. Thank you all.
        Mr. Latta. Mr. Yarmuth is recognized for 5 minutes.
        Mr. Yarmuth. Thank you very much, Mr. Chairman.
        I thank the witnesses for their testimony and for this
    discussion.
        I am going to return during my time to the subject that I
    was talking about earlier during opening remarks and that is
    campaign finance disclosure. Because while transparency at the
    FCC is very important, as it is in every agency, I am much more
    concerned about the dark money that is used to flood the
    Nation's airwaves with anonymous ads, not just during election
    season, although now election season is year-round, it seems,
    but throughout the year.
        And the Communications Act already requires the disclosure
    of the true identity of anyone paying for an ad, whether it is
    billionaires or basically anyone who can afford to run ads,
    shouldn't be able to hide behind innocently named front groups.
    That is why I introduced a bill earlier today that directs the
    FCC to use its existing authority to require disclosure of the
    actual donors behind these ads.
        I don't think disclosure should be a partisan issue.
    According to Chief Justice Roberts in the McCutcheon opinion,
    he said: Disclosure often represents a less restrictive
    alternative to flat bans on certain types or quantities of
    speech. With modern technology, disclosure now offers a
    particularly effective means of arming the voting public with
    information.
        And then I would like to quote another high-ranking
    Republican official from various points in his career. 2001:
    What we ought to have is disclosure. In 1997: Public disclosure
    of campaign contributions and spending should be expedited so
    voters can judge for themselves what is appropriate. These are
    the reforms which respect the Constitution and would enhance
    our democracy. 1997: We could do disclosure more frequently. I
    think disclosure is the best disinfectant. I think it gives our
    constituents an opportunity to decide whether or not we are in
    the clutches of some particular interest group and whether or
    not that is a voting issue for them. I am certainly in favor of
    enhanced disclosure. In 1990: We would eliminate PACs
    altogether. It will be interesting to see whether our
    colleagues on the other side of the aisle would be willing to
    eliminate PACs altogether. We would have the money come from
    small individuals. And so forth.
        That is Senator Mitch McConnell, the majority leader of the
    Senate. And while I doubt that he would say the same thing
    today, I think he has moved on from those positions, I think
    that the validity of his remarks and of Chief Justice Roberts
    are very, very sound and solid.
        We have seen the amount of money escalate dramatically,
    according to the Center for Responsive Politics. In 2012
    election cycle, there were about $300 million from these
    anonymous organizations. Six years prior to that, it was only
    $5 million. I am sure, looking ahead to 2016, that we are
    probably talking about a billion dollars or more in these types
    of anonymous ads.
        So I think it is very critical that the FCC use the
    authority it has to require disclosure. Again, I think this is
    not a Republican or Democratic notion, and the abuses of super-
    PAC and the 501(c)(4) designation are not limited to one part
    of the philosophical spectrum. It is across the spectrum. I
    know that some people in the labor union movement would
    probably not want to do this just as much as the Koch brothers
    probably wouldn't to do that.
        But, again, I think the American people are crying out for
    this, and I would hope that this bill would get attention. And
    if it is not successful, this legislation, then I would hope
    that the FCC would look carefully at what it can do within its
    existing authority to provide more transparency in the election
    cycle.
        So I don't have a question. Thank you for your attention. I
    will yield to the ranking member.
        Ms. Eshoo. I thank the gentleman for this what I think is
    really a very important piece of legislation, and I want to
    associate myself with everything that he said.
        The second most often question of me by my constituents is:
    What are we going to do about this whole issue about campaigns,
    how they are financed? And now, on the heels of Citizens United
    and the McCutcheon decision, what are you going to do about it?
    We have to do something about it. They are sickened by it. They
    are sickened by it.
        In the California case, let me just tell you about
    something that is very powerful relative to the airwaves. A
    handful of years ago there was a measure on our ballot
    statewide to roll back the stringent measures that the State
    legislature had passed relative to clean air, and there were
    ads to roll it back. But at the end of that ad, as required by
    law in California, is there is a voiceover that said: This ad
    was paid for by--and it named the oil companies that had paid
    for the ad, whomever they were. I don't remember. I don't want
    to say their names because I may not be recalling the correct
    ones.
        You know what? Once Californians heard who paid for that
    ad, it sunk the effort. That is how powerful it is. So that
    transparency and that sunshine, I think, is something that we
    need to take up on.
        Thank you. Thanks for yielding.
        Mr. Latta. The gentlemen's time has expired. And at this
    time, the chair will recognize himself for 5 minutes.
        Interesting enough, I am going to go back to the delegated
    authority, oddly enough, since it is my piece of the
    legislation within the discussion draft.
        Commissioner O'Rielly, if I could go back to some of the
    questions that have been asked and some of your answers. One of
    the questions I would like to ask is: What is wrong with more
    transparency? What is wrong with the 48 hours that folks out
    there would get more information to them?
        Mr. O'Rielly. I am very sympathetic to that, and I think
    that would be favorable, and I have written on that point
    exactly.
        Mr. Latta. And when you have written on that, what is
    harmful to consumers or other businesses out there for that 48
    hours in your research and your writing?
        Mr. O'Rielly. It has been interesting because the critique
    of your bill that I have read, it is interesting because there
    has been a concern that if you expose these items 48 hours in
    advance then you will have a rush to file all these arguments
    at one time, you are putting up a flare. But we actually do
    that today on our items that are circulated.
        This is something I printed out today from our list. It is
    on our Web site, and it tells everything that is on our
    circulation. These are predecisional items. So everyone knows
    what is actually happening, and this is pretty similar to what
    you were seeking in your bill, if I read it correctly.
        We talked about the Chairman's task force earlier, his
    previous task force, or his previous review effort, and one of
    the things he was seeking in the task force was actually to
    take this list and expand it to tell people how Commissioners
    had voted already. So you would have, like, partial votes,
    like, two people might have voted and a couple people haven't
    voted yet. He obviously votes first. So he is actually
    expanding that.
        So I don't understand why the list that you are proposing
    on delegation would be problematic. It seems just copacetic
    with things we already do.
        Mr. Wheeler. I think you and I were together on that one,
    right, and we got outvoted.
        Mr. O'Rielly. Yes. I am comfortable with that.
        Mr. Latta. OK. Let me go on, Commissioner O'Rielly. As I
    understand, the advisory committees operating at the FCC must
    abide by the Federal Advisory Committee Act, FACA, which
    contemplates that such committees will furnish expert advice,
    ideas, and diverse opinions to the Commission.
        To that end, the rules implementing FACA direct agencies to
    develop procedures to assure that the advice or recommendations
    of advisory committees will not be inappropriately influenced
    by the appointing authority or by any special interests, but
    will instead be the result of the advisory committee's
    independent judgment.
        So the question: What steps has the FCC taken to assure
    that the advisory committees can exercise their own independent
    judgment about what issues are important and the conclusions
    they draw?
        Mr. O'Rielly. So we do have an internal memorandum that
    deals with some of this, and it calls for balance in terms of
    makeup of an advisory committee. But I will say I do have some
    concerns with our advisory committees that operate today. I do
    worry, and I am working on a piece on this, and there are a
    number of concerns that come to mind, including that influence
    issue you just raised. Is there too much influence coming from
    a bureau?
        We actually have bureau chiefs sitting on advisory
    committees, even though there is an official designee from the
    Commission sitting on it, we have bureau chiefs sitting there
    dictating how the committee is supposed to function. And I just
    think that is problematic for how this independent body is
    supposed to operate and provide advice to us. I think that we
    are leading them in a direction that is problematic. There are
    a host of issues I am working on and I think we just need to
    take a second look at how we do advisory committees.
        One of the problems I have on advisory committees is--and
    no disrespect to the Chairman--but all of the authority on
    advisory committees, everything is in the Chairman's hands. He
    picks everybody. He picks all the issues. I am sometimes
    invited to say nice, kind things, and I do, and they are nice
    enough to invite me and that is great. But there is a problem
    with that structure where everything is in his hands and I
    don't have any say in the structure of an advisory committee.
        Mr. Latta. Let me follow up and let me ask you on some
    concerns that have to do with the Downloadable Security
    Technical Advisory Committee. Are you familiar with that one?
        Mr. O'Rielly. I am. I will say only that the statute, that
    one actually doesn't provide me any authority. That is a
    statutory decision the committee made and that is all the
    Chairman's. So I haven't had any involvement in that one.
        Mr. Latta. You say you are not?
        Mr. O'Rielly. I am not involved.
        Mr. Latta. OK.
        Mr. Wheeler. Mr. Chairman, could I try something on that
    please?
        Mr. Latta. Yes.
        Mr. Wheeler. I actually was the chairman of an advisory
    committee and have a little experience on this issue on both
    sides of the table, if you will. And the committees are
    carefully balanced to begin with, both with expertise and with
    interests. And I can assure you that they have their own mind,
    and they have to have a vote to make their recommendations to
    the Commission.
        Mr. Latta. Let me just follow up. I know my time is up.
        But, Commissioner O'Rielly, in your opinion, do you think
    that the D-S-T-A-C, the DSTAC, has operated in an independent
    manner?
        Mr. O'Rielly. And again, I don't know as much about that
    one, the downloadable security committee. That is in the
    statute and that is the Chairman's prerogative.
        On the other advisory committees, I would say that I do
    believe they are being led in a direction by the staff that is
    not independent, and we need to improve the independence of the
    advisory committees.
        Mr. Latta. Thank you. My time has expired. And moving on,
    the chair recognizes the gentleman from Texas, Mr. Olson, for 5
    minutes.
        Mr. Olson. I thank the chair.
        And welcome to Chairman Wheeler and Commissioner O'Rielly.
        When Chairman Wheeler became the Chairman in November 2013,
    he ordered what is called an all-agency task force review. It
    was completed in February of 2014.
        My first question is to you, Commissioner O'Rielly. How
    much of that report has been acted on, percentage? What is
    outstanding, in your opinion?
        Mr. O'Rielly. So I don't have a good number. We have been
    getting a number of updates. But I think a fair amount has been
    adopted. There are some, definitely, points that are still in
    the works and some that probably won't make it to see the light
    of day. Is that fair?
        Mr. Wheeler. I think that is a fair analysis.
        Mr. Olson. Chairman, do you have any idea how much has been
    completed?
        Mr. Wheeler. We wiped out 1,500 backlogs, 8,000 Enforcement
    Bureaus, 57 percent of the backlog in the Media Bureau, 2,500
    that were longer than 6 months in the Wireless Bureau. I am
    trying to pull some others out. There has never been so much
    done in such a short period of time on literally thousands and
    thousands of items.
        Mr. Olson. Good to hear.
        Again, Commissioner O'Rielly, I want to talk about the
    Paper Reduction Act and the Regulatory Flexibility Act, the PRA
    and the RFA. Do you think the FCC takes their responsibility
    seriously with these two initiatives?
        Mr. O'Rielly. I think the agency takes its responsibility
    seriously. I think the work that is done is insufficient to
    meet the statutory obligations. In some instances, I have had
    to go back to staff and say: This doesn't actually match up
    exactly with the subject matter that we are talking about.
        I think it is really disappointing, and I have tried to go
    at that and get that improved, I am actually working on
    something on it, because I think it is really problematic what
    we do to address the statute enacted by Congress.
        In some instances, in Regulatory Flex, an item deals with
    small businesses and we cursorily pass over that issue. On
    paperwork reduction, we actually inflict a significant number
    of burdens with regard to reporting, and that especially
    applies to small providers. I mean, dealing with rate of return
    carriers recently and talking to them and the reporting burdens
    that they have and how much the cost is for them, it is pretty
    significant. And I think we have to go back and consider that,
    fix our reforms on both PRA and Regulatory Flexibility.
        Mr. Olson. Thank you.
        How about the biennial review of regulations, has that been
    taken seriously as well, the obligation of that review, in your
    humble opinion?
        Mr. O'Rielly. I have seen it in my past employment, not in
    this current role. I think in my past experience I would
    suggest that there probably could be improvements. It hasn't
    occurred under the current Chairman, so I am looking forward to
    an opportunity to aggressively use that section.
        Mr. Olson. What can the Commission do to get rid of the fat
    and clear it up?
        Mr. O'Rielly. The Chairman has outlined a number of things
    that we have already done. I am outlining a number of things
    that would improve the process. I think that in some regards it
    is maintaining aggressive attitude, I think, the Chairman and I
    both share. And I try to congratulate him when I can, and we
    have reduced the backlogs in many different areas.
        So I think he is committed to that. I am too. But we have a
    lot of work left to do. And I have been talking to a number of
    staff internally, and they will suggest: Gee, have you thought
    about this? This would make a good blog too.
        There are just really good ideas that are coming forward on
    things that they would be happy to scrap in the rules
    themselves. So things like that we really have to move forward
    on.
        Mr. Olson. What can we do in Congress to help you with your
    mission? Get out of the way?
        Mr. O'Rielly. Well, no. I think it is being very aggressive
    in oversight and making sure that when we do biennial review,
    that you have a very thorough look at what we are doing and
    making sure that you are looking at every corner and nook and
    cranny of the Commission's authority.
        Mr. Olson. And that is our job per this document, the
    Constitution of the United States.
        Mr. Wheeler. Can I follow up on that?
        Mr. Olson. Yes, sir. You are up.
        Mr. Wheeler. I wildly agree with what Commissioner O'Rielly
    has just said insofar as the oversight role. And I also agree
    with what he said about he and I have been working together. We
    don't always agree on things, but we have been making some
    serious progress. And this new task force that I have formed,
    you get to be the judge as to whether it is meaningful or not.
        I also think that the oversight role actually has more
    flexibility than the legislative role because the difficulty
    with legislation is it tends to be pretty black and white and
    the way things seem at that moment rather than have things
    evolve. And I think you ought to hold our feet to the fire.
        Mr. Olson. And that is our job.
        So one final question about the regulation that all
    decisions should be made within 30 days of the adoption, at the
    latest, of some new rule. Has that been complied with, yes or
    no, Commissioner O'Rielly, as a general rule?
        Mr. O'Rielly. There have been some items during my time
    that have not met that. They have not been met on the day that
    we voted on them. Whether it has gone 30 days, I actually
    haven't matched up the timeframe.
        Mr. Wheeler. I don't think there have been any 30-day.
        Mr. O'Rielly. I don't know how long after we have missed
    some, but there have been a number of them that have not been
    done on the day that we----
        Mr. Olson. Missed it more or missed it less? I mean,
    Chairman Wheeler, do you think you have hit the target more
    often than you have missed it?
        Mr. Wheeler. Well, 86 percent of all our decisions are done
    and published within 2 business days.
        Mr. Olson. OK. I am out of time. I yield back the balance
    of my time. Thank you.
        Mr. Latta. The gentleman's time has expired.
        The chair recognizes the gentleman from New Jersey, Mr.
    Lance, for 5 minutes.
        Mr. Lance. Thank you, Mr. Chairman.
        First to Commissioner O'Rielly. As you mentioned in your
    testimony, the chief argument against publishing items in
    advance is that it would be harder to comply with the
    Administrative Procedure Act's provision that requires the
    Commission to respond to every comment submitted. Can you
    recommend changes that would offset this issue?
        Mr. O'Rielly. What I have suggested, and I think it is
    contained in Congressman Kinzinger's bill, is that there be one
    document that is actually published, in addition to what we
    already make available, and we would still be able to respond
    during that 3-week period to any new arguments that are raised.
    Most of the arguments are going to be old and already worked on
    and already addressed. So it is really only new arguments.
        There are 2 weeks where we have that process, and then we
    have a week of sunshine where we just kind of talk amongst
    ourselves. No one is allowed to lobby us or to talk with us.
    That is plenty of time to deal with any new issue that could be
    raised.
        What I have said, in rare instances, very rare instances,
    it may take a little bit more time in the most complicated
    situations where we may need to address those issues, and that
    means that the item may need to be bumped by a week or maybe a
    full month at most. But during that entire time, we are still
    under sunshine and no one can lobby us.
        So in that case the staff would have 4 weeks to address any
    new arguments that came forth. That should be plenty. I have
    worked with these staff members. They are capable of addressing
    any new arguments that come in and that shouldn't be
    problematic.
        Mr. Lance. Thank you very much.
        And to you, Mr. Chairman, you have indicated in your
    testimony that there have been over 950,000 delegated items
    issued by the Commission. And I believe, to quote you, the vast
    majority included routine wireless, radio, and broadcasting
    licensing and transfers. And I certainly agree that you
    couldn't possibly review all of those matters.
        As I understand the purpose of delegation, it is to allow
    the FCC to act on routine matters for the sake of expediency,
    and I agree with that. But I am concerned about the fact that,
    as I understand it, the AWS-3 geographic coordination zones
    adopted by the FCC back in March was done in this manner. And I
    would like your comments on that, if possible, Mr. Chairman.
        Mr. Wheeler. Thank you, Congressman. I am glad you asked.
        The reality in the issuance of the public notice on AWS-3
    was we were actually in a race to meet the auction deadline,
    because you all told us we have to have an auction done by this
    point in time.
        The topic was how the coordination zones work. We are
    sharing spectrum with the Department of Defense. How those
    zones work was essential to the bidders for them to know enough
    in advance so that they could bid.
        The Republicans on the Commission wanted to see the maps.
    The maps were actually still being worked on by the Defense
    Department. But the maps were irrelevant because the issue in
    the PN was the coordination inside whatever those maps may be,
    and the geography involved was irrelevant.
        We put this on circulation. And after 2 weeks of there
    being a majority of the Commission that had voted in favor of
    it and the Republicans saying that they were not going to vote,
    while everything was tick, tick, tick, ticking up in and the
    bidders needed to have this information, I said, ``Hey, look,
    guys, if you can vote it quickly, let's do it. If not, I am
    going to pull it off and put it on delegated authority, because
    there is delegated authority, because this is information, not
    policy.'' And that was what ended up happening.
        Mr. Lance. Thank you.
        Mr. O'Rielly, would you like to comment on that?
        Mr. O'Rielly. I feel a need to respond only in the sense
    that I am defending my colleague who is not here. Commissioner
    Pai actually had the bigger concerns on this issue.
        Mr. Lance. As I understand, yes.
        Mr. O'Rielly. I think he has the right to define what is
    sufficient for him to make a decision. So when the Chairman
    says the maps are irrelevant, I think my colleague is the one
    who gets to pick what he thinks is the information necessary
    for him to make a decision. I don't think it is appropriate for
    us to say: No, you don't get to look at that, you don't need to
    see that for purposes of making a decision, and, by the way, we
    want your vote at X time.
        Mr. Wheeler. But the important thing is, the important
    thing, Mike, is that because it is on circulation it just sits
    there and nothing happens. If you don't like it, if there is
    not enough information to vote, vote no.
        But the fact of the matter is that a majority of the
    Commission had voted. And what we could not move, the will of
    the majority was being thwarted by exploiting the procedural
    rules of the Commission by not voting. And that is the kind of
    thing that would be harmful to the auction, was harmful to
    those who would be bidding in the auction. And since this was
    information, not policy, I said, ``OK, if you are not going to
    vote, then we will put it on delegated authority.''
        Mr. O'Rielly. I would only respond. Again, Commissioner Pai
    had stronger views on this. And I would be happy to vote no if
    that is the case.
        But I would say the Chairman leaves out one detail: That in
    that circumstance where three votes have actually been cast, it
    does trigger ``must vote.'' And therefore we have a time period
    under our rules where we must vote or it goes forward.
        So if the three majority Commissioners have already voted,
    must vote has already been triggered and therefore there was a
    specific end date.
        Mr. Lance. Thank you. My time has expired.
        Mr. Latta. The gentleman's time has expired.
        The chair now recognizes for 5 minutes the gentleman from
    Kansas, Mr. Pompeo.
        Mr. Pompeo. Thank you, Mr. Chairman.
        I have a series of yes-or-no questions. But before I do,
    when we started this hearing today Chairman Walden made some
    comments that some folks on the minority side said they were
    concerned that they were attacking the Chairman, who is a
    public servant. I agree with that. They then proceeded to talk
    about a bill that attacks a private citizen. They introduced a
    bill called the Keeping Our Elections Clean Act, the acronym
    for Koch Industries. So I guess it is better to attack a
    private citizen who is going about his business trying to make
    money than to attack someone who has entered public life. I
    just find the hypocrisy quite remarkable.
        Ms. Eshoo. If the gentleman yields?
        Mr. Pompeo. No.
        Ms. Eshoo. No?
        Mr. Pompeo. Not now. You have had ample time.
        Mr. Chairman, I have a series of questions. I would hope
    that you could answer each of them yes or no.
        Back on March 4, I asked your managing director for a
    series of interim reports produced by the consultant you hired
    with regard to your proposal to close offices. A few days
    later, my staff was told by FCC personnel that they could not
    provide us with the final report.
        Last week, on the 23rd of April, I, along with Chairman
    Upton, subcommittee Chairman Walden and Murphy, requested all
    internal and external FCC documents be provided about that
    decision to shutter 16 of the Commission's 24 field offices. We
    are now a couple of months after our initial requests. All we
    have received is a 2-page memo and 35 slides. Will you provide
    the committee those documents.
        Mr. Wheeler. What we are in the process of doing right now,
    sir, is making sure that personally identifiable information is
    removed so that they will be available to the committee.
        Mr. Pompeo. Great. So once you get the PI gone, we will
    receive those documents? Is that a yes?
        Mr. Wheeler. Yes.
        Mr. Pompeo. Thank you.
        Did you hold a competitive bidding process to select the
    consultants who analyzed the Enforcement Bureau's field offices
    and produced the report that recommended closing most of those
    offices?
        Mr. Wheeler. We did it through establish procurement
    procedures, which include competitive bidding.
        Mr. Pompeo. That would be no? My question was, yes or no,
    did you have a competitive bidding process?
        Mr. Wheeler. I don't know whether there were competitive
    bids for this. I can find that answer and get it for you.
        Mr. Pompeo. So I am 0 for 2 in getting yes-or-no answers. I
    am going to keep plugging away.
        Will the closure of 16 of 24 field offices negatively
    affect your commitment that a 99 percent response rate can be
    preserved on complaints for interference of public safety?
        Mr. Wheeler. No.
        Mr. Pompeo. There we go, one for three.
        Mr. Wheeler. Thank you.
        Mr. Pompeo. Do you believe that there are any circumstances
    under which a designated entity should be able to use bidding
    credits to win spectrum at an auction and then lease 100
    percent of that spectrum to a nationwide wireless carrier?
        Mr. Wheeler. It depends on what the designated entity rules
    are, and today they permit that.
        Mr. Pompeo. So you think the answer to that question is
    yes?
        Mr. Wheeler. What I am saying is the rules, as they exist
    today, that the answer is yes on the rules today. As you know,
    we are going through the process of reviewing those rules.
        Mr. Pompeo. Have there been any instances during your
    chairmanship when two or more commissioners have asked that you
    all commissioners an opportunity to cast an up-or-down vote on
    an item but you chose instead to direct a bureau to release the
    item?
        Mr. Wheeler. There is probably something that you have in
    your notes there that I can't recall off the top of my head. I
    don't know the answer to that, sir.
        Mr. Pompeo. On March 11, 2014, there was a Public Safety
    and Homeland Security Bureau release. A public notice to
    commissioners requested a Commission-level vote on the item and
    you instead directed the bureau to release that. Does that ring
    a bell?
        Mr. Wheeler. It doesn't ring a bell, but I will be happy to
    look into that.
        Mr. Pompeo. I would appreciate that.
        It is my understanding that that is unprecedented, that
    that had not happened before, when one or more commissioners
    had asked for a Commission-level vote and yet hadn't received
    one.
        Mr. Wheeler. Well, that I can answer no to.
        Mr. Pompeo. So that has happened before?
        Mr. Wheeler. But it is precedent.
        Mr. Pompeo. I would appreciate you providing the examples
    when that has happened previously because we were unable to
    find them.
        Mr. Wheeler. Sure. Happy to.
        Mr. Pompeo. On November 10 in 2014 did you circulate an
    order to your fellow commissioners regarding the Comcast-Time
    Warner Cable and AT&T-DirecTV merger proceedings and tell your
    fellow commissioners that if they did not cast their votes by
    the end of that day, that third parties would be provided with
    access to those contracts?
        Mr. Wheeler. I am not sure I understand your----
        Mr. Pompeo. So the question is, there were a series of
    contracts, it is my understanding that you told your fellow
    commissioners that if they did not cast their votes by the end
    of the day on an issue, that you would release these
    contracts----
        Mr. Wheeler. On what issue? I am not sure----
        Mr. Pompeo. I don't know the issue. I will submit it for
    the record.
        Mr. Wheeler. If you can get me, I will be happy to give you
    a yes or no----
        Mr. Pompeo. I would be happy to. I don't know the substance
    of that issue.
        Mr. Chairman, I yield back the remaining 2 seconds.
        Mr. Latta. The gentleman yields back his last 2 seconds.
        The Chair now recognizes and apologizes to the gentleman
    from Kentucky, recognized for 5 minutes.
        Mr. Guthrie. No problem at all, Mr. Chairman. Thank you for
    the time.
        Chairman Wheeler, I will ask you this question first. In
    your explanation of the workings of delegated authority you
    state that, quote: ``Either the Commission has specifically
    delegated authority to each of the relevant bureaus and offices
    to decide matters that do not raise new or novel issues or the
    Commission in its orders has made specific delegations to the
    bureaus to decide certain substantive issues.'' That is
    unquote.
        So it seems to me that if a matter raises issues that are
    new or novel, they need to be deliberated among the full
    Commission. Correct?
        Mr. Wheeler. The answer is the Commission votes on an issue
    and directs the bureaus to implement that issue, not to go make
    policy themselves.
        Mr. Guthrie So anything that is new or novel has to be the
    full Commission?
        So my next question for Commissioner O'Rielly. Last year,
    you and Commissioner Pai criticized the Chairman's decision to
    direct the Wireless Telecommunications Bureau to adopt the
    Commission's annual wireless competition report on delegated
    authority. Can you elaborate on why you disagreed with that
    decision?
        Mr. O'Rielly. It is my understanding that this is a report
    required by Congress that has been typically, in most
    instances, voted on by the full Commission. Here we were
    delegating it to the staff, which made no sense to me. And I
    thought I am comfortable voting on it, what is the problem with
    that? But it was removed from my ability to vote. So I think
    that is problematic.
        We look at other reports that we have, and the Congress has
    a requirement on video competition. In there it says the
    Commission shall report. And there we have typically actually
    had the Commissioners all vote on those issues. So, to me, it
    seemed like there was a direction we were going on this report
    that I thought was problematic, and I think that we should have
    had the opportunity to vote on that report.
        Mr. Guthrie. Do you care to comment?
        Mr. Wheeler. Yes, sir.
        Mr. Guthrie. OK.
        Mr. Wheeler. Thank you, Congressman.
        The reality was that it was on circulation. There were
    three votes that had voted for it on circulation. And one
    commissioner demanded that we include a data roaming decision
    in this vote. And I said: OK, we will include data roaming if
    you will promise not to delay the circulation. Because remember
    the discussion we had, you may not have been here, a minute
    ago.
        Mr. Guthrie. Yes. I saw it.
        Mr. Wheeler. The problem is that it could just lie there.
    And, yes, Commissioner O'Rielly is correct that there comes a
    must-vote situation, but must-vote is kind of a laugh because
    it just triggers something that is weeks away.
        And there was no assurance. I said, ``Look, let's vote.
    There is a majority that has decided. You can't just sit on
    this. If you will give me the assurance you will vote, I will
    put the other item in there as well and we will vote on
    everything.'' And he would not give me that assurance. I said,
    ``OK, I will move it on delegated authority.''
        Now, the interesting thing is that this is the same thing
    that Chairman Martin did throughout his tenure during the Bush
    years.
        Mr. Guthrie. I want to ask you one more question.
        Mr. Wheeler. He moved it on delegated authority.
        Mr. Guthrie. OK. So I have another question I want to ask
    you. I understand in the open Internet proceeding the
    Commission granted temporary small business exemption from the
    order's transparency obligations. The order says that the
    Consumer and Governmental Affairs Bureau, the CGB, will issue
    an order regarding whether the exemption will be permanent by
    December 15.
        So my questions are: When should small providers expect to
    see a notice issued that will give them opportunity to comment
    on the need for the exemption to be made permanent?
        Mr. Wheeler. Thank you, Congressman.
        I can't give you an exact date. The order hasn't even gone
    into effect now. But clearly we have to have a notice on that
    that will fire people up to say: Hey, this is what is going on.
    And we fully intend to do that.
        Mr. Guthrie. OK. And do you intend to do this on delegated
    authority? Do you think it will be a Commission vote?
        Mr. Wheeler. Well, the Commission delegated the authority
    to the CGB to do that.
        Mr. Guthrie. Would you care to comment, Mr. O'Rielly?
        Mr. O'Rielly. Well, I would only comment, that as everyone
    knows, I didn't vote for the item, but that gets to the point
    earlier that I now no longer have any involvement in that
    delegation. That issue is gone. And so my ability to weigh in
    on that item, whether it should be extended for small business,
    I don't have any say. It is problematic.
        That is what we are trying to get at in terms of
    delegation, both the reforms in terms of the timing of what is
    happening, but also the ability to pull something back up so I
    have a chance to actually help out small business. In the
    current structure, that will be decided by the Consumer and
    Governmental Affairs Bureau.
        Mr. Wheeler. And for the purpose of something that the
    Commission has already voted on to say we should do it. And I
    think that this is just a question then how do you go forward
    with that, Mike.
        Mr. O'Rielly. No, no, I understand how it has worked out. I
    just say I no longer have any say in the matter.
        Mr. Guthrie. Thank you.
        And I only have a few seconds. I have one more question,
    but I will submit it for the record. Thank you, Mr. Chairman. I
    yield back.
        Mr. Latta. Thank you very much. The gentlemen yields back.
        The chair now recognizes the gentleman from Florida, Mr.
    Bilirakis, for 5 minutes.
        Mr. Bilirakis. Thank you.
        I was troubled to learn about the extent to which FCC staff
    has editorial privilege to substantially change and modify
    items after they are adopted. This strikes me as fundamentally
    flawed and opens the door for unaccountable changes.
    Representative Ellmers' proposal attempts to hold this practice
    accountable.
        Commissioner O'Rielly, can you elaborate a bit more on this
    practice and how the draft legislation could add more certainty
    and accountability to the process?
        Mr. O'Rielly. Yes sir, absolutely. In the items that are
    done at our open meetings there are a number of instances where
    staff has made changes after we voted, so we have decided some
    matter one way or the other; and then staff has gone forward
    and made substantial changes to the substance of the document,
    sometimes into the rules themselves, sometimes to the
    justification part of the equation.
        And I have had problems with that for a couple of reasons
    because they are sometimes addressing ex partes; they are
    addressing other issues. And even in some instances they are
    addressing dissents that have been filed. In a couple items
    that I have dealt with on the Connect America Fund they were
    addressing in a pretty disparaging way critiques done by my
    colleagues on an issue. So they voted; they dissented. They
    said, I don't like this item. I don't like part of this item.
    And the staff was writing out why they were wrong and actually
    doing it in a very negative way, and I had to pull back and
    say, wait a second here. This is not working very well where
    the changes are happening after we have all voted. We are
    making changes to the substance, and you are making disparaging
    comments to and about my colleagues. I just can't----
        And those are instances where I have actually voted in
    favor of the item. So I have tried to pull back on some of
    that. And I think that the editorial privileges process, and I
    have written about this, is pretty problematic. The editorial
    privilege itself does not exist in our rules, and that is why I
    now vote against it every time that we come to an open meeting
    because it is granting authority that doesn't exist in any of
    our rules; and, you know, in fairness to the Congressman's
    question earlier, or to her statement, most of our rules are
    not actually codified. Most of them just exist in the ether.
        When I walked in the door my first day, they gave me a
    small binder on exactly what the rules are, subject to change
    at any given moment. So that is extremely problematic.
    Editorial privilege does not exist today, and I think that what
    is being done in that time period by staff is just
    inappropriate.
        Mr. Wheeler. So Congressman, can I try that because there
    is an important point. First of all, if there were disparaging
    comments, Mike, I am stunned. I am shocked, and nobody should
    tolerate it.
        Mr. Bilirakis. OK, now let me--I have got another question
    here----
        Mr. Wheeler. There is an issue here----
        Mr. Bilirakis. Briefly. Briefly.
        Mr. Wheeler. What he was talking about was he was
    responding to a dissent. We are required by the D.C. Circuit to
    respond specifically to dissents that are filed. So we can't
    just, the Court will not allow us to say, here is a decision;
    here is Mike O'Rielly's dissent. We then have to incorporate
    what he said in his dissent into our order----
        Mr. Bilirakis. OK, thank you, Commissioner----
        Mr. Wheeler. By order of the court and that is where this
    editorial----
        Mr. Bilirakis. I appreciate that. Thank you very much. I
    want to move on. Commissioner O'Rielly, could you please
    elaborate on the flaws in the current advisory commission. I
    know you touched on this, on the structure of the advisory
    committee, but if you could elaborate a little bit. How do you
    believe these important opportunities for ideas and evaluation
    can be improved? And you mentioned a hearing-like meeting
    proposal to gather independent testimony. Is that the best
    option for improvement in your opinion?
        Mr. O'Rielly. Our open meeting process is not structured
    and it is flexible, so we are now inviting witnesses depending
    on the chairman's desire. We will have witnesses come and
    provide testimony in favor of an item. They just basically sit
    there. They give their testimony, and that is the end of the
    discussion, but I didn't know they were coming in most
    instances. I might get notice the night before. I don't get any
    testimony of what they are actually going to say, and I don't
    have the opportunity to question them. So I have problems with
    having witnesses who are going to affirm the majority's
    decisions; sometimes in the majority, sometimes in the
    minority, depends on the item.
        But we are diluting the minority's view by letting them
    invite witnesses, and the minority is not allowed to invite any
    witnesses. So I think that our open meeting process needs to be
    fixed. If we are going to have a transparent structure at open
    meetings, I think that we need to seriously reconsider having
    any testimony from expert witnesses, or at least balance the
    conversation. I think it doesn't work very well today.
        Mr. Bilirakis. All right, very good. Thank you very much. I
    yield back, Mr. Chairman. Thank you.
        Mr. Latta [presiding]. The gentleman yields back the
    balance of his time. The gentleman from Illinois is recognized
    for 5 minutes.
        Mr. Kinzinger. Thank you, Mr. Chairman. And thank you all
    for being here and spending your afternoon with us. I know that
    is what you look forward to; but it is very helpful for us. And
    again, I appreciate your service to your country and being
    willing to do what you do. Even if we don't always agree on
    every issue, I respect you willing to step forward.
        You know, we talked about reforming certain processes at
    the FCC, and I often hear from those opposed that we shouldn't
    be changing the procedures of just one agency while not looking
    at all the agencies. Commissioner O'Rielly, do all the agencies
    follow the exact same procedure in regards to issuing,
    circulating, and publishing the text of proposed orders or
    rules?
        Mr. O'Rielly. Absolutely not. Most agencies, and I have had
    a great deal of experience with not only agencies that you
    oversee, but also those overseen by other committees in the
    Senate. There are vast differences in how they operate in terms
    of--and I'll give you an example----
        Mr. Kinzinger. Yes, give us some examples.
        Mr. O'Rielly. Examples that are different not just in terms
    of how they dispose of items, but I will give you an example
    from the FTC, something this committee knows very well about.
    There are two procedures, very interesting. One, the
    Commissioners of the FTC are actually, when the items come in
    they are actually assigned, including to minority members. You
    are an expert in this space. Now you get this issue. That
    doesn't happen at the FCC. All the power--everything is decided
    through the chairman.
        Two, they have the authority, and I have talked to FTC
    Commissioners on this--they have the authority that if three
    Commissioners vote together, they can ban the staff from
    working on an issue. So if they decide, gee, you know what? We
    think you are working on this, and that is completely wrong,
    and we don't want you working on it any more. The FCC doesn't
    have the same kind of thing. So that just gives you two flavors
    of how our agencies are totally different. And so the idea that
    we can't change anything within our agency; we have to do it
    uniformly across the board, is inaccurate because the agencies
    do not operate uniformly today. There is so much difference in
    how they operate and how their structures are done; and lot of
    it is because of their operating statutes.
        Mr. Kinzinger. Yes, that has got to be frustrating and, I
    mean, especially, with all the jurisdiction you have and
    everything. And again, And I like to remind people that it is
    definitely not going to be President Obama in a year and a
    half. It may be Republicans in charge in a year and a half, and
    I hope that we can press forward with opening up the agency as
    we are talking about here too.
        You talked about FTC. What is a good kind of model that you
    would point us to when it comes to other agencies that you have
    seen? If you don't have a great example, that is fine.
        Mr. O'Rielly. I don't know that I have a favorite. I spent
    a great deal of time examining problems that they have had in
    my past life. So I don't know that I have----
        Mr. Kinzinger. You have favorite practices.
        Mr. O'Rielly. Yes, there are definitely some practices that
    I liked, and I have highlighted two that I think would be
    interesting if we were to adopt at our agency. But separate
    from that, there are definitely some very expansive authorities
    that I probably would disagree with.
        Mr. Kinzinger. Let me ask you, too, do you believe that the
    publication of a white copied order would prevent private
    deliberation and exchange of ideas among the Commission
    offices?
        Mr. O'Rielly. No, I do not. And I appreciate your
    legislation, or draft legislation, on this issue. There are two
    issues that people generally raise about this idea that I
    originated and you also have talked about, and that is, the
    APA, which we have talked about a little bit here today, and
    then they also raise the question of FOIA. And would FOIA be
    triggered and would we be required to release our internal
    deliberations? And the answer is no. All of that is still
    protected under the exemption under FOIA. None of that would
    change. Our deliberations between offices would still continue
    the same way they operate today. We would have no change to
    that. There would be no information that would be more
    available in that circumstance. The only thing I am asking, and
    I think you said in your legislation is that one document be
    available, the white copy document be available----
        Mr. Kinzinger. Do you think that would harmfully impact the
    way stakeholders exchange information with the Commission?
        Mr. O'Rielly. I think it would actually really improve the
    process. I think the stakeholders would be able to home in on
    exactly what might be an issue, what may be a problem with the
    document itself. We had an issue in our 3.5 item just adopted
    recently. And in that item I was trying to get more information
    on what is called CAF, or Contained Access Facility, I believe
    it was called. And I couldn't get anyone to explain to me what
    exactly it meant. Finally somebody came in and they could talk
    to me a little bit, but I couldn't tell them what was actually
    in play. At the end of the day I said we need to get rid of
    this provision because we have no idea whether it is actually
    functional, whether it is violating, whether it is actually
    favorable to landowners or to building owners. I just didn't
    know what it was. I couldn't ask them questions about what I
    already knew. It was very problematic.
        Mr. Wheeler. And did we?
        Mr. O'Rielly. We did get rid of it.
        Mr. Wheeler. At your request?
        Mr. O'Rielly. Yes, yes, yes. I am----
        Mr. Kinzinger. I don't want this to be a debate between you
    two. I haven't yielded time. I have 30 seconds left is all.
        Mr. O'Rielly. I think it might be a good idea, because I
    can't feel comfortable voting for something that I don't what
    it is and there is only one advocate for it, and I can't get a
    good explanation.
        Mr. Kinzinger. I only have 15 seconds left, and
    unfortunately I want to say this. So it is sad when members of
    a commission feel completely disfranchised and feel like they
    don't have the tools to do their job. And I think we are not
    here, putting you, sir, on the hot seat. And I am sure you are
    on the hot seat. But we are not trying to be, attack, attack.
    But it is just there is concerns we have which is, look, we are
    all about transparency. And when we here members of the
    Commission saying, Look, sometimes I don't feel like I have the
    tools to do my job, that is a concern. With that I am going to
    yield back, and I appreciate again you guys both being here.
    Thank you.
        Mr. Latta. The gentleman's time has expired. And the chair
    now recognizes the gentleman from Ohio, Mr. Johnson, for 5
    minutes.
        Mr. Johnson. Thank you, Mr. Chairman. And, gentlemen, thank
    you both for being here today as well. Chairman Wheeler, in a
    response to one of our inquiries regarding process and
    delegated authority, you told us that a bureau or office may
    seek guidance from your office on whether an item should be
    voted on by the full commission even when it was within the
    scope of the bureau or office's delegated authority. So does
    the reverse ring true? When a bureau or office opines that an
    action should be done at a commission level, can the chairman's
    office direct that it be done at the bureau level anyway?
        Mr. Wheeler. No. What we try to do is make sure that we are
    following the instructions of the Commission vote, and I think
    the record speaks for itself since we----
        Mr. Johnson. But we are not talking about a commission
    vote. We are talking about when a decision is to be made and
    the bureau or the office says that the action should be taken
    at the commission level, you have delegated authority, and the
    bureau or the office opines that it should be taken at the
    commission level, can you direct as the chairman that it be
    done at the bureau level anyway; yes or no? Do you have the
    authority to do that?
        Mr. Wheeler. I presume, under section 5 that I could, but
    the record is clear that we have the lowest number of delegated
    authority decisions in my tenure.
        Mr. Johnson. Mr. O'Rielly, since the decision to use
    delegated authority is a legal one, do you have an opinion?
    Shouldn't the bureaus and offices go directly to the general
    counsel's office rather than to the commissioner's office for
    guidance on whether delegated authority should be used or not?
        Mr. O'Rielly. I would think that is the most appropriate
    place, yes.
        Mr. Wheeler. And I would assure you, sir----
        Mr. Johnson. I am talking to O'Rielly right now.
        Mr. Wheeler. I don't want to have----
        Mr. Johnson. Mr. Chairman, this is not your opportunity to
    pontificate.
        Mr. Wheeler. I would not do something----
        Mr. Johnson. The American people have asked us to ask you
    the questions. I am asking Mr. O'Rielly a question right now.
    So, Mr. O'Rielly, you think that that would be the appropriate
    place to do that.
        Mr. O'Rielly. Yes.
        Mr. Johnson. Mr. Wheeler, in response to one of our
    committee's inquiries, you provided us with the information
    regarding the number of enforcement actions taken by the field
    and the number of enforcement actions overall. For example, in
    2011, 88 percent of the actions were taken by the field. In
    2012, 76 percent of the enforcement actions were taken by the
    field. In 2013, 89 percent of the actions were taken by the
    field.
        So let me get this right. You want to close more than half
    of the field offices. Just looking at the impact in terms of
    bureau productivity, how do you intend to continue that level
    of enforcement activity from the few remaining offices? If I
    were to read between the lines, aren't you really talking about
    a wholesale retreat from the type of enforcement actions
    undertaken by the field like interference resolution and
    abandonment of the proactive enforcement work the field
    performs like tower inspections? And are the staff slots that
    are being opened by releasing the field staff from Federal
    service being moved to FCC headquarters? And I know you
    probably don't have off the top of your head the answer to all
    those questions, but could you update the committee and provide
    this type of data for fiscal year 2014 as well?
        Mr. Wheeler. Thank you, Congressman, and the answer is yes
    and we are doing this to get----
        Mr. Johnson. Yes, you will provide the data for 2014?
        Mr. Wheeler. I am going to give you some data right now.
    And we are doing it to get better efficiency. We have too many
    field offices where we have good people, but they are not
    effectively applied.
        Mr. Johnson. I am just asking you if you are going to
    provide the data. That is all.
        Mr. Wheeler. I am giving you some data. When we look at a--
    --
        Mr. Johnson. Let me ask you another question because I have
    only got a minute left. You have testified as part of your
    claim that things are improving at the FCC, that the
    enforcement bureau closed nearly 8,000 cases. Now, that gives
    me some pause because that seems like a big number. Were they
    closed because the FCC took enforcement action? Were they
    closed because the statute of limitations ran out and you
    couldn't take action? What are the numbers for those actions
    closed by positive FCC actions versus the ones closed by the
    statute of limitations running out? Were any of them closed
    because the enforcement bureau just said never mind?
        So can you provide us with a detailed analysis of the
    nearly 8,000 cases, identifying the type of alleged violation,
    the type of action taken, if any, and the reason that you
    closed the case?
        Mr. Wheeler. I can tell you about them right now.
        Mr. Johnson. Can you take that for the record? Can you
    provide us in written----
        Mr. Wheeler. I can tell you, the vast majority of those
    8,000 were indecency cases that Commissioner O'Rielly and I
    worked together to solve and worked with the various parent
    groups and others.
        Mr. Johnson. We would like a written response for the
    committee.
        Mr. Wheeler. I would be happy to give you, but it was
    thousands and thousands and thousands of cases we are holding
    up broadcast licenses.
        Mr. Johnson. My time has expired. We would like to see that
    if you would provide it to the committee.
        Mr. Latta. The gentleman's time is expired, and the chair
    now recognizes the chairman emeritus of the committee, Mr.
    Barton from Texas.
        Mr. Barton. I thank the chairman, and I apologize to Mr.
    Cramer and Ms. Ellmers for going ahead of them since I haven't
    been here all afternoon, but I think I have a pretty good feel
    for what we are a trying to do here. And I want to say on the
    record, Mr. Chairman, I support the three bills that we are
    having the hearing on. I think they are all reformative, and I
    think they are positive, and they are transparent; and I think
    the more of that the better.
        I want to ask the chairman of the FCC what you would think
    if we operated the Congress like the FCC is operating. In other
    words, we are about to have a vote on the budget agreement with
    the Senate sometime this evening. That budget is on the
    Internet. Every Member of Congress will show up, and I am
    assuming there is going to be a roll call vote where we vote
    yes or no. We don't delegate it to staff. We don't delegate it
    to anybody. It is open; it is transparent, and it is immediate.
    How would you feel as a citizen if we didn't do that?
        Mr. Wheeler. I think it is a really good point, Mr. Barton,
    and I recognize that you then turn around and delegate things
    to us, and we are talking about how do we deal with that
    delegation from the Congress. And I believe that we work
    fulsomely to try and adhere to what the statute tells us that
    we ought to be doing as you make your delegation, and that also
    includes how we make our delegation.
        Mr. Barton. Well, you are in the executive branch. You are
    supposed to implement the laws.
        Mr. Wheeler. We are independent. Please, don't throw me in
    the executive branch.
        Mr. Barton. Well, you are appointed by the President of the
    United States. You are confirmed by the Senate.
        Mr. Wheeler. Confirmed by the Senate.
        Mr. Barton. You are not a part of another agency, but you
    are an executive Federal agency. You implement the
    communication laws of the United States, not you personally,
    but the Commission that you are the chairman of. There is
    nothing in statute that says the FCC should operate, to put it
    as positively as possible, semi-secretly.
        Now, I have been in the offices of the chairman of the FCC
    under a different administration and watched that particular
    chairman have a discussion and then push a button voting on an
    order. And I was told at the time as soon as a majority of the
    Commission pushed the same button, it was passed. Do you still
    do that? I don't even know what that is called.
        Mr. Wheeler. No, it doesn't. That is called voting on
    circulation. And there is an electronic system. You are
    absolutely right, and you are welcome to come visit any day,
    sir, and I hope you would. The difficulty with that is that
    when you get to three, majority does not rule, and one of the
    discussions we were having here previously is how the other two
    can sit on an item and keep the decision from being made and
    that that can extend for weeks and weeks and weeks under our
    processes. So you are absolutely right as to the process, and
    everybody pushes a button.
        Mr. Barton. My point is, and I am not as technically up to
    speed on the reform bill as the full committee, subcommittee
    chairman and some of the Members that have spoken and have
    these bills before us; but it would seem to me that we should
    operate our executive branch agencies as closely as possible to
    the way we operate the House and the Senate, especially the
    House, which is the people's body. We are instantaneously
    transparent on every vote in the committee if it is a roll call
    vote. Now, not all are roll call. Some of them are voice votes,
    but if it is a roll call vote, it is live over the Internet.
    Not everybody watches it, but we know what we are voting on.
    The public knows what we are voting on. The public knows how we
    vote as soon as we vote. And in many cases they have access to
    the material we are voting on almost the same time that we do.
        I support these three bills. I would hope, Mr. Chairman,
    that you would change your mind. Transparency is a good thing.
    There is no harm that is going to be done by letting the public
    know and the stakeholders know what you guys and you men and
    women are thinking about and what you are going to vote on and
    how you vote when you vote. And with that, Mr. Chairman, I
    support the bills, and I yield back.
        Mr. Latta. The gentleman yields back the balance of his
    time. The chair now recognizes the gentleman from Missouri, Mr.
    Long, for 5 minutes.
        Mr. Long. Thank you, Mr. Chairman. And Chairman Wheeler, do
    you think that your management is kind of top heavy, or do you
    think that you have streamlined it as far as management of the
    agency?
        Mr. Wheeler. I am not sure what you mean by top heavy, sir.
        Mr. Long. Well, back last time, I think it was the last
    time you were here, you said that it appeared that staff slots,
    if they left from the field office closings, they are not being
    moved to the headquarters; and now according to the Web site
    back in 2009, there were 8 people in the front office of the
    enforcement bureau, and now there is 16. And that is the type
    of thing that I am asking about, if there is not being people
    moved to the office, why do you need to double it?
        Mr. Wheeler. I am not trying to double it. There is nothing
    in the field office that is involved in increasing the
    headquarters office, with the exception of we would move one
    field manager there, so you have overall control. The goal of--
    --
        Mr. Long. I am talking about the people assigned to the
    front office of the enforcement bureau.
        Mr. Wheeler. Pardon me?
        Mr. Long. The people that are assigned to the front office
    of the enforcement bureau.
        Mr. Wheeler. Yes, sir.
        Mr. Long. That is what I am referring to.
        Mr. Wheeler. I don't know how many there are. I can get you
    the answer. But the goal, what we are trying to do in the field
    office reorganization is to put together a structure that is
    much more efficient in the way in which we do our job. I mean,
    the difficulty is that, yes, you have got a Denver office, but
    the problem is in Tulsa, and, or it is in some small town, and
    you have to go to that.
        Mr. Long. Well if you close an office in Kansas City, and
    the broadcasters and people now have to go to either Chicago or
    Dallas to have frequency questions answered or things, that
    doesn't seem efficient to me. I know that you have had a lot of
    things going on today and a lot of things the last few times
    you have been here, so I wouldn't expect you to know
    definitely. But again, according to the Web site, the FCC Web
    site, in 2009 there were 8, and now there is 16 people in the
    front office.
        Mr. Wheeler. But that is unrelated to this. Let me talk
    about the Kansas City office because you deserve to know.
        Mr. Long. OK. I am from Missouri. You got to show me.
        Mr. Wheeler. We have four full-time execs, four FTEs, two
    of whom are EEs, electrical engineers. We are spending $1,000
    per person per square foot, per person, for rent on that. The
    average that we spend in Washington is $272. So we have space
    in all of these offices that is off the chart in terms of what
    we are having to pay for operating expenses. And in Kansas
    City, we have the second least number of radio frequencies of
    the entire country.
        Mr. Long. How does that--on the thousand dollar per square
    foot or whatever, how does that correlate to your total office
    expense for Kansas City compared to Washington?
        Mr. Wheeler. You have $658,000 that we spend on four people
    in Kansas City, and there is in the Kansas City office 0.15 RF
    matter handled per week.
        Mr. Long. Could you be more specific on that?
        Mr. Wheeler. All I am saying is that is the process that we
    had to go through. This is a question of where do you put your
    bodies, because the problems are out there, and the problems
    aren't solved any better because you have 24 offices. How do
    you reduce the cost so that you can increase and always have
    double Es who are on the case and restructure the offices so
    that you are either an hour and a half drive or less than a two
    hour plane flight to get to cover the United States? Because we
    want to keep it out there.
        Mr. Long. How does the Kansas City office per square foot
    compare to Chicago or Dallas where people in my neck of the
    woods will have to go now?
        Mr. Wheeler. I can tell you the Houston office is $620 per
    square foot per employee. The Portland office is $2,000 per
    square foot.
        Mr. Long. Chicago, do you have Chicago?
        Mr. Wheeler. I don't have Chicago. I can get it for you.
        Mr. Long. OK. If you will, I appreciate it.
        Thank you, and with that, Mr. Chairman, I yield back.
        Mr. Latta. Thank you very much. The gentlemen yields back,
    and the chair now recognizes the gentlelady from North
    Carolina, Ms. Ellmers, for 5 minutes.
        Mrs. Ellmers. Thank you, Mr. Chairman. Hi, Mr. O'Rielly, I
    have a question for you, and I also have a question for Mr.
    Wheeler.
        Commissioner O'Rielly, I think it has been discussed
    already. Apparently you kind of stirred things up back in
    February at a meeting, and so I don't need to go into the
    details. You were there. You lived it. But I am interested in
    the claims of deliberative process privilege, and I know that
    has already been brought up here. Meaning that a document is
    privileged because it contains advisory opinions,
    recommendations and deliberations that would be a normal part
    of the process by which government decisions and policies are
    formulated.
        I understand that the whole point is to allow policymakers
    to engage in open, frank discussion on policy matters. This is
    what needs to happen in an open, honest fashion. But isn't the
    Commission done with substance of policymaking by the time a
    vote occurs?
        Mr. O'Rielly. I believe it should, and that is why I am in
    favor of the bill that you are contemplating and drafting. I
    think that it should be done, most of it should be done by the
    day that we vote. To add a lot of substantive content after the
    time period creates a number of problems that I have
    articulated already, and I just think that that is the way it
    should be done.
        Mrs. Ellmers. So you, and there again, just to reiterate
    your comments and your position, you believe that it should be
    an open process, before, during, and after?
        Mr. O'Rielly. Yes. There are definitely going to be moments
    when we talk to internally that are not going to be public, and
    that is acceptable, but in terms of the document that we vote
    on, I am very comfortable making that available. I think we
    should vote on that, and then it should be released. Your bill
    gets to the rules themselves, and I think that is a good idea.
        Mrs. Ellmers. Because I think transparency is obviously the
    way to go on any of these issues. So Commissioner Wheeler, with
    that, I understand that after the documents have been cleaned
    up for publication, which is, I understand, after editorial
    privileges have been exercised, the commissioners who voted yes
    are permitted to review the approved documents, but those who
    have voted no do not have that privilege. Is that correct?
        Mr. Wheeler. That is correct.
        Mrs. Ellmers. And why is this? Why do you believe that if
    someone has voted no, that they no longer have that privilege?
        Mr. Wheeler. The majority has made the decision, those who
    voted no are against the concept, and so as you refine that
    concept, it is the majority that has ruled.
        Mrs. Ellmers. But we are all adults, so if something goes
    forward, even if you have a no vote--you still should have a
    say so. I just want to point something out. A couple of times
    now during the subcommittee hearing, you have interjected your
    comments even though they weren't directed to you as a
    question.
        So what you are doing is so incredibly hypocritical to this
    process. You say that someone who votes no therefore has no
    more say so in the issue, and yet here today when challenged on
    an issue, you have interjected yourself; so you obviously
    believe that there should be further conversation. So I find
    that a little curious. As we move forward, we get a chance to
    talk about the issues, even if we aren't necessarily behind the
    issue. This is something that I want to see happen with the FCC
    as well. And I will just finish, Commissioner O'Rielly.
        Mr. Wheeler. Do you want me to respond to that?
        Mrs. Ellmers. No. Actually I was making an observation.
        Mr. Wheeler. There is an error in your logic----
        Mr. Latta. The lady has the time.
        Mrs. Ellmers. Commissioner O'Rielly, in your opinion, how
    do you believe a dissenting opinion should be treated after the
    fact?
        Mr. O'Rielly. I can only correct one thing from the
    chairman. We do actually see the item. We just don't have any
    input into it if we----
        Mrs. Ellmers. You can't comment on it.
        Mr. O'Rielly. I do see it. I don't want to give anyone a
    misimpression. We do see it. I believe that even dissenters
    would have valuable input into the process. When I was in the
    majority when I worked here, we would always talk to the
    minority and say we know you voted no, but do you have a good
    idea? Is there something we missed here----
        Mrs. Ellmers. Right. And help us to understand where you
    are on the issue.
        Mr. O'Rielly. They would have really good ideas during the
    time. You know what; you didn't think of this. Even though I
    voted no, I want to make it a good document. And so I always
    thought that was helpful. We don't have that opportunity.
        Mrs. Ellmers. Mr. O'Rielly, I just want to say that I
    certainly associate myself with your position on this, and I am
    very much looking forward to our bills, all three of our bills
    moving forward.
        Ms. Eshoo. Would the gentlewoman just yield for a few
    seconds?
        Mrs. Ellmers. That is fine. I have 15 seconds left.
        Mr. Latta. Did the gentlelady yield?
        Mrs. Ellmers. That is fine, yes.
        Mr. Latta. Ten seconds.
        Ms. Eshoo. Thank you. I appreciate it. I just want to
    insert maybe some pragmatism here. You know, we voted on bills
    today and I believe yesterday in the full committee. I don't
    have any opportunity to change those bills after I have voted
    no.
        Mrs. Ellmers. We are over time, so I am going to pull back.
    But we are not talking about changing votes. We are just
    talking about----
        Ms. Eshoo. We are changing the substance of the no vote. I
    can't go back and change the language. There is no such thing.
        Mr. Latta. The lady's time is expired.
        Mrs. Ellmers. Yes, my time has expired.
        Mr. Latta. The chair now recognizes the gentleman from New
    York, Mr. Collins, for 5 minutes.
        Mr. Collins. Thank you, Mr. Chairman. My question is
    directed to Commissioner O'Rielly. How are you doing?
        Mr. O'Rielly. Good.
        Mr. Collins. Do you watch the Buffalo Bills here to see how
    they are drafting?
        Mr. O'Rielly. We don't have a draft pick for a little bit.
        Mr. Collins. No they are working on that.
        My question also deals with the transparency issue, and in
    the Title 2 order, the FCC delegated unprecedented authority to
    its enforcement bureau to investigate and fine companies, even
    in situations where the FCC hasn't yet decided what rules are
    going to apply to broadband services. So specifically, the
    Title 2 order applies Section 222 of the Communications Act to
    Broadband Services, which I imposes duties on providers to
    protect certain customer information. But Section 222 itself is
    by design not specific, and nobody knows what it is, what it is
    not, just by reading it.
        The order says Section 222 applies right now to broadband
    and at the same time forebears from the specific rules the FCC
    has on the books that implement Section 222. And this week the
    FCC held a workshop to figure out what all this means. Isn't
    this backwards? And how is anyone supposed to know what the FCC
    expects if the Commission just turns the enforcement bureau
    loose on them with no rules to actually enforce.
        Mr. O'Rielly. I would only caution by saying I don't want
    to get too far afield on this one issue because it obviously is
    a hot button issue for many people, and our reform effort is
    broader in my opinion. But to answer your specific questions,
    there are deep concerns I have regarding how the Commission has
    approached Section 222. Separate from our Title 2 discussion,
    we have already done a couple items that I have dissented on in
    this space. We are using some of that precedent to go forward,
    which is problematic in my opinion. There are actually NALs
    versus a final decision; we are using that precedent to go
    forward.
        But to separate it out I would say I don't know exactly
    what is planned for in this instance. We did have a workshop. I
    am really worried that this provision will extend pretty
    extensively into the field not only on broadband providers, but
    it will continue to creep up the chain, up the virtuous circle
    that people talk about, to other providers. I was there at the
    time that 222 was drafted, so I can tell you it was a very
    narrow provision, and I think it is being misapplied as it
    currently is, and I think it will be misapplied going forward.
        Mr. Wheeler. But we don't have a rule on it.
        Mr. O'Rielly. That is right.
        Mr. Wheeler. We are going to have a rulemaking proceeding
    on just what you do with Section 222; and in that rulemaking
    proceeding, I am sure Commissioner O'Rielly and all five
    commissioners will be actively involved.
        Mr. Collins. So it is my understanding that last year the
    FCC proposed a $12 million fine against two companies for
    violating Section 222. In the notice of apparent liability
    issued against TerraCom and YourTel, the FCC announced a duty
    to keep certain information confidential and to provide notices
    to customers under Section 222 and at the very same time
    enforced that duty against the companies without warning and
    with no rules. Again, this seems backwards. Mr. O'Rielly?
        Mr. O'Rielly. Yes, I dissented on that item. The arguments
    you just presented were at the forefront of my discussion. I
    think it is extremely problematic what we did, not only the
    process that we went through, and you highlighted it there, but
    also the outcome. I think they have misapplied the statute. I
    think that it is far beyond what Congress implied, and that is
    why your question is so valuable.
        Mr. Collins. I would agree. Mr. Chairman, I know we are
    getting ready to vote, so I will yield back the balance of my
    time.
        Mr. Latta. The gentleman yields back, and the chair now
    recognizes the gentleman from North Dakota, Mr. Cramer, for 5
    minutes.
        Mr. Cramer. Thank you, Mr. Chairman and the ranking member
    for sticking around so long for me. Thanks to both of our
    witnesses, our distinguished public servants. Thank you both
    for being here.
        I often start my inquiry with the reminder that I spent 10
    years as a regulator in North Dakota on the elected North
    Dakota Public Service Commission. Our nice little three-member
    elected body, I have to admit that the sunshine of North Dakota
    and the transparency of North Dakota's Government at first
    seemed very clumsy to me. In fact, I kind of liked the idea of
    the old stories I heard about a couple commissioners get in a
    room, kick the door shut, decide the thing, and then come out
    and tell everybody what the decision is. But it did not take
    long for me to find the safety in the transparency.
        And when I ran for this job, I said I want to do for the
    United States what we have been able to do for North Dakota,
    lest the United States do to North Dakota what they have done
    to the rest of the country. And this transparency issue is a
    big deal to me, and I think it was those years on the
    commission where we never, I mean no two of us talked about
    anything in the men's room without appropriate notice and the
    length of notice, at least for the opportunity to have a
    hearing if not the notice of a hearing. And we had a lot to do.
    And we had a lot to do. When you have the fastest growing
    economy in the world, and we are sort of at the epicenter of
    most of it, including a lot of telecom, I might add.
        And never did efficiency trump transparency because
    transparency leads to trust. And there are many things about
    Congress and what I have learned here and several of the
    agencies where I feel good about being able to go back home and
    say, you know what; it is not as bad as you think. This is one
    situation where it is worse than people could imagine, in my
    view, at least by comparison to my experience as a regulator.
    The people in our State would never have tolerated this, and
    certainly the businesses wouldn't have.
        Let me just ask this. Do you ever see or think there could
    or should be an opportunity where at least on some issues,
    major issues, there could be an actual hearing where all of the
    members would be there and they would ask questions of
    witnesses much like we are doing now, or, you know, a more
    legal format, discovery, evidentiary hearing? Could we get to
    that point? Is there any reason that we could, or is there any
    reason why we shouldn't get to that point on more issues? And I
    would start with the chairman and----
        Mr. Wheeler. Yes, and we use both. We have discovery
    capabilities. And in the recent Comcast decision for instance,
    we used our discovery. We can hold hearings. We have been of
    late holding workshops, though, to get more involvement so it
    is less of this and more of getting informed people informing
    us. And, you know, for instance, Commissioner O'Rielly and I
    were the only commissioners who sat through six day-long
    sessions discussing the open Internet rule, you know, ways that
    we make sure that we have, you know, a fulsome discussion and
    record in that. So I think your points are very well taken,
    Congressman.
        Mr. Cramer. Mr. O'Rielly.
        Mr. O'Rielly. I would only add that--and I wrote about this
    recently--I do think that there can be an opportunity to have
    hearings with the five commissioners and explore issues. I
    would be open to that. It is an alternative to having people
    and witnesses at our open meetings where I think that is not a
    very effective use of time. Actually if we want to have a
    hearing, I think there could be an exploratory way to go about
    doing so, and I think that that something that might be
    valuable.
        Mr. Collins. I would just wrap up my time by saying when I
    was on the commission, we were a three-member, all Republican
    commission. We could have passed out any rule we wanted. We had
    two-thirds of the majority of our party in both chambers of the
    legislature. I never once thought it would be a good idea to be
    less transparent. Because, frankly, once I got used to the
    concept, I found great safe harbor in transparency, really.
        So I just want to tell you, and maybe with the remaining
    seconds, Commissioner O'Rielly, if Republicans became the
    majority and you became the chairman, would your position be
    any different than it is today?
        Mr. O'Rielly. I should caution and say I don't plan to be
    chairman. I probably will never be chairman. I don't sit there
    and dream about it, but I will tell you and give you my word,
    and you can mark this down, if that were to ever happen, I
    believe I will support every change that I have already
    proposed and all the changes I am going to suggest going
    forward to be implemented immediately at the commission.
        Mr. Collins. Thank you both for your service and your
    patience. And my time is expired.
        Mr. Latta. Well thank you very much. The gentleman's time
    has expired and to the committee right now I see that the good
    gentleman from Vermont, Mr. Welch has come, and we have 5
    minutes of allotted time.
        Mr. Welch. Well, I appreciate that. I was doing committee
    business, Mr. Chair. I was with Mr. McKinley, and we were over
    at the White House getting a bill signed that this committee
    passed. So I gave them your regards.
        Mr. Chairman, I note that our ranking member, Ms. Eshoo,
    has been really working on our committee to try to find things
    that will be helpful to the reform of the agency you are in
    charge of, so I want to be cooperative in that effort.
        You were asked to some extent, the question in this hearing
    is it about trying to give the FCC the opportunity to make
    reforms, or is it an opportunity for us to beat up on the FCC
    for doing its job? So I hope we can make some reforms. You have
    been asked some specific questions, so I just want to give you
    a chance to answer. You were asked about the disposition of
    8,000 enforcement decisions. Can you tell us what types of
    decisions those were.
        Mr. Wheeler. The vast, vast majority, thousands and
    thousands of them, were indecency complaints that were actually
    holding up license renewals for broadcast stations. And so when
    we were able to deal with those, which again, Commissioner
    O'Rielly and I worked together on this, because this is a
    sticky issue. OK. And that not only cleared off the enforcement
    agenda, but also then immediately let broadcast licenses go
    forward that were being held up if for no other reason than
    somebody had filed against them. OK.
        Mr. O'Rielly. If I can comment on that, and I completely
    agree with----
        Mr. Wheeler. Sure. Go ahead.
        Mr. O'Rielly. In reducing some of the backlog, cases were
    being dismissed because of Statute of Limitations, so we were
    trying to get away from that and reduce the backlog. But also
    in reducing the backlog, it provided us an opportunity to focus
    on those cases that do need to be addressed by the Commission,
    so it was both parts. We were actually just having this entire
    role being addressed, constantly going back and retooling
    agreements, and it was just taking forever----
        Mr. Welch. Sounds sensible to me.
        Mr. O'Rielly. Right. So then we were able to prosecute or
    move forward----
        Mr. Wheeler. In a wildly bipartisan manner.
        Mr. Welch. Great. You were asked about how the editing
    process works after the Commission votes on an order. Can you
    explain that process? By the way, an editing process is
    employed by courts like the Supreme Court. That is sort of
    standard practice, but how does it work in the FCC?
        Mr. Wheeler. Thank you, Congressman. That after a vote, if
    there are dissents, then it is required by the Court that we
    conform the order with the dissents just like happens in court,
    as you just indicated. The interesting thing is, and the topic
    that has been left out entirely of the discussion today, is
    that our rules also provide an opportunity for reconsideration.
    And that a final decision really isn't the final decision
    because an affected party can file and say, no, here is new
    data that you need to have, and therefore you need to
    reconsider. A commissioner or commissioners can file on their
    own motion for reconsideration, and so that has kind of been
    overlooked in this process today that this so-called final
    still has an opportunity for review, and that is, of course,
    even before it goes to court. And again----
        Mr. Welch. Has that been a longstanding practice at the
    FCC?
        Mr. Wheeler. Yes, sir.
        Mr. Welch. The other thing, Mr. Latta and I, as you know,
    are working together on a rural working group. Are there any
    suggestions you have now that you have been in your job for a
    while that would require congressional legislation to give you
    some additional room, with not necessarily more money, to be
    more flexible in personnel that you may need?
        I remember a discussion I think you had with Mr. Latta and
    I at the rural working group when you were explaining how it is
    pretty easy to hire a lawyer but pretty hard to hire an
    engineer. And I am a lawyer, but I think you need an engineer
    more than you need somebody like me.
        Mr. Wheeler. Thank you, Congressman. I think you just hit
    the nail on the head. We need economists and engineers, and it
    is difficult to hire them, and the process for hiring lawyers
    is much easier. And the bigger question here is that our budget
    is constantly being cut, and we are losing, we are now and we
    will be next year even lower, at the lowest number of FTEs in
    the history of the agency, the modern history of the agency.
        Mr. Welch. So in addition to the budget pressures, are
    there also some rule issues that are making it more difficult
    to hire engineers and economists versus lawyers?
        Mr. Wheeler. Yes, sir.
        Mr. Welch. And I would be glad to see those, and perhaps we
    could work together on trying to straighten that out.
        Mr. O'Rielly. Could I mention just one?
        Mr. Welch. Yes.
        Mr. O'Rielly. And that only to suggest that in some of the
    rule issues that we are trying to deal with now, one big issue
    that the chairman and I are trying to work together on is rate
    of return carriers. And part of the problem we have had is that
    the good staff has been, for a number of different reasons,
    migrating to the enforcement bureau; and so we are losing
    people from some of the substantive bureaus where we need them,
    and we have very few people left in some of the bureaus that
    actually work on these big-ticket items.
        Small handfuls of people are working on certain things. You
    would think out of 1,500 or 1,700 people, we would have had a
    bunch of people working on them. We don't. We have been growing
    enforcement and shrinking other places. I think that is
    problematic.
        Mr. Welch. OK. Thank you very much. I yield back.
        Mr. Latta. The gentleman's time has expired, and seeing no
    other Members present to ask questions, on behalf the chairman
    and the ranking member, I want to thank you, Mr. Chairman, and
    you, Mr. Commissioner, for appearing before us today and for
    your testimony and your answers to the questions. And seeing no
    further business to come before the committee, the subcommittee
    will stand adjourned.
        Ms. Eshoo. Mr. Chairman, and do members have X number of
    days to submit questions to the witnesses that they were,
    either didn't have the time to ask or were not here to ask?
        Mr. Latta. So ordered. Thank you very much.
        Ms. Eshoo. Thank you.
        Mr. Latta. Thank you very much.
        [Whereupon, at 5:18 p.m., the subcommittee was adjourned.]
        [Material submitted for inclusion in the record follows:]

                     Prepared statement of Hon. Fred Upton

        Transparency at all levels of government is critical to
    keeping the public trust. And as policymakers, whether on this
    committee, in Congress, or in government, we must embrace
    transparency with open arms at every opportunity. Today, we
    will have that chance with three bills that put the public's
    interest first.
        Transparency at the Federal Communications Commission has
    been an area ripe for improvement for quite some time. At issue
    today is not the content of the commission's actions, but the
    process by which their rules and orders are developed,
    considered, and implemented.
        I'd like to thank my three colleagues--Subcommittee Vice
    Chairman Latta and Representatives. Kinzinger and Ellmers--for
    stepping up to offer these thoughtful ideas to improve
    transparency and promote participation in the FCC's process.
    Their proposals will improve the FCC's accountability to the
    public and provide a real means for their participation in the
    commission's policy-making process and I fully support their
    efforts. They are policies we should all be able to get behind.
        We are not asking the FCC to do something that the Congress
    doesn't already do. Our bills are posted publicly, debated
    publicly, amended publicly, and voted publicly. These bills
    take meaningful steps toward bringing accountability to a
    commission comprised of those unaccountable to the electorate.
        Access to commission information and decision makers today
    is largely a function of proximity to our nation's capital.
    These proposals will turn that paradigm around and ensure that
    every American has the access to information that will
    meaningfully impact any part of their increasingly connected
    life. We should encourage more dialogue, not less--and that is
    what these draft bills will accomplish.
        We have talked at length about FCC process reform. I hope
    these bills can gain the bipartisan support they deserve, so we
    can help build a better agency that the public can rely on.
                                  ----------

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                     [all]