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


    FCC REAUTHORIZATION: IMPROVING COMMISSION TRANSPARENCY, PART II

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

                                HEARING

                               BEFORE THE

             SUBCOMMITTEE ON COMMUNICATIONS AND TECHNOLOGY

                                 OF THE

                    COMMITTEE ON ENERGY AND COMMERCE
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 15, 2015

                               __________

                           Serial No. 114-43
                           
                           
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]                           


      Printed for the use of the Committee on Energy and Commerce
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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...........................................    30
Hon. Fred Upton, a Representative in Congress from the State of 
  Michigan, prepared statement...................................    65

                               Witnesses

Randolph J. May, President, Free State Foundation................    35
    Prepared statement...........................................    37
    Answers to submitted questions...............................    70
Stuart M. Benjamin, Douglas B. Maggs Chair in Law and Associate 
  Dean for Research, Duke Law....................................    47
    Prepared statement...........................................    49
Robert M. McDowell, Former FCC Commissioner, Senior Fellow, 
  Hudson Institute...............................................    56
    Prepared statement \1\.......................................    58
    Answers to submitted questions...............................    78

                           Submitted Material

Discussion draft on the FCC Process Reform Act...................     2
Representative Clarke's discussion draft.........................    21
Representative Loebsack's discussion draft.......................    25
Representative Matsui's discussion draft.........................    28
Letter of May 14, 2015, from the Federal Communications 
  Commission to the subcommittee, submitted by Mr. Walden........    67
Letter of May 15, 2015, from the Small Company Coalition to Ms. 
  Matsui, submitted by Ms. Matsui................................    69

----------
\1\ The appendices to Mr. McDowell's testimony are available at: 
  http://docs.house.gov/meetings/IF/IF16/20150515/103464/HHRG-
  114-IF16-Wstate-McDowellR-20150515.pdf.

 
    FCC REAUTHORIZATION: IMPROVING COMMISSION TRANSPARENCY, PART II

                              ----------                              


                          FRIDAY, MAY 15, 2015

                  House of Representatives,
     Subcommittee on Communications and Technology,
                          Committee on Energy and Commerce,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 9:17 a.m., in 
room 2322, Rayburn House Office Building, Hon. Greg Walden 
(chairman of the subcommittee) presiding.
    Present: Representatives Walden, Latta, Lance, Olson, 
Pompeo, Kinzinger, Bilirakis, Johnson, Collins, Eshoo, Welch, 
Loebsack, Matsui, and Pallone (ex officio).
    Staff Present: Ray Baum, Senior Policy Advisor for 
Communications and Technology; Leighton Brown, Press Assistant; 
Andy Duberstein, Deputy Press Secretary; Gene Fullano, 
Detailee, Telecom; Kelsey Guyselman, Counsel, Telecom; Grace 
Koh, Counsel, Telecom; David Redl, Counsel, Telecom, Charlotte 
Savercool, Legislative Clerk; Jeff Carroll, Minority Staff 
Director; David Goldman, Minority Chief Counsel, Communications 
and Technology; Lori Maarbjerg, Minority FCC Detailee; Margaret 
McCarthy, Minority Senior Professional Staff Member; and Ryan 
Skukowski, Minority Policy Analyst.

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

    Mr. Walden. I will call to order the Subcommittee on 
Communications and Technology for our legislative hearing on 
the ``FCC Reauthorization: Improving Commission Transparency, 
Part II.''
    And certainly welcome our expert witnesses here today. Good 
morning, and thank you for joining us here today to discuss a 
topic that I have long championed, and I am not the only one on 
the subcommittee that has done so, FCC process reform. I am 
pleased to announce that my colleague and friend, Ranking 
Member Eshoo, and I will reintroduce the FCC Process Reform 
Act.
    [The discussion draft follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Mr. Walden. This is a bill that passed the House in the 
112th Congress and the 113th Congress had passed unanimously.
    We are dedicated to improving the way that government does 
its business. We are introducing this bill again with the hope 
and expectation that the third time will indeed be the charm.
    We all agree that things could be better at the FCC. The 
Commission regulates an incredibly dynamic and innovative 
sector in the American economy. It ought to serve the public in 
a transparent and predictable manner. This is the best way to 
protect consumers and to provide stability for industry and for 
investors.
    Our bill would set procedural guardrails to protect against 
the potential for lapses in process. Specifically, our 
legislation would set goals for Commission process and would 
allow the FCC to determine for itself the best way to meet 
those goals. The objective is to grant the FCC significant 
latitude in setting its own deadlines in developing performance 
measures for program activities.
    The public will be able to measure the Commission's 
progress by means of annual reports detailing its performance 
in meeting the deadlines. And provided that the Commission 
threats the required rulemaking and inquiry process, the bill 
will also provide for nonpublic collaborative discussions among 
the Commissioners, which currently are prohibited by the 
Sunshine in Government Act.
    I am also pleased to bring several bills offered by my 
colleagues across the aisle before the subcommittee for 
discussion. I applaud their willingness to work with the 
majority on improving the FCC process, and I believe there is 
significant merit to the draft bill as offered. We are looking 
forward to working together on these bills.
    Representative Clarke's draft bill requires the FCC to 
publish a quarterly dashboard marking progress on petitions and 
complaints at the FCC, allowing the public to determine for 
themselves how efficiently the FCC is operating.
    [Representative Clarke's discussion draft follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Mr. Walden. Representative Loebsack's bill would require 
the chairman to publish the internal procedures at the FCC 
which would, for the fist time, allow the public to actually 
understand how decisions are made when the Commission goes 
behind closed doors to amend the proposed rules.
    [Representative Loebsack's discussion draft follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Mr. Walden. And Representative Matsui's bill would 
encourage the FCC to improve access to government for small 
businesses. These are all fine ideas that can gain bipartisan 
support and improve the state of the FCC significantly.
    [Representative Matsui's discussion draft follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Mr. Walden. Together with the draft bills we discussed at 
our last legislative hearing and the consolidated reporting 
bill that was passed unanimously by the House in February, 
these are real steps toward a higher standard for transparency 
of decisionmaking at the FCC. And it is high time. The industry 
deserves an efficient and effective regulator we can truly call 
expert just as the public deserves a transparent and 
accountable Federal Government.
    I would like to thank our guests for being with us today. 
Mr. May and Professor Benjamin are both recognized experts in 
administrative law. And former Commissioner McDowell has the 
invaluable experience of having been part of the Commission. So 
your combined experience and expertise for the FCC make you 
invaluable advisers to us on how our proposals may impact the 
agency and industries governed by the FCC. So we thank you in 
advance for your insights, and we appreciate the testimony that 
you have provided.
    And now I would like to ask unanimous consent to enter into 
the record the letter that the Chairman of the FCC, Tom Wheeler 
sent to both Congresswoman Eshoo and myself, memorializing his 
statements made before the subcommittee last month, and how he 
intends to address process reform with the task force. Without 
objection.
    [The information appears at the conclusion of the hearing.]
    Mr. Walden. I applaud the chairman for his stated 
commitment to process reform. I do acknowledge it sounds a 
little familiar because we heard before our subcommittee in 
December of 2013 about this effort, and again, in 2011, prior 
Chairman Genachowski, 4 years ago this week basically said the 
same thing.
    Unfortunately, in the intervening years, while we have seen 
some reform at the FCC, I don't think it has gone far enough, 
as evidenced as by our bipartisan legislation that is moving.
    I appreciate our colleagues working with us to bring about 
lasting reforms that transcend any chairman of either party at 
the Commission. We must not buy into the idea that an FCC 
Chairman will diminish his or her power and work against their 
own interests there. The FCC is structured to give the Chairman 
the ability to operate in secret outside the watchful eye of 
the public it was created to serve. So I entered that into the 
record.
    With the remaining 26 seconds, recognize the vice chairman, 
Mr. Latta.
    [The prepared statement of Mr. Walden follows:]

                 Prepared statement of Hon. Greg Walden

    Good morning. Thank you for joining us here today to 
discuss a topic that I have long championed--FCC Process 
Reform. I'm pleased to announce that Ranking Member Eshoo and I 
will re-introduce the FCC Process Reform Act. This is a bill 
that passed the House in the 112th Congress and that the 113th 
Congress passed unanimously. We are dedicated to improving the 
way the government does its business and we are introducing 
this bill again with the hope and expectation that the third 
time is the charm.
    We all agree that things could be better at the FCC. The 
Commission regulates an incredibly dynamic and innovative 
sector in the American economy. It ought to serve the public in 
a transparent and predictable manner. This is the best way to 
protect consumers and to provide stability for industry and 
investors. Our bill would set procedural guardrails to protect 
against the potential for lapses in process.
    Specifically, our legislation would set goals for 
Commission process and would allow the FCC to determine for 
itself the best way to meet those goals. The objective is to 
permit the FCC significant latitude in setting its own 
deadlines and developing performance measures for program 
activities. The public will be able to measure the Commission's 
progress by means of annual reports detailing its performance 
in meeting the deadlines. And, provided that the Commission 
completes the required rulemaking and inquiry process, the bill 
will also provide for non-public, collaborative discussions 
among the Commissioners, which currently are prohibited by the 
Sunshine in Government Act.
    I am also pleased to bring several bills offered by my 
colleagues across the aisle before the subcommittee for 
discussion; I applaud their willingness to work with the 
majority on improving FCC process and I believe there is 
significant merit to the draft bills offered. We are looking 
forward to working together on these bills.
    Representative Clarke's draft bill requires the FCC to 
publish a quarterly dashboard marking progress on petitions and 
complaints at the FCC, allowing the public to determine for 
themselves how efficiently the FCC is operating. Representative 
Loebsack's bill would require the Chairman to publish the 
internal procedures at the FCC, which would, for the first 
time, allow the public to understand how decisions are made 
when the Commission goes behind closed doors to amend proposed 
rules. And, Representative Matsui's bill would encourage the 
FCC to improve access to government for small businesses. These 
are all fine ideas that can gain bipartisan support and improve 
the state of the FCC significantly.
    Together with the draft bills we discussed at our last 
legislative hearing, and the consolidated reporting bill that 
was passed unanimously by the House in February, these are real 
steps toward a higher standard for transparency of decision-
making at the FCC. It is high time. The industry deserves an 
efficient and effective regulator we can truly call ``expert,'' 
just as the public deserves a transparent and accountable 
federal government.
    I'd like to thank our guests for being with us today. Mr. 
May and Prof. Benjamin are both recognized experts in 
administrative law, and former Commissioner McDowell has the 
invaluable experience of having been a part of the Commission. 
Your combined experience and expertise with the FCC make you 
invaluable advisors on how our proposals may impact the agency 
and the industries governed by the FCC. We thank you in advance 
for your insights and look forward to what you have to say.

    Mr. Latta. Well, thank you very much, Mr. Chairman.
    And thanks very much to our witnesses for being with us 
today, really appreciate it, and look forward to your 
testimony.
    The telecommunications industry drives a significant 
portion of economic growth in our country. Therefore, Congress 
needs to make sure that this sector is not burdened or hampered 
by inefficiency or lack of accountability at the FCC. I 
appreciate the chairman and the subcommittee for keeping FCC 
transparency, efficiency, and accountability a top priority for 
continuing an open discussion on agency reform.
    I believe the draft bills before us today aim to improve 
FCC process, and I thank our Democratic colleagues for bringing 
them forward.
    With bipartisan cooperation, this subcommittee can offer 
reform that will greatly improve agency procedures, which begin 
with Chairman Walden's and Ms. Eshoo's FCC process reform 
discussion draft.
    I look forward to today's witnesses' testimony and their 
perspectives on the issues.
    And, Mr. Chairman, I yield back.
    Mr. Walden. Gentleman yields back the balance of his time.
    The chair recognizes the gentlelady from California, Ms. 
Eshoo.
    Ms. Eshoo. Good morning, Mr. Chairman, and thank you for 
convening today's hearing to consider three of the bills put 
forward by Democrats at our April 30 subcommittee meeting.
    And to the witnesses, welcome back to the witness table. It 
is wonderful to see you. And we look forward to hearing you 
share your expertise with us, and we thank you for it.
    Improving FCC transparency is supported by Members on both 
sides of the aisle, as well as Chairman Wheeler. In a letter to 
the subcommittee yesterday, as the chairman just said, the FCC 
Chairman articulated the agency's planned review of 
transparency, rulemaking, and delegated authority all of which 
can be done with passing new legislation.
    At the same time, your consideration of bills offered by 
Democrats demonstrates that we can work together to modernize 
the FCC without jeopardizing regulatory certainty, which is 
really very, very important, for all that deal with the FCC are 
opening the door to legal challenges on every Commission 
action. That is not what we are here for, and I believe that we 
are staying away from that.
    Today, we are also considering the FCC Process Reform Act, 
a discussion draft I offered with Chairman Walden and 
Representative Kinzinger, and which passed the House by voice 
vote in the last Congress. Importantly, this compromise bill 
gives the FCC flexibility to evaluate and adopt procedural 
changes to its rules rather than putting rigid requirements in 
statute.
    I also welcome the inclusion of the FCC Collaboration Act. 
Obviously, I do. It is a bipartisan bill I introduced earlier 
this year with Representatives Shimkus and Doyle. But an 
artificial delay of this particular provision as the discussion 
draft establishes, I think, is an unnecessary delay, and I 
think it is an odd one. If we are taking it up, let's get it 
done, because it is a much needed reform. All the commissioners 
of the FCC have testified on this, and I think that we need to 
address this prior to passage of any package.
    Finally, it is disappointing to me that the majority has 
chosen not to consider H.R. 2125, the Keeping Our Campaigns 
Honest Act. This was part of the package of bills offered by 
Democrats at the subcommittee's April 30 hearing. Recent 
election cycles and waves of spending by secret donors have 
made it painfully clear that our electoral system and our 
campaign finance laws are in the drastic need of reform.
    In the long term, it will take Supreme Court decisions or a 
constitutional amendment to rid our political system of endless 
sums of money. But, in the short term, we can and should start 
by requiring that all political ads spending be fully transport 
and clearly disclosed. Now, I think the operative word in this 
is ``transparency.'' At our last hearing, many members spoke so 
eloquently about transparency.
    Mr. Chairman, you have emphasized transparency, and yet, 
when it comes to this, no transparency.
    So full disclosure is an idea that once enjoyed bipartisan 
support. Justice Anthony Kennedy in the Citizens United case 
wrote for the majority, quote, ``The First Amendment protects 
political speech, and disclosure permits citizens and 
shareholders to react to the speech of cooperate entities in a 
proper way. This transparency enables the electorate to make 
informed decisions and give proper weight to different speakers 
and messages,'' unquote.
    Even Senator Mitch McConnell agreed, asking in 2000, why 
would a little disclosure be better than a lot of disclosure? 
Consistent with the FCC's existing authority, I think it's time 
for the agency to bring greater transparency to America's 
electoral system by requiring sponsors of political ads very 
simply to disclose their true identity, not just their 
ambiguously named Super PAC.
    The public has a right to know who is attempting to 
persuade them over the public airwaves--public airwaves--and 
Representative Yarmuth's bill would achieve that goal by 
casting light and transparency on election advertising.
    So there you have it, the good and the not-so-good. I 
welcome, again, our witnesses back to the subcommittee. And 
your expertise on how to ensure FCC flexibility while promoting 
openness, transparency, and accountability is very important 
for us. Thank you.
    And I yield back, Mr. Chairman.
    Mr. Walden. Gentlelady yields back the balance of her time.
    I don't believe anyone is claiming the time for the 
chairman of the committee, so I will recognize the ranking 
member on the committee, Mr. Pallone.
    Mr. Pallone. Thank you, Chairman Walden and Ranking Member 
Eshoo.
    And welcome to our witnesses. I know all of you have been 
here before to help us with these issues, and I appreciate your 
coming back.
    This is the second time in the past few years that this 
subcommittee has focused on perceived shortcomings at the FCC. 
At our hearing a couple weeks ago, we heard testimony from FCC 
Chairman Wheeler about the extensive work he has already done 
to update the FCC's internal processes, but more could always 
be done. And that is why Chairman Wheeler committed to us that 
he would continue to work with his fellow Commissioners to 
comprehensively review all of the internal procedures at the 
agency.
    We also heard at the last hearing that the Democratic 
members of this subcommittee have a number of concerns with the 
FCC process reform proposals the Republicans put forward. The 
most serious concern was that these proposals run counter to 
the repeated warnings from legal experts that creating agency-
specific reforms invite lawsuits which create uncertainty and 
deter investment.
    But rather than simply throw our hands up in opposition, we 
offered an alternative approach to keep the FCC fast, 
efficient, and transparent. And our commonsense proposals would 
keep the FCC as agile as the industries it regulates, without 
sparking years of legal uncertainty.
    I hope the Republicans understand our concern, and I am 
grateful that Chairman Walden is willing to give some of our 
proposals a fair hearing. But I do want to join with Ms. Eshoo 
and express disappointment that this hearing does not include 
all of our proposals, including the one presented by Mr. 
Yarmuth, and that is because transparency should extend to the 
political process as well as the FCC's internal process.
    That is why our alternative package includes a way to 
ensure that the public knows who is paying for expensive 
political ads on TV. Americans deserve to know who is using the 
public airwaves to influence political debates, and 
transparency should not stop at the doors of the FCC.
    But I want to thank both of my colleagues again.
    I would like now to yield the remainder of my time to the 
gentlewoman from California, Ms. Matsui.
    Ms. Matsui. I thank the ranking member for yielding me 
time. I would like to thank the witnesses for being with us 
today.
    We all agree here that transparency and efficiency at the 
FCC is a good thing, and I am pleased that my draft bill is 
being considered today to make it easier for small businesses 
in Sacramento and across the country to engage with the FCC on 
policies that may impact them. Whether it is a family business 
or a startup, small businesses can't spend scarce resources on 
lawyers or lobbyists to have an impact on FCC decision. But, in 
most cases, their companies will be affected by FCC decisions 
just as much as larger corporations. We should make it as 
simple as possible for the small businesses to have their 
voices heard at the FCC. My draft bill would have the FCC 
coordinate with the Small Business Administration to improve 
small business participation at the FCC.
    Mr. Chairman, I would like to submit for the record a 
letter of support from the Small Business Coalition comprised 
of rural and travel carriers for this legislation.
    Mr. Walden. Without objection.
    [The information appears at the conclusion of the hearing.]
    Ms. Matsui. This is a commonsense bill that I hope my 
colleagues will support.
    And I yield back the balance of my time.
    Mr. Walden. Gentlelady yields back the balance of her time.
    Mr. Pallone, goes back to you, I think.
    Mr. Pallone. I yield back.
    Mr. Walden. He yields back.
    And so, with that, we will move onto our witnesses. And I 
appreciate my colleagues' testimony or opening statements. 
Three out of four minority party bills up for consideration is 
not a bad ratio when you are in the minority.
    Let me move on now to Mr. Randy. Just making a note here. I 
wish we had gotten three-quarters of our bills when we were in 
minority, but oh well.
    Randy May, President, Free State Foundation. Take it away. 
Good morning.
    Mr. May. Mr. Chairman----
    Mr. Walden. But we do need you to turn that mic on. Just 
once.
    Mr. May. Mr. Chairman. Well, that doesn't work either.
    Mr. Walden. Can we get somebody over there who actually 
knows how to--no, I don't think it is on.
    With that, Mr. May, please, go ahead and start your 
testimony.

     STATEMENTS OF RANDOLPH J. MAY, PRESIDENT, FREE STATE 
 FOUNDATION; STUART M. BENJAMIN, DOUGLAS B. MAGGS CHAIR IN LAW 
   AND ASSOCIATE DEAN FOR RESEARCH, DUKE LAW; AND ROBERT M. 
   MCDOWELL, FORMER FCC COMMISSIONER, SENIOR FELLOW, HUDSON 
                           INSTITUTE

                  STATEMENT OF RANDOLPH J. MAY

    Mr. May. Mr. Chairman, Ranking Member Eshoo, and members of 
the committee, thank you for inviting me to testify. I am 
President of the Free State Foundation, a nonpartisan think 
tank, that, among other things, focuses its research in the 
communications law and policy and administrative law areas. As 
my written testimony details, I have longstanding experience in 
these areas. So today's hearing on process reform is at the 
core of my expertise.
    Mr. Chairman, as we were discussing earlier, all three of 
the witnesses today happen to have strong Duke connections, 
Duke University, but I want to point out that I am the only one 
of my Duke friends here that has two Duke degrees, so I hope 
you will consider that when you are weighing my testimony.
    I commend Chairman Walden and the committee for your 
efforts to focus on process reform over the years, in addition 
to the important work undertaken as part of the Comms Act 
update process to reform the substance of our communication 
laws. I have supported the Commission's earlier process reform 
efforts, and I support the current efforts aimed at increasing 
FCC transparency.
    Alexander Bickel, one of the 20th century's most prominent 
legal scholars, wrote in his 1975 book, ``The Morality of 
Consent,'' that ``The highest form of morality is almost always 
the morality of process.''
    Sound process is crucial to ensuring accountability, 
conforming to rule-of-law norms, maintaining public confidence 
in the decisionmaking of our administrative agencies, and 
increasing administrative efficiency.
    This is especially so because the FCC's decisions, which 
impact the public in significant ways, are made by unelected 
decisionmakers who are not directly accountable to the public. 
While I applaud the sentiments that Chairman Wheeler has 
expressed regarding process reform, the reality is that the 
Commission's own efforts have fallen short of what needs to be 
done.
    If enacted, the draft bills that are the subject of this 
hearing would constitute important steps forward in reforming 
the Commission's processes, and I find little in them to 
disagree with. The FCC Process Reform Act of 2015, which 
requires the Commission to initiate proceedings either to adopt 
procedural changes or to seek public comment on whether and how 
to implement other changes, is commendably comprehensive.
    That said, I believe Congress should adopt some key 
specific reforms now without waiting any longer for the 
Commission to act on its own. So I want to use my remaining 
time to support the proposals in the drafts produced by 
Representatives Latta, Kinzinger, and Ellmers. By increasing 
transparency, these bills promote rule-of-law norms, enhance 
public confidence in the integrity of the agency's 
decisionmaking, and increase the Commission's efficiency.
    In some quarters, Representative Kinzinger's proposal 
requiring advance publication of items to be considered by the 
Commission at a Sunshine meeting provokes controversy, but it 
should not. Indeed, it should seem odd that in advance of a so-
called Sunshine meeting, the text of the document the 
Commission is voting on is kept out of the public's hands, in 
the dark.
    When Commissioners read their prepared statements, the 
public can only guess at the substance of what is being 
addressed. There is no reason why, subject to the usual 
exemptions regarding privilege, that the text of the document 
to be voted on should not be released in advance of the 
meeting. Inevitably, there are often leaks concerning the 
proposed text of items, some accurate and some not.
    Some members of the public, by virtue of position, 
proximity, or personal relationships, may receive more or 
better information concerning the proposed text than others. 
This does not inspire public confidence in the integrity of the 
Commission's decisionmaking, and it doesn't enhance the 
soundness of the Commission's decisions.
    As Commissioner O'Reilly has pointed out, in discussions 
with members of the public prior to the Sunshine cutoff quiet 
period, the inability to talk in specifics about the proposed 
item inhibits the usefulness of exchanges with the public that 
might produce better, more informed decisions. Aside from 
whatever specific time period is selected, Representative 
Ellmers' bill, that the text of rules adopted by the Commission 
be published online in a timely fashion, constitutes a useful 
reform.
    In light of legitimate concerns regarding the abuse of the 
FCC's ubiquitous grant of editorial privileges to the staff at 
the time of adoption of agenda items, there should be some 
action forcing publication requirement to help ensure that the 
rules before the Commission at the time of the vote in all 
material respects are rules that will become the official 
agency action. If this is not the case, then the very purpose 
of the Sunshine Act is vitiated, for the public is not actually 
witnessing a vote on the actual item that is going to be 
adopted by the Commission.
    Finally, in closing, Representative Latta's bill to require 
that items to be decided pursuant to delegated authority be 
identified on the agency's Web site at least 48 hours in 
advance ought to be noncontroversial. While it is appropriate 
for many items that do not present novel or significant 
questions to be decided by the staff, the Commissioners 
nominated by the President and confirmed by the Senate have the 
ultimate decisionmaking authority on matters within the 
Commission's jurisdiction. So a Commissioner should have the 
opportunity to vote if they wish on all matters on which 
official agency action is taken, and Representative Latta's 
bill is a means to effectuate that opportunity.
    Thank you for giving me the opportunity to testify today, 
and I will be pleased to answer any questions.
    [The prepared statement of Mr. May follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Mr. Walden. Thank you, Mr. May. We appreciate that.
    If you will slide that microphone over, we will go to 
Stuart Benjamin, the Douglas B. Maggs Chair in Law and 
Associate Dean for research at Duke Law.
    Mr. Benjamin. They all work now, I think.
    Mr. Walden. Yes, you are on.
    Mr. Benjamin. Great.
    Mr. Walden. Good morning.

                STATEMENT OF STUART M. BENJAMIN

    Mr. Benjamin. Chairman Walden, Ranking Member Eshoo, 
members of the subcommittee, thanks for having me. So my 
background in many ways revolves around the FCC.
    I teach administrative law, telecommunications law, First 
Amendment law. I am coauthor of a telecommunications casebook. 
From 2009 to 2011, I served as the inaugural distinguished 
scholar in residence at the FCC, a title you can blame on 
Commissioner McDowell here who suggested it and who actually 
had first suggested to me in 2006: You should go work at the 
FCC maybe.
    But any event, more recently, I have been periodically 
serving the Commission as a consultant, but I want to 
emphasize, I have not spoken to anybody in the Commission about 
any testimony in any of these bills. I have no clients. I have 
had no clients since I became an academic. Nobody has paid me 
for this testimony. I don't do any private consulting, et 
cetera.
    OK. So all the bills that are the focus today and the three 
bills that the subcommittee considered on April 30 avoid most 
of the most serious concerns that I raised in 2013. So I think 
I commend you all for--it seems to me that they have moved in a 
very useful direction. I think it makes a lot of sense, for 
instance, to tell the FCC: Here is what we want you to do. We 
are making the big policy decisions. You implement them.
    I also think it makes a lot of sense to focus on disclosure 
rules. Some disclosures can do more harm than good and actually 
inhibit effective decisionmaking processes, but many forms of 
disclosure have little or no such inhibiting effects on 
decisionmaking processes and may well make both members of the 
public and Members of the Congress understand better what is 
going on at the Commission.
    I do have some reservations. They are pretty modest in the 
grand scheme of things, but I would be remiss if I didn't lay 
them out. The first, the same I mentioned in 2013, I know this 
committee's jurisdiction, but I simply have to say it because 
it is my view of the world. I think it is a better approach if 
you have reforms you think make sense to apply them across the 
board.
    This is not just a fetish. It is that this allows for 
judicial resolution more quickly than of the issues that any 
particular piece of legislation creates. And so the greater the 
specificity, the longer it takes the courts to work out exactly 
how that is going to apply.
    Second, as I said, I think this largely avoids the concerns 
I raised in 2013 about litigation risk. There are some 
provisions here that create some uncertainty and some 
litigation risk. They are not huge. I mentioned one in my 
written statement that there is a reference to how the FCC is 
going to handle extensive new comments. So the FCC is going to 
have to define now what are extensive new comments, and then 
there is going to be litigation about what constitutes 
extensive new comments.
    Third, I think that one section of the bill is in some 
tension with Representative Kinzinger's draft bill, that is the 
section 13(a)(3)(c) of this bill says: Want to make sure that 
all Commissioners get a full chance to review FCC orders, et 
cetera. Representative Kinzinger's bill says: Within 24 hours 
of an order being circulated to all the Commissioners, it has 
to be circulated to the public, and then good-faith changes can 
be made after that.
    So the trigger is, now we have to justify changes after it 
goes to the public. Why do I highlight this? Because for 
Commissioners, the best opportunity for them to respond is when 
they have actually gotten formal receipt and they can have 
contact. And, by the way, and if we could have changes in the 
Sunshine Act, they could actually even meet among themselves in 
groups greater than two and not have to switch to talking about 
the Nationals whenever a third walks up. But that is the best 
opportunity. And now we have actually raised the cost of 
changes because now you have to justify these as good-faith 
changes.
    A couple other things, let me just mention quickly. One is 
that section 13(a)(2)(c) is the one that says if there are 
submissions received after the comment window, then the public 
gets to respond to those. There is a possibility then for an 
endless loop, right. So the public responds with new 
submissions, then those need to be responded to, et cetera.
    And the way to avoid that problem, it seems to me, is for 
the FCC simply not to receive submissions after the comment 
window. But the question then is, sometimes things happen after 
the comment window; technology is changing all the time. Don't 
we want the FCC to have the latest information, the most pieces 
of information when it is making its decisions.
    Finally, let me just mention that the requirement in 
13(a)(2)(g) requiring that notices of proposed rulemaking 
contain the specific language of the proposed rule, let me 
simply note this will cement the transition of the formal 
rulemaking process from a rulemaking to a rule-adopting 
process. That is to say, what that really means is, all the 
relevant decisions will have been made before the comment 
process, before the NPRM.
    And that might be a better world in some ways; we might 
think public comments can only move the Commission at the 
margin or move any agency at the margin, but it does mean that 
the agency has to have fully baked its whole rule before it 
actually begins the public comment process.
    Anyway, let me desist with that. And thank you very much 
for your time.
    [The prepared statement of Mr. Benjamin follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Mr. Walden. Thank you very much, Mr. Benjamin. We 
appreciate your coming up for our hearing today.
    Now, we will turn to our final witness, the Honorable 
Robert McDowell, former SEC Commissioner and a senior fellow at 
the Hudson Institute.
    We welcome you back before the committee.

                STATEMENT OF ROBERT M. MCDOWELL

    Mr. McDowell. Mr. Chairman, thank you for having me back. 
it is an honor and privilege to be here.
    And Ranking Member Eshoo and all the members, thank you. It 
is good to be back here.
    First, all the disclaimers: Today, I am testifying only in 
my personal capacity and not on behalf of the Hudson Institute 
or the law firm of Wiley Rein or any of its clients, and the 
thoughts I express today are purely my own. And I have stapled 
to the back of my testimony a lot of other FCC reform ideas I 
wrote about as a Commissioner and have testified about with you 
in this room and downstairs and elsewhere.
    So, when I was an FCC Commissioner, we had many positive 
and constructive conversations with this committee and with 
each other about FCC reform. And one of the refreshing aspects 
that has already been touched upon today of this topic is the 
tremendous potential this topic offers for bipartisan 
cooperation to find solutions in the spirit of pursuing good 
government.
    It can be done because it has been done. For example, 
former Acting Chairman of the FCC Mike Copps and I collaborated 
on many reform efforts back in 2009, including the 
modernization of the FCC's ex parte rules and proposed changes 
to the Sunshine in Government Act. And, similarly, Chairman 
Genachowski and I worked together in many other matters as 
well.
    And I do note that with great enthusiasm, we have several 
bills and discussion drafts written on both sides of the aisle 
that are being considered by this committee, and good ideas 
abound. Without offering a specific endorsement, I will endorse 
the spirit and theme in some of the ideas here today. So I 
applaud the committee for its energy and good faith that you 
are putting behind this effort.
    The bottom line on reform efforts however is that they 
should be based on the principles of sound due process, 
transparency, accountability, fairness, and efficiency. And I 
am going to edit out because I know we are behind schedule some 
of what I was going to say, but I would like to add, there are 
a few ideas that I have talked about over the years that the 
Commission should be required to justify new rules with bona 
fide cost-benefit analyses. New rules perhaps should sunset 
after a defined period of time and that renewal should be 
justified from scratch in a new proceeding.
    And it is precisely because the communications marketplace 
is evolving so rapidly. Technology is coming out of 
Congresswoman Eshoo's office, and other districts here are 
really just abounding and changing by the second.
    But also I think we need to look at merger reviews. When 
the Commission intends to deny a merger, the parties should be 
able to go to court for review after waving the costly and 
time-consuming hearing process. And also mergers, I think, 
should have a bona fide shot clock, obviously with some 
exceptions for extraordinary circumstances.
    And I do agree that the Sunshine in Government Act should 
be modernized so that more than two Commissioners can talk 
about substance. That would actually help a lot of what we are 
talking about here. At the end of the day, Commission orders 
have to be well reasoned and are disclosed and are appealable, 
of course, to the courts. So it is not a secret as to how the 
Commission is arriving at a decision, but that should be fixed 
as well.
    And, lastly, I would be remiss if I didn't reiterate my 
call for Congress to rewrite our country's creaky and 
antiquated communications laws. The 1934 act will celebrate its 
81st birthday next month, and the 1996 act is almost 20-years-
old, which reminds me of my 20th wedding anniversary. We were 
married in 1996, so it is always good to keep those in mind.
    But a lot has changed in just the last few weeks, let alone 
the last 81 years. We need to modernize our communications laws 
to reflect current market conditions and technologies. So thank 
you again for having me here today. It is a tremendous honor to 
be here, and I look forward to answering your questions.
    [The prepared statement of Mr. McDowell follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    [The appendices to Mr. McDowell's testimony have been 
retained in committee files and can be found at: http://
docs.house.gov/meetings/IF/IF16/20150515/103464/HHRG-114-IF16-
Wstate-McDowellR-20150515.pdf.]
    Mr. Walden. Well, thank you, Mr. McDowell.
    We appreciate the testimony of all of our witnesses. We 
will go into the question phase at this point, knowing we are 
going to get votes here in a minute. And I actually look at 
what we are doing here today as kind of phase one of the Comms 
Act update is Title 1, which is how the FCC itself operates. 
There are many other issues to come in our efforts, but 
certainly the operations of the Commission itself need to be 
reviewed from time to time, that is our responsibility.
    I know there has been a lot said about how we are just 
focused on one Commission, and I think Mr. Benjamin you touched 
on this, as others have over time, that somehow changing the 
rules here isn't how we should do this. We should do it across 
all agencies.
    But, Mr. McDowell, isn't it true that the FCC actually 
doesn't operate fully under the APA today? It has its own--like 
for example, I pointed out in the last hearing, the IG is 
appointed by the Chairman and reports to the Chairman. That is 
not the way it is in other agencies necessarily. It has its own 
unique carve out, doesn't it?
    Mr. McDowell. Well, it can, yes, absolutely. And the 
example you point out is a good example of that, so----
    Mr. Walden. And your cost-benefit analysis required in 
other agencies is not here, correct?
    Mr. McDowell. Correct.
    Mr. Walden. And do you think that should change?
    Mr. McDowell. Absolutely. I mean, I have called for that 
for years when I was a Commissioner. I think it would benefit 
everybody. What are the costs? There are costs to new rules, 
and there is sometimes and almost always unintended 
consequences. Sometimes there are intended consequences. But we 
should take a look at those in a fully vetted way. And those 
can actually harm the most entrepreneurs and small businesses.
    Mr. Walden. And what do you make of Mr. May's suggestion 
that rules every 2 years should be reconsidered?
    Mr. McDowell. Randy and I have agreed on a lot of things 
over the years, and whether two is a magic number or some other 
period of time, the spirit of that is that they should be 
renewed and reviewed often, and they should be sunsetted.
    Mr. Walden. Do you think that would create too much 
uncertainty in the marketplace if the rules get changed every 2 
years or reviewed every 2 years or 3 or 4?
    Mr. McDowell. Well, however many years it would be, you 
could make that argument certainly, but a bad rule in place 
isn't good for the marketplace either.
    Mr. Walden. Mr. May, do you want to comment further on your 
suggestion.
    Mr. May. Thank you, Mr. Chairman.
    And, you know, it took me a long time to be old enough not 
to question a Duke law professor, but now I think I have the 
years.
    On the point you raised about the APA changing that Mr. 
Benjamin has raised and raised before versus making changes to 
the Communications Act, I just want to say this because this is 
an important point that has reoccurred: The APA sets minimum 
requirements for Federal agencies subject to it, which are most 
Federal agencies, including the FCC. But, in many agencies, 
there are different procedural requirements that Congress has 
adopted. The FTC, EPA, OSHA, they all have different procedural 
requirements because they do different things, and they have 
different subjects and issues.
    And, in this particular case, aside from the differences in 
the FCC's jurisdiction, this committee has identified process 
failures over the last 2 years, 1 to 2 years that, in my view, 
are pretty substantial, which warrant addressing those.
    And then I think the final thing I would say on this point 
is that I think there is a value sometimes in experimenting 
with different processes. I don't think all the agencies have 
to be the same. We may learn some things if these procedures 
are adopted that would be useful to apply to other agencies, or 
we may learn that they need to be adjusted, or we may learn 
possibly that they don't work and Congress is going to be back 
next year and the year after, and they can be either tweaked or 
eliminated.
    But I don't--the final thing I would say is, I don't think 
it is a reason not to make changes because there may possibly 
be litigation about some of the terms in the laws. I mean, if 
you take that view, then you guys wouldn't do anything up here 
if you are concerned that the law you adopted----
    Ms. Eshoo. And gals.
    Mr. May. And gals, yes. I meant that generically, Ms. 
Eshoo.
    Mr. Walden. Let me go to this point, and that is, Mr. May, 
you referred to the FCC's practice of granting the staff 
editorial privileges in your prepared testimony. How does that 
longstanding practice affect Commission transparency and 
decisionmaking?
    Mr. May. Well, to me, this is a pretty fundamental point. I 
have watched the grant of editorial privileges for basically 
three decades. My perception is it is difficult to prove 
empirically, but I think over time, it is more often than not--
not more often than not, but it is more common now that these 
editorial privileges may involve things we would consider 
substantive.
    But the basic problem is----
    Mr. Walden. Yes. I have got 18 seconds left. Mr. McDowell, 
from your experience there, talk just quickly, editorial 
privilege. What does that really mean in reality?
    Mr. McDowell. Well, in the ideal, it means typos and 
cosmetic, not substantive changes, not like throwing in the 
word ``not.''
    Mr. Walden. Or ``shall.''
    Mr. McDowell. Or ``shall,'' yes, exactly.
    Mr. Walden. And that does happen?
    Mr. McDowell. Yes, it has. Yes, absolutely, it has.
    Mr. Walden. All right. My time is expired.
    Turn to the gentlelady from California, Ms. Eshoo, for 5 
minutes.
    Ms. Eshoo. Thank you, again, to the witnesses.
    The current FCC process reform bill language provides for a 
delay--and I mentioned that in my opening statement in--the 
implementation of the FCC Collaboration Act. Now, given the 
widespread support, and it has been already touched on in your 
testimony, the support for the reform, do you think that such a 
delay is necessary? We say it is great. It is important. We 
should move ahead with it. We embrace it. We support it. We 
endorse it, but we are going to delay it. So tell me what you 
think.
    Mr. May. Thank you, Ms. Eshoo. And I apologize for the 
reference to ``guys.''
    Ms. Eshoo. That is all right.
    Mr. May. I meant it generically. But, look, I would say 
this, I am a long-time supporter of the Sunshine Act exchange.
    Ms. Eshoo. I know you are.
    Mr. May. I support these changes. I, myself, might go 
further.
    Ms. Eshoo. But do you think it should be delayed?
    Mr. May. I think this should be done together for this 
simple reason, that when you look at all these changes, they 
all relate to how the Sunshine Act works in terms of advance 
publication of notices, what you do afterwards. So I would do 
them all together. That would be my preference.
    Ms. Eshoo. Thank you.
    Mr. Benjamin. I personally don't see any reason for delay 
only because this is the only issue on which I believe every 
single administrative lawyer in the country--well, 99.8 percent 
would agree.
    Ms. Eshoo. That is pretty good, yes.
    Mr. Benjamin. It is hard to think of anything that has more 
unanimity than that. The Government Sunshine Act has had 
unintended consequences, producing, as far as I can tell, the 
only benefit of which is more discussions of the Nationals.
    Ms. Eshoo. Exactly.
    Commissioner McDowell.
    Mr. McDowell. That can be a good thing. They were the best 
team in the National League last year.
    Mr. Benjamin. But they didn't go anywhere.
    Mr. McDowell. Playoffs will fix that.
    So, in an ideal world, we would want these things to be 
done as quickly as possible. Obviously, there are other 
circumstances in reality that prevent that sometimes.
    Ms. Eshoo. But do you think it shouldn't be delayed?
    Mr. McDowell. In the ideal, no.
    Ms. Eshoo. Exactly, yes.
    Mr. Benjamin, are there any statutory changes that you 
think are necessary to improve efficiency at the Commission?
    Mr. Benjamin. ``Necessary'' is a tough word. I don't think 
much is necessary, so, as a high enough hurdle, that nothing 
jumps out at me that I would think, boy, you absolutely have to 
do this.
    Ms. Eshoo. Yes. Under Representative Latta's bill, it is my 
understanding that a list of all the delegated items, including 
routine application, processing, noncontroversial public 
notices, would have to be publicly produced 48 hours before the 
bureau is allowed to act.
    Now, we heard 2 weeks ago that the Commission literally 
makes hundreds of thousands of delegated authority decisions on 
a yearly basis. We had a lot of conversation about this at the 
last hearing. How do you think this new requirement would 
impact the Commission's work?
    And I think, Commissioner McDowell, you probably want to 
lean in on this. And what do you think the cost impacts would 
be?
    Mr. McDowell. Actually, I think the cost impacts, to start 
with that, would be minimal. The staff is already working on 
those matters, right, so by merely kind of listing them on the 
Web site. As the FCC's IT system improves hopefully, it should 
be an incremental cost, if any additional cost. And, actually, 
it improves transparency. I don't think it would be a burden on 
the staff at all. They are already working on it.
    Ms. Eshoo. Thank you very much.
    In the interest of time, Mr. Chairman, I am going to yield 
back, but just one comment. I think given what our three 
witnesses, how they responded to my question about the 
Collaboration Act and delay, that we shouldn't delay.
    So I yield back. Thank you.
    Mr. Walden. Appreciate that.
    And I think the FCC already produces its Daily Digest of 
all those, doesn't it?
    Mr. McDowell. The Daily Digest is about actions that have 
happened, and it is not about everything that goes on at the 
Commission necessarily.
    Mr. Walden. All right. Mr. Latta, we will turn to you for 5 
minutes.
    Mr. Latta. Well, thank you, Mr. Chairman.
    And again, to our witnesses, thanks very much for appearing 
today.
    Mr. McDowell, if I may, over the past several Congresses, I 
have introduced legislation that would require the FCC to 
conduct cost-benefit analysis at the time of a notice for 
proposed rulemaking and again at the time the final rule is 
issued. I believe that a cost-benefit analysis will provide the 
public with a transparent monetary impact of the FCC rules. 
Additionally, under the APA, other agencies already determine a 
cost-benefit analysis of rules.
    Do you think that the FCC should be held to the same 
standard? And do you also believe it would be an advantage for 
the Commissioners to have a better understanding of what cost 
and benefits are of an action before they vote?
    Mr. McDowell. Absolutely. And something I called for for 
years as a Commissioner as well. I think it is just a matter of 
good government to know what are the costs of the proposed 
rules. There are similar statutes already in place, Paperwork 
Reduction Act, the Regulatory Flexibility Act, but they are not 
quite the same as what you are proposing. And I think what you 
are proposing actually makes it clearer and would make the 
agency more accountable for its actions if it knows that the 
rules it is about to impose or going to impose cost.
    So I think that could only be a benefit. Sometimes rules 
need to be put in place, but let's understand exactly what the 
effects and the side effects might be.
    Mr. Benjamin. Can I jump in on that?
    Mr. Latta. Mr. Benjamin, go right ahead.
    Mr. Benjamin. So there is a bill that Senator Portman 
introduced in the previous Congress, the Independent Agency 
Regulatory Analysis Act, that would have all independent 
agencies' regulations be run through OIRA or just like 
executive agencies. So it would be the same process. For what 
it is worth, I will just say, strikes me as a great idea to 
have everything subject to cost-benefit analysis.
    Mr. Latta. Well, thank you very much.
    Mr. Chairman, in the interest of time, since I think we are 
voting, I will yield back.
    Mr. Walden. Gentleman yields back.
    Recognize gentleman from Vermont.
    Mr. Welch. Well, we have votes, but two things: One, I want 
to thank the chair and the ranking member for having this 
hearing. Number two, I really think this is an area where we 
should try to make what changes will help the organization 
function better. And we have got tremendous witnesses here who 
have given us some concrete suggestions. And I am all in on 
trying to implement some of these changes to make it work 
better.
    We should be spending our times having the debate about 
policy and being, in my view, as accommodating to folks who 
have responsibility to run these institutions so that they have 
the equipment they need, they have procedures in place, and 
that they can do the tough job we give them as efficiently as 
possible.
    So thanks for you and Ms. Eshoo for having this hearing.
    And thank you for the witnesses coming here and really 
appreciate the benefit of your experience and advice.
    Mr. Walden. I think that we are in the middle of votes, and 
we are going to be probably an hour plus. So I think we 
probably move to adjourn. I don't know if any members--this is 
the last votes of the day, so I would be surprised if we had 
too many come back.
    I think that is what we will do is that, rather than hold 
you all here with the hopes someone comes back on a go-away day 
and the last votes, I think what we will do is ask you to 
respond to written questions as submitted by our colleagues and 
ourselves.
    We very much value your testimony, your counsel. You bring 
years of really important experience to the table. We have 
listened to your past suggestions and tried to incorporate 
those, and we will listen to these as well and plan to move 
forward.
    So thank you very much.
    And, with that, the subcommittee stands adjourned.
    [Whereupon, at 10:06 a.m., the subcommittee was adjourned.]
    [Material submitted for inclusion in the record follows:]

                 Prepared statement of Hon. Fred Upton

    The quality of our rules and laws are judged as much by the 
process under which they are produced as by the substance of 
their words. Our best work comes through an open, transparent, 
and accessible process--whether in the halls of Congress or the 
caverns of the federal bureaucracy. Too often of late, however, 
the work of the FCC has been marred by opacity and 
gamesmanship. Information on the commission's process has been 
relegated to after-the-fact press statements--leaving us all 
guessing how the FCC makes decisions. As a result, trust in 
those decisions has suffered.
    Oversight of the commission and dedication to ensuring the 
highest standards of conduct from commissioners has long been a 
hallmark of the Energy and Commerce Committee. That work 
continues with a bill to reform FCC processes generally, 
sponsored by Subcommittee Chairman Greg Walden and Ranking 
Member Anna Eshoo, as well as three draft bills offered by 
Democratic members of this subcommittee. This subcommittee has 
always fostered bipartisanship, and it is extremely encouraging 
that we are able to strengthen this tradition today.
    I applaud my Democratic colleagues for joining us in 
calling for improved transparency and better process at the 
FCC. I firmly believe that we can and will make the commission 
a more efficient and accountable agency.
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