[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
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                    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.
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