[House Report 112-414]
[From the U.S. Government Publishing Office]


112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     112-414

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



 
      FEDERAL COMMUNICATIONS COMMISSION PROCESS REFORM ACT OF 2012

                                _______
                                

 March 19, 2012.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

  Mr. Upton, from the Committee on Energy and Commerce, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 3309]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Energy and Commerce, to whom was referred 
the bill (H.R. 3309) to amend the Communications Act of 1934 to 
provide for greater transparency and efficiency in the 
procedures followed by the Federal Communications Commission, 
having considered the same, report favorably thereon with an 
amendment and recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     7
Background and Need for Legislation..............................     7
Hearings.........................................................    10
Committee Consideration..........................................    10
Committee Votes..................................................    11
Committee Oversight Findings.....................................    15
Statement of General Performance Goals and Objectives............    15
New Budget Authority, Entitlement Authority, and Tax Expenditures    15
Earmarks.........................................................    15
Committee Cost Estimate..........................................    15
Congressional Budget Office Estimate.............................    15
Federal Mandates Statement.......................................    16
Advisory Committee Statement.....................................    16
Applicability to Legislative Branch..............................    17
Section-by-Section Analysis of Legislation.......................    17
Changes in Existing Law Made by the Bill, as Reported............    34
Dissenting Views.................................................    42
    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Federal Communications Commission 
Process Reform Act of 2012''.

SEC. 2. FCC PROCESS REFORM.

  (a) In General.--Title I of the Communications Act of 1934 (47 U.S.C. 
151 et seq.) is amended by inserting after section 12 the following new 
section:

``SEC. 13. TRANSPARENCY AND EFFICIENCY.

  ``(a) Rulemaking Requirements.--
          ``(1) Requirements for notices of proposed rulemaking.--The 
        Commission may not issue a notice of proposed rulemaking unless 
        the Commission provides for a period of not less than 30 days 
        for the submission of comments and an additional period of not 
        less than 30 days for the submission of reply comments on such 
        notice and the Commission includes in such notice the 
        following:
                  ``(A) Either--
                          ``(i) an identification of--
                                  ``(I) a notice of inquiry, a prior 
                                notice of proposed rulemaking, or a 
                                notice on a petition for rulemaking 
                                issued by the Commission during the 3-
                                year period preceding the issuance of 
                                the notice of proposed rulemaking 
                                concerned and of which such notice is a 
                                logical outgrowth; or
                                  ``(II) an order of a court reviewing 
                                action by the Commission or otherwise 
                                directing the Commission to act that 
                                was issued by the court during the 3-
                                year period preceding the issuance of 
                                the notice of proposed rulemaking 
                                concerned and in response to which such 
                                notice is being issued; or
                          ``(ii) a finding (together with a brief 
                        statement of reasons therefor)--
                                  ``(I) that the proposed rule or the 
                                proposed amendment of an existing rule 
                                will not impose additional burdens on 
                                industry or consumers; or
                                  ``(II) for good cause, that a notice 
                                of inquiry is impracticable, 
                                unnecessary, or contrary to the public 
                                interest.
                  ``(B) The specific language of the proposed rule or 
                the proposed amendment of an existing rule.
                  ``(C) In the case of a proposal to create a program 
                activity, proposed performance measures for evaluating 
                the effectiveness of the program activity.
                  ``(D) In the case of a proposal to substantially 
                change a program activity--
                          ``(i) proposed performance measures for 
                        evaluating the effectiveness of the program 
                        activity as proposed to be changed; or
                          ``(ii) a proposed finding that existing 
                        performance measures will effectively evaluate 
                        the program activity as proposed to be changed.
          ``(2) Requirements for rules.--Except as provided in the 3rd 
        sentence of section 553(b) of title 5, United States Code, the 
        Commission may not adopt or amend a rule unless--
                  ``(A) the specific language of the adopted rule or 
                the amendment of an existing rule is a logical 
                outgrowth of the specific language of a proposed rule 
                or a proposed amendment of an existing rule included in 
                a notice of proposed rulemaking, as described in 
                subparagraph (B) of paragraph (1);
                  ``(B) such notice of proposed rulemaking--
                          ``(i) was issued in compliance with such 
                        paragraph and during the 3-year period 
                        preceding the adoption of the rule or the 
                        amendment of an existing rule; and
                          ``(ii) is identified in the order making the 
                        adoption or amendment;
                  ``(C) in the case of the adoption of a rule or the 
                amendment of an existing rule that may have an 
                economically significant impact, the order contains--
                          ``(i) an identification and analysis of the 
                        specific market failure, actual consumer harm, 
                        burden of existing regulation, or failure of 
                        public institutions that warrants the adoption 
                        or amendment; and
                          ``(ii) a reasoned determination that the 
                        benefits of the adopted rule or the amendment 
                        of an existing rule justify its costs 
                        (recognizing that some benefits and costs are 
                        difficult to quantify), taking into account 
                        alternative forms of regulation and the need to 
                        tailor regulation to impose the least burden on 
                        society, consistent with obtaining regulatory 
                        objectives;
                  ``(D) in the case of the adoption of a rule or the 
                amendment of an existing rule that creates a program 
                activity, the order contains performance measures for 
                evaluating the effectiveness of the program activity; 
                and
                  ``(E) in the case of the adoption of a rule or the 
                amendment of an existing rule that substantially 
                changes a program activity, the order contains--
                          ``(i) performance measures for evaluating the 
                        effectiveness of the program activity as 
                        changed; or
                          ``(ii) a finding that existing performance 
                        measures will effectively evaluate the program 
                        activity as changed.
          ``(3) Data for performance measures.--The Commission shall 
        develop a performance measure or proposed performance measure 
        required by this subsection to rely, where possible, on data 
        already collected by the Commission.
  ``(b) Adequate Deliberation by Commissioners.--The Commission shall 
by rule establish procedures for--
          ``(1) informing all Commissioners of a reasonable number of 
        options available to the Commission for resolving a petition, 
        complaint, application, rulemaking, or other proceeding;
          ``(2) ensuring that all Commissioners have adequate time, 
        prior to being required to decide a petition, complaint, 
        application, rulemaking, or other proceeding (including at a 
        meeting held pursuant to section 5(d)), to review the proposed 
        Commission decision document, including the specific language 
        of any proposed rule or any proposed amendment of an existing 
        rule; and
          ``(3) publishing the text of agenda items to be voted on at 
        an open meeting in advance of such meeting so that the public 
        has the opportunity to read the text before a vote is taken.
  ``(c) Nonpublic Collaborative Discussions.--
          ``(1) In general.--Notwithstanding section 552b of title 5, 
        United States Code, a bipartisan majority of Commissioners may 
        hold a meeting that is closed to the public to discuss official 
        business if--
                  ``(A) a vote or any other agency action is not taken 
                at such meeting;
                  ``(B) each person present at such meeting is a 
                Commissioner, an employee of the Commission, a member 
                of a joint board established under section 410, or a 
                person on the staff of such a joint board; and
                  ``(C) an attorney from the Office of General Counsel 
                of the Commission is present at such meeting.
          ``(2) Disclosure of nonpublic collaborative discussions.--Not 
        later than 2 business days after the conclusion of a meeting 
        held under paragraph (1), the Commission shall publish a 
        disclosure of such meeting, including--
                  ``(A) a list of the persons who attended such 
                meeting; and
                  ``(B) a summary of the matters discussed at such 
                meeting, except for such matters as the Commission 
                determines may be withheld under section 552b(c) of 
                title 5, United States Code.
          ``(3) Preservation of open meetings requirements for agency 
        action.--Nothing in this subsection shall limit the 
        applicability of section 552b of title 5, United States Code, 
        with respect to a meeting of Commissioners other than that 
        described in paragraph (1).
  ``(d) Initiation of Items by Bipartisan Majority.--The Commission 
shall by rule establish procedures for allowing a bipartisan majority 
of Commissioners to--
          ``(1) direct Commission staff to draft an order, decision, 
        report, or action for review by the Commission;
          ``(2) require Commission approval of an order, decision, 
        report, or action with respect to a function of the Commission 
        delegated under section 5(c)(1); and
          ``(3) place an order, decision, report, or action on the 
        agenda of an open meeting.
  ``(e) Public Review of Certain Reports and Ex Parte Communications.--
          ``(1) In general.--Except as provided in paragraph (2), the 
        Commission may not rely, in any order, decision, report, or 
        action, on--
                  ``(A) a statistical report or report to Congress, 
                unless the Commission has published and made such 
                report available for comment for not less than a 30-day 
                period prior to the adoption of such order, decision, 
                report, or action; or
                  ``(B) an ex parte communication or any filing with 
                the Commission, unless the public has been afforded 
                adequate notice of and opportunity to respond to such 
                communication or filing, in accordance with procedures 
                to be established by the Commission by rule.
          ``(2) Exception.--Paragraph (1) does not apply when the 
        Commission for good cause finds (and incorporates the finding 
        and a brief statement of reasons therefor in the order, 
        decision, report, or action) that publication or availability 
        of a report under subparagraph (A) of such paragraph or notice 
        of and opportunity to respond to an ex parte communication 
        under subparagraph (B) of such paragraph are impracticable, 
        unnecessary, or contrary to the public interest.
  ``(f) Publication of Status of Certain Proceedings and Items.--The 
Commission shall by rule establish procedures for publishing the status 
of all open rulemaking proceedings and all proposed orders, decisions, 
reports, or actions on circulation for review by the Commissioners, 
including which Commissioners have not cast a vote on an order, 
decision, report, or action that has been on circulation for more than 
60 days.
  ``(g) Deadlines for Action.--The Commission shall by rule establish 
deadlines for any Commission order, decision, report, or action for 
each of the various categories of petitions, applications, complaints, 
and other filings seeking Commission action, including filings seeking 
action through authority delegated under section 5(c)(1).
  ``(h) Prompt Release of Certain Reports and Decision Documents.--
          ``(1) Statistical reports and reports to congress.--
                  ``(A) Release schedule.--Not later than January 15th 
                of each year, the Commission shall identify, catalog, 
                and publish an anticipated release schedule for all 
                statistical reports and reports to Congress that are 
                regularly or intermittently released by the Commission 
                and will be released during such year.
                  ``(B) Publication deadlines.--The Commission shall 
                publish each report identified in a schedule published 
                under subparagraph (A) not later than the date 
                indicated in such schedule for the anticipated release 
                of such report.
          ``(2) Decision documents.--The Commission shall publish each 
        order, decision, report, or action not later than 7 days after 
        the date of the adoption of such order, decision, report, or 
        action.
          ``(3) Effect if deadlines not met.--
                  ``(A) Notification of congress.--If the Commission 
                fails to publish an order, decision, report, or action 
                by a deadline described in paragraph (1)(B) or (2), the 
                Commission shall, not later than 7 days after such 
                deadline and every 14 days thereafter until the 
                publication of the order, decision, report, or action, 
                notify by letter the chairpersons and ranking members 
                of the Committee on Energy and Commerce of the House of 
                Representatives and the Committee on Commerce, Science, 
                and Transportation of the Senate. Such letter shall 
                identify such order, decision, report, or action, 
                specify the deadline, and describe the reason for the 
                delay. The Commission shall publish such letter.
                  ``(B) No impact on effectiveness.--The failure of the 
                Commission to publish an order, decision, report, or 
                action by a deadline described in paragraph (1)(B) or 
                (2) shall not render such order, decision, report, or 
                action ineffective when published.
  ``(i) Biannual Scorecard Reports.--
          ``(1) In general.--For the 6-month period beginning on 
        January 1st of each year and the 6-month period beginning on 
        July 1st of each year, the Commission shall prepare a report on 
        the performance of the Commission in conducting its proceedings 
        and meeting the deadlines established under subsections (g), 
        (h)(1)(B), and (h)(2).
          ``(2) Contents.--Each report required by paragraph (1) shall 
        contain detailed statistics on such performance, including, 
        with respect to each Bureau of the Commission--
                  ``(A) in the case of performance in meeting the 
                deadlines established under subsection (g), with 
                respect to each category established under such 
                subsection--
                          ``(i) the number of petitions, applications, 
                        complaints, and other filings seeking 
                        Commission action that were pending on the last 
                        day of the period covered by such report;
                          ``(ii) the number of filings described in 
                        clause (i) that were not resolved by the 
                        deadlines established under such subsection and 
                        the average length of time such filings have 
                        been pending; and
                          ``(iii) for petitions, applications, 
                        complaints, and other filings seeking 
                        Commission action that were resolved during 
                        such period, the average time between 
                        initiation and resolution and the percentage 
                        resolved by the deadlines established under 
                        such subsection;
                  ``(B) in the case of proceedings before an 
                administrative law judge--
                          ``(i) the number of such proceedings 
                        completed during such period; and
                          ``(ii) the number of such proceedings pending 
                        on the last day of such period; and
                  ``(C) the number of independent studies or analyses 
                published by the Commission during such period.
          ``(3) Publication and submission.--The Commission shall 
        publish and submit to the Committee on Energy and Commerce of 
        the House of Representatives and the Committee on Commerce, 
        Science, and Transportation of the Senate each report required 
        by paragraph (1) not later than the date that is 30 days after 
        the last day of the period covered by such report.
  ``(j) Transaction Review Standards.--
          ``(1) In general.--The Commission shall condition its 
        approval of a transfer of lines, a transfer of licenses, or any 
        other transaction under section 214, 309, or 310 or any other 
        provision of this Act only if--
                  ``(A) the imposed condition is narrowly tailored to 
                remedy a harm that arises as a direct result of the 
                specific transfer or specific transaction that this Act 
                empowers the Commission to review; and
                  ``(B) the Commission could impose a similar 
                requirement under the authority of a specific provision 
                of law other than a provision empowering the Commission 
                to review a transfer of lines, a transfer of licenses, 
                or other transaction.
          ``(2) Exclusions.--In reviewing a transfer of lines, a 
        transfer of licenses, or any other transaction under section 
        214, 309, or 310 or any other provision of this Act, the 
        Commission may not consider a voluntary commitment of a party 
        to such transfer or transaction unless the Commission could 
        adopt that voluntary commitment as a condition under paragraph 
        (1).
  ``(k) Access to Certain Information on Commission's Website.--The 
Commission shall provide direct access from the homepage of its website 
to--
          ``(1) detailed information regarding--
                  ``(A) the budget of the Commission for the current 
                fiscal year;
                  ``(B) the appropriations for the Commission for such 
                fiscal year; and
                  ``(C) the total number of full-time equivalent 
                employees of the Commission; and
          ``(2) the performance plan most recently made available by 
        the Commission under section 1115(b) of title 31, United States 
        Code.
  ``(l) Federal Register Publication.--
          ``(1) In general.--In the case of any document adopted by the 
        Commission that the Commission is required, under any provision 
        of law, to publish in the Federal Register, the Commission 
        shall, not later than the date described in paragraph (2), 
        complete all Commission actions necessary for such document to 
        be so published.
          ``(2) Date described.--The date described in this paragraph 
        is the earlier of--
                  ``(A) the day that is 45 days after the date of the 
                release of the document; or
                  ``(B) the day by which such actions must be completed 
                to comply with any deadline under any other provision 
                of law.
          ``(3) No effect on deadlines for publication in other form.--
        In the case of a deadline that does not specify that the form 
        of publication is publication in the Federal Register, the 
        Commission may comply with such deadline by publishing the 
        document in another form. Such other form of publication does 
        not relieve the Commission of any Federal Register publication 
        requirement applicable to such document, including the 
        requirement of paragraph (1).
  ``(m) Consumer Complaint Database.--
          ``(1) In general.--In evaluating and processing consumer 
        complaints, the Commission shall present information about such 
        complaints in a publicly available, searchable database on its 
        website that--
                  ``(A) facilitates easy use by consumers; and
                  ``(B) to the extent practicable, is sortable and 
                accessible by--
                          ``(i) the date of the filing of the 
                        complaint;
                          ``(ii) the topic of the complaint;
                          ``(iii) the party complained of; and
                          ``(iv) other elements that the Commission 
                        considers in the public interest.
          ``(2) Duplicative complaints.--In the case of multiple 
        complaints arising from the same alleged misconduct, the 
        Commission shall be required to include only information 
        concerning one such complaint in the database described in 
        paragraph (1).
  ``(n) Form of Publication.--
          ``(1) In general.--In complying with a requirement of this 
        section to publish a document, the Commission shall publish 
        such document on its website, in addition to publishing such 
        document in any other form that the Commission is required to 
        use or is permitted to and chooses to use.
          ``(2) Exception.--The Commission shall by rule establish 
        procedures for redacting documents required to be published by 
        this section so that the published versions of such documents 
        do not contain--
                  ``(A) information the publication of which would be 
                detrimental to national security, homeland security, 
                law enforcement, or public safety; or
                  ``(B) information that is proprietary or 
                confidential.
  ``(o) Definitions.--In this section:
          ``(1) Amendment.--The term `amendment' includes, when used 
        with respect to an existing rule, the deletion of such rule.
          ``(2) Bipartisan majority.--The term `bipartisan majority' 
        means, when used with respect to a group of Commissioners, that 
        such group--
                  ``(A) is a group of 3 or more Commissioners; and
                  ``(B) includes, for each political party of which any 
                Commissioner is a member, at least 1 Commissioner who 
                is a member of such political party, and, if any 
                Commissioner has no political party affiliation, at 
                least 1 unaffiliated Commissioner.
          ``(3) Economically significant impact.--The term 
        `economically significant impact' means an effect on the 
        economy of $100,000,000 or more annually or a material adverse 
        effect on the economy, a sector of the economy, productivity, 
        competition, jobs, the environment, public health or safety, or 
        State, local, or tribal governments or communities.
          ``(4) Performance measure.--The term `performance measure' 
        means an objective and quantifiable outcome measure or output 
        measure (as such terms are defined in section 1115 of title 31, 
        United States Code).
          ``(5) Program activity.--The term `program activity' has the 
        meaning given such term in section 1115 of title 31, United 
        States Code, except that such term also includes any annual 
        collection or distribution or related series of collections or 
        distributions by the Commission of an amount that is greater 
        than or equal to $100,000,000.
          ``(6) Other definitions.--The terms `agency action', `ex 
        parte communication', and `rule' have the meanings given such 
        terms in section 551 of title 5, United States Code.''.
  (b) Effective Date and Implementing Rules.--
          (1) Effective date.--
                  (A) In general.--The requirements of section 13 of 
                the Communications Act of 1934, as added by subsection 
                (a), shall apply beginning on the date that is 6 months 
                after the date of the enactment of this Act.
                  (B) Prior notices of proposed rulemaking.--If the 
                Federal Communications Commission identifies under 
                paragraph (2)(B)(ii) of subsection (a) of such section 
                13 a notice of proposed rulemaking issued prior to the 
                date of the enactment of this Act--
                          (i) such notice shall be deemed to have 
                        complied with paragraph (1) of such subsection; 
                        and
                          (ii) if such notice did not contain the 
                        specific language of a proposed rule or a 
                        proposed amendment of an existing rule, 
                        paragraph (2)(A) of such subsection shall be 
                        satisfied if the adopted rule or the amendment 
                        of an existing rule is a logical outgrowth of 
                        such notice.
                  (C) Schedules and reports.--Notwithstanding 
                subparagraph (A), subsections (h)(1) and (i) of such 
                section shall apply with respect to 2013 and any year 
                thereafter.
          (2) Rules.--The Federal Communications Commission shall 
        promulgate the rules necessary to carry out such section not 
        later than 1 year after the date of the enactment of this Act.
          (3) Procedures for adopting rules.--Notwithstanding paragraph 
        (1)(A), in promulgating rules to carry out such section, the 
        Federal Communications Commission shall comply with the 
        requirements of subsections (a) and (h)(2) of such section.

SEC. 3. CATEGORIZATION OF TCPA INQUIRIES AND COMPLAINTS IN QUARTERLY 
                    REPORT.

  In compiling its quarterly report with respect to informal consumer 
inquiries and complaints, the Federal Communications Commission may not 
categorize an inquiry or complaint with respect to section 227 of the 
Communications Act of 1934 (47 U.S.C. 227) as being a wireline inquiry 
or complaint or a wireless inquiry or complaint unless the party whose 
conduct is the subject of the inquiry or complaint is a wireline 
carrier or a wireless carrier, respectively.

SEC. 4. EFFECT ON OTHER LAWS.

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

                          Purpose and Summary

    H.R. 3309, the ``Federal Communications Commission Process 
Reform Act of 2012,'' requires the Federal Communications 
Commission (FCC) to be more transparent and methodical in 
determining whether to intervene in the communications 
marketplace, in dealing with consumers and regulated parties, 
and in reviewing transactions. Specifically, the legislation 
requires the FCC:
           to survey the marketplace through a notice 
        of inquiry before proposing new rules that would 
        increase costs for businesses and consumers;
           to conduct another notice of inquiry before 
        proposing rules if three years have elapsed since the 
        last inquiry, to make sure the FCC does not act on a 
        stale record;
           to publish the specific text of proposed 
        rules, so the public and industry know what is being 
        considered and have adequate information to provide 
        input;
           to allow the public and industry adequate 
        time both to review proposed rules, ex parte filings 
        and reports, as well as to provide comment;
           to identify a market failure or consumer 
        harm and conduct a cost benefit analysis before 
        adopting economically significant rules that cost more 
        than $100 million;
           to create performance measures to evaluate 
        the effectiveness of large programs that cost more than 
        $100 million, such as the Universal Service Fund; and
           to set shot clocks and schedules for issuing 
        decisions and to report to Congress on how well it is 
        abiding by them, so the public and industry know when 
        issues will be resolved.
    The bill has received widespread support, including from 
the U.S. Chamber of Commerce, the US Telecom Association, the 
National Telecommunications Cooperative Association, the 
National Cable and Telecommunications Association, CTIA--The 
Wireless Association, the National Association of Broadcasters, 
AT&T, Verizon, and the National Association of Regulatory 
Utility Commissioners. As the rest of this report shows, it 
also borrows ideas from a number of academics and public 
interest groups.

                  Background and Need for Legislation

    The communications and technology sector is among the most 
competitive and innovative of our economy. From fiber optics to 
4G wireless service, from the smartphone to the tablet to the 
connected TV, this sector has been creating new services and 
new devices--and the high-quality jobs that come with high-tech 
innovation and investment--despite the economic doldrums our 
country is caught in. In 2010, the industry invested $66 
billion to deploy broadband infrastructure, $3 billion more 
than in 2009, totaling more than half a trillion dollars 
invested to upgrade their networks over the past 8 years. See 
US Telecom, Broadband Industry 
Stats, Broadband Investment, http://www.ustelecom.org/
broadband-industry/broadband-industry-stats/investment. America 
is now the world leader in wireless LTE network deployment. To 
ensure it doesn't stall that economic engine, the FCC should 
not only strive to be the most open and transparent agency in 
the Federal government, but should also engage in rigorous 
analyses demonstrating the need for regulation before 
intervening in the marketplace.
    It does not always do so, and the Committee on Energy and 
Commerce has long concerned itself with shortcomings in the 
processes and procedures of the agency under both Republican 
and Democrat-led commissions. For example, in the 110th 
Congress, the Committee and its Subcommittee on Oversight and 
Investigations investigated the FCC's procedures, and the 
Committee ultimately released a report documenting abuses at 
the agency. See House Committee on Energy and Commerce, 
Deception and Distrust: The Federal Communications Commission 
under Chairman Kevin J. Martin, 110th Cong. (2008). In the 
111th Congress, Rep. Joe Barton introduced H.R. 2183, a bill to 
improve public participation and overall decisionmaking at the 
FCC, which was the origin of many of the ideas in H.R. 3309.
    Criticism of the FCC's processes has not been isolated to 
Capitol Hill. In 2008, the National Association of Regulatory 
Utility Commissioners wrote an open letter to President Obama's 
transition team, highlighting the need for structural and 
procedural reforms at the FCC and suggesting 13 separate 
reforms to consider. See Letter from Frederick Butler, 
President, NARUC, to Susan Crawford, Visiting Professor, Yale 
Law School, Obama-Biden Transition Team on the FCC (Dec. 12, 
2008), available at http://www.naruc.org/Testimony/
08%201212%20RV%20FCC%20 Transition%20letter.pdf. In 2009, then-
Professor Philip Weiser wrote that ``the great weight of 
opinion is that the FCC has always operated in a suboptimal 
fashion and is in dire need of institutional reform.'' Philip 
J. Weiser, FCC Reform and the Future of Telecommunications 
Policy at 2 (Jan. 5, 2009), available at http://fcc-reform.org/
paper/fcc-reform-and-future-telecommunications-policy. And in 
2010, Public Knowledge called for a ``shock to the system'' and 
``a surrender of discretion by FCC leadership and a move away 
from unpredictable and ad hoc decisionmaking.'' Michael 
Weinberg and Gigi B. Sohn, An FCC for the Internet Age: 
Recommendations for Reforming the Federal Communications 
Commission (Mar. 5, 2010), available at http://go.usa.gov/PyH.
    Some opponents of the bill argue the FCC process can be 
improved non-legislatively with congressional oversight. Yet in 
1991, then-Chairman John Dingell raised many of the same 
process concerns H.R. 3309 seeks to address. See Letter from 
John D. Dingell, Chairman, Committee on Energy and Commerce, to 
the Honorable Alfred C. Sikes, Chairman, Federal Communications 
Commission (May 21, 1991), quoted in FCC Process Reform: 
Hearing before the Subcommittee on Communications and 
Technology, 112th Cong., at 79-81 (May 13, 2011). It would 
appear that two decades of Congressional oversight alone has 
not succeeded in remediating the problems.
    We do note that FCC Chairman Julius Genachowski has 
improved many of the processes of the FCC, but only legislation 
can ensure that these reforms remain intact from one 
administration to the next. H.R. 3309 is the fruits of the 
Subcommittee on Communications and Technology's own ten-month, 
open and transparent legislative process to secure these 
improvements and build upon them.
    Throughout this process, we sought to reach common ground 
by accommodating any legitimate concerns by the bill's critics. 
To avoid micromanaging the Commission, in many cases the 
legislation asks the FCC to adopt its own rules implementing 
the bill's provisions. In response to arguments that the bill 
creates procedural hurdles in small matters that do not warrant 
them and in emergencies where time is of the essence, we note 
that the legislation incorporates the existing process waiver 
standard in the Administrative Procedures Act (APA). It even 
adds a waiver standard where the APA provision would not apply, 
creates exceptions when proposed rules would not burden 
consumers or industry, and takes a page out of executive orders 
from Presidents Clinton and Obama by limiting some applications 
to economically significant rules that would cost more than 
$100 million.
    To address concerns about litigation risk, we added 
definitions to provide clarity and incorporated standards from 
existing case law, executive orders, and the Government 
Performance Results Act of 1993. Better process is also likely 
to reduce process-based appeals, not increase them. It should 
also lead to better analyses, making decisions less susceptible 
to substantive challenges. If potential litigation risk were 
reason not to pass a law, no new law would ever be passed. 
Every legislative improvement must start somewhere. Moreover, 
much of what the FCC does is litigated because of what's at 
stake; this bill is not likely to cause litigation where there 
would not already be lawsuits.
    Opponents of the bill say we should simply ask the FCC to 
conduct its own inquiry into whether to reform itself. Such an 
approach would likely only be productive during a commission 
that was already raising the bar on process, where it would be 
needed least and, unlike a statutory change, could not bind 
future commissions. Opponents also suggest we drop most of the 
changes, leaving little more than the ``sunshine'' reform. 
Although sunshine reform plays a role in this bill in 
conjunction with other reforms, allowing private meetings among 
FCC Commissioners and doing nothing else would be a strange way 
to bring transparency to the FCC.
    Some opponents of the bill also argue any process reform 
should apply to all agencies, not just one. Waiting for reform 
of the entire APA is neither practical nor necessary. While the 
APA sets the floor for good practice, there is no reason not to 
ask this agency to do more, especially since it impacts so much 
of the economy, and the APA has not prevented recent bad 
practices. We note that the Communications Act also already 
contains FCC-specific process requirements and that even 
opponents of the bill support an FCC sunshine reform bill, 
which would be agency specific.
    The communications industry is one of the few sectors still 
firing on all cylinders in this economy; the market is more 
competitive than it has ever been before, and the underlying 
technologies and business models are evolving at a rapid and 
accelerating pace. The FCC cannot know if intervention is 
appropriate unless it has rigorously examined the marketplace 
and afforded the public and affected parties adequate 
opportunity to review proposals and provide input. Consumers, 
small businesses, and outside-the-beltway stakeholders in 
particular do not have the regulatory lawyers needed for rushed 
review of proceedings; the only way to get their input is to 
give them time to provide feedback on well delineated 
proposals. Before it starts intervening, the FCC should make 
sure it has a full understanding of the state of competition 
and current technologies.

                                Hearings

    The Energy and Commerce Committee has long been concerned 
about the processes of the FCC and has had a number of 
oversight hearings in recent Congresses. In the 110th Congress, 
the Subcommittee on Telecommunications and the Internet held 
two oversight hearings of the FCC, one on March 14, 2007 and a 
second on July 24, 2007. At each hearing, the Subcommittee 
received testimony from Chairman Kevin J. Martin, Commissioner 
Michael J. Copps, Commissioner Robert M. McDowell, Commissioner 
Jonathan S. Adelstein, and Commissioner Deborah Taylor Tate.
    During the 111th Congress, the Subcommittee on 
Telecommunications and the Internet held an oversight hearing 
on September 17, 2009, entitled ``Oversight of the Federal 
Communications Commission.'' The Subcommittee received 
testimony from Chairman Julius Genachowski, Commissioner 
Michael J. Copps, Commissioner Robert M. McDowell, Commissioner 
Mignon Clyburn, and Commissioner Meredith Attwell Baker.
    The Subcommittee on Communications and Technology held an 
oversight hearing on May 13, 2011, entitled ``FCC Process 
Reform.'' The Subcommittee received testimony from FCC Chairman 
Julius Genachowski, Commissioner Michael J. Copps, Commissioner 
Robert M. McDowell, and Commissioner Mignon Clyburn.
    The Subcommittee on Communications and Technology held a 
legislative hearing on June 22, 2011, entitled ``Reforming FCC 
Process.'' The Subcommittee examined a staff discussion draft 
of legislation to reform the FCC's processes. The Subcommittee 
received testimony from the Honorable John Sununu, Honorary Co-
Chair of Broadband for America; Kathleen Abernathy, Chief Legal 
Officer and Executive Vice President of Frontier 
Communications; Mark Cooper, Research Director of the Consumer 
Federation of America; Randolph J. May, President of the Free 
State Foundation; Brad Ramsay, General Counsel of the National 
Association of Regulatory Utility Commissioners; and Ronald 
Levin, William R. Orthwein Distinguished Professor of Law at 
Washington University School of Law.

                        Committee Consideration

    Representative Greg Walden, together with Rep. Adam 
Kinzinger, introduced H.R. 3309 on November 2, 2011.
    On November 16, 2011, the Subcommittee on Communications 
and Technology met in open markup session and favorably 
reported the bill, as amended, to the full committee by a 
record vote of 14 yeas and 9 nays.
    On March 6, 2012, the Committee on Energy and Commerce met 
in open markup session and favorably reported the bill, as 
amended, to the House by a record vote of 31 yeas and 16 nays.

                            Committee Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee to list the record votes 
on the motion to report legislation and amendments thereto.
    At the November 16, 2011, open markup session of the 
Subcommittee on Communications and Technology, a motion by Ms. 
Eshoo to amend H.R. 3309 regarding a substitute amendment was 
defeated by a record vote of 10 yeas and 14 nays. A motion by 
Mr. Walden to order H.R. 3309 reported to the Committee, as 
amended, was agreed to by a record vote of 14 yeas and 9 nays.
    At the March 6, 2012, open markup session of the Committee 
on Energy and Commerce, a motion by Ms. Eshoo to amend H.R. 
3309 regarding a FCC rulemaking to consider procedural changes 
to its rules, reporting requirements, and nonpublic 
collaborative discussions was defeated by a record vote of 18 
yeas to 32 nays. A second motion by Ms. Eshoo to amend H.R. 
3309 regarding certifications identifying certain donors of 
sponsors of political programming placed in public inspection 
files was defeated by a record vote of 16 yeas to 30 nays. A 
motion by Mr. Upton to order H.R. 3309 reported to the House, 
as amended, was agreed to by a record vote of 31 yeas and 16 
nays.
    The following reflects the recorded votes taken during the 
Committee consideration, including the names of those Members 
voting for and against.


                      Committee Oversight Findings

    Pursuant to clause 3(c)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee held oversight and 
legislative hearings and made findings that are reflected in 
this report.

         Statement of General Performance Goals and Objectives

    The goals and objectives of H.R. 3309, the ``Federal 
Communications Commission Process Reform Act of 2012,'' are to 
require the Commission to be more transparent and methodical in 
determining whether to intervene in the communications 
marketplace, in dealing with consumers and regulated parties, 
and in reviewing transactions. Among other things, H.R. 3309 
would require the FCC to establish performance measures for its 
largest programs, like the Universal Service Fund and the 
Interstate Telecommunications Relay Service Fund, and report on 
a biannual basis on its own performance in resolving petitions, 
applications, and complaints and conducting rulemakings.

            New Budget Authority, Entitlement Authority and 
                            Tax Expenditures

    In compliance with clause 3(c)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee finds that H.R. 
3309, the ``Federal Communications Commission Process Reform 
Act of 2012,'' would result in no new or increased budget 
authority, entitlement authority, or tax expenditures or 
revenues.

                                Earmarks

    In compliance with clause 9(e), 9(f), and 9(g) of rule XXI 
of the Rules of the House of Representatives, the Committee 
finds that H.R. 3309, the ``Federal Communications Commission 
Process Reform Act of 2012,'' contains no earmarks, limited tax 
benefits, or limited tariff benefits.

                        Committee Cost Estimate

    The Committee adopts as its own the cost estimate provided 
by the Congressional Budget Office. Pursuant to clause 3(c)(3) 
of rule XIII of the Rules of the House of Representatives, the 
following is the cost estimate provided by the Congressional 
Budget Office pursuant to section 402 of the Congressional 
Budget Act of 1974.

                                                    March 19, 2012.
Hon. Fred Upton,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3309, the Federal 
Communications Commission Process Reform Act of 2012.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Susan Willie.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

H.R. 3309--Federal Communications Commission Process Reform Act of 2012

    H.R. 3309 would make a number of changes to procedures that 
the Federal Communications Commission (FCC) follows in its 
rulemaking process. The bill also would require the FCC to 
create a database, made available to the public, that contains 
information about complaints made by consumers.
    The bill would require all notices of proposed rulemakings 
(NPRMs) to be preceded by a notice of inquiry and would require 
the agency to allow 60 days for public comment prior to issuing 
an NPRM. Currently, about one-third of the agency's NPRMs 
follow a notice of inquiry and the length of time allotted for 
public comment varies. H.R. 3309 also would require a broader 
review of any rules expected to have an economic impact greater 
than $100 million and a determination that the benefits of such 
a rule justify its cost. Further, the bill would make changes 
to the timing and availability of certain reports proposed by 
the FCC.
    Based on information from the FCC, CBO estimates that the 
agency would require 20 additional staff positions to handle 
the new rulemaking, reporting, and analysis activities required 
under the bill. CBO estimates that implementing the provisions 
of H.R. 3309 would cost $26 million over the 2013-2017 period, 
assuming appropriation of the necessary amounts, for additional 
personnel and information technology expenses. Under current 
law, the FCC is authorized to collect fees sufficient to offset 
the cost of its regulatory activities each year; therefore, CBO 
estimates that the net cost to implement the provisions of H.R. 
3309 would not be significant, assuming annual appropriation 
actions consistent with the agency's authorities. Enacting H.R. 
3309 would not affect direct spending or revenues; therefore, 
pay-as-you-go procedures do not apply.
    H.R. 3309 contains no intergovernmental mandates as defined 
in the Unfunded Mandates Reform Act (UMRA) and would not affect 
the budgets of state, local, or tribal governments.
    To the extent that the FCC would increase annual fee 
collections to offset the costs of its additional regulatory 
activities, the bill could impose a private-sector mandate on 
some commercial entities regulated by the FCC. Based on 
information from the FCC, CBO estimates that the cost of the 
mandate would be small, and fall well below the annual 
threshold established in UMRA for private-sector mandates ($146 
million in 2012, adjusted annually for inflation).
    The CBO staff contact for this estimate is Susan Willie. 
The estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                       Federal Mandates Statement

    The Committee adopts as its own the estimate of Federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act.

                      Advisory Committee Statement

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by this 
legislation.

                  Applicability to Legislative Branch

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

               Section-by-Section Analysis of Legislation


Section 1

    Section 1 defines the short title as ``Federal 
Communications Commission Process Reform Act of 2012.''

Section 2(a)

    Section 2(a) adds section 13 to the Communications Act.
    New Subsection 13(a).--Rulemaking Reforms. This subsection 
reforms the Commission's rulemaking processes, applying the 
rulemaking reforms U.S. presidents have applied to the 
executive agencies as well as other best practices.
    First, this subsection seeks to ensure that the Commission 
has fresh information about the communications marketplace 
before it prescribes new rules that would burden consumers or 
the industry. This subsection accomplishes this goal by 
requiring the Commission to survey the marketplace before 
initiating a new rulemaking; to take action, if any, on that 
information within three years; and to take any action on 
information gathered in response to Notices of Proposed 
Rulemaking within three years, as well. The requirement to 
survey the marketplace parallels the requirement President 
Obama has imposed on executive agencies. Exec. Order No. 13563, 
76 Fed. Reg. 3821 (Jan. 21, 2011) (``Before issuing a notice of 
proposed rulemaking, each agency, where feasible and 
appropriate, shall seek the views of those who are likely to be 
affected, including those who are likely to benefit from and 
those who are potentially subject to such rulemaking.''). It is 
a requirement endorsed by President Obama's Jobs Council. 
President's Council on Jobs and Competitiveness, Road Map to 
Renewal: 2011 Year-End Report at 43, available at http://
files.jobs-council.com/files/2012/01/
JobsCouncil_2011YearEndReport1.pdf. And at the Subcommittee on 
Communications and Technology's May 13, 2011, hearing, then-
Commissioner Michael Copps and Commissioner Robert McDowell 
both endorsed a Notice-of-Inquiry requirement, noting the need 
for flexibility to handle ``crises and emergencies, terror 
attacks and things that demand expeditious action.'' FCC 
Process Reform: Hearing before the Subcommittee on 
Communications and Technology, 112th Cong., at 87 (May 13, 
2011). Following the suggestion of these Commissioners, this 
subsection incorporates exceptions from the Notice-of-Inquiry 
requirement in cases where the Commission finds that the 
proposed rules would not impose additional burdens on consumers 
or industry or where the Commission finds good cause (such as a 
national emergency) making compliance impossible or 
impractical. This subsection's exception for good cause is 
intended to parallel the good cause exception contained in the 
APA, specifically the exception in the third sentence of 
section 553(b) of title 5, United States Code. This subsection 
provides additional flexibility to the FCC by allowing it to 
avoid issuing a Notice of Inquiry in certain other 
circumstances, such as when it does so in direct response to a 
court remand or as a Further Notice of Proposed Rulemaking 
building upon an earlier Notice of Proposed Rulemaking (NPRM) 
on the same subject-matter.
    Second, this subsection seeks to require that the public 
have a full and fair opportunity to review and comment on rules 
proposed by the Commission. In the past decade, the Commission 
has fallen into the habit of delineating only the broad 
brushstrokes of potential action in Notices of Proposed 
Rulemaking, without including the specific language of proposed 
rules. According to the Commission, NPRMs issued in the years 
before Chairman Genachowski's tenure included the text of 
proposed rules only 38 percent of the time. See House Energy 
and Commerce Committee, Staff Report on the Workload of the 
Federal Communications Commission, at 4 (Nov. 15, 2011), 
available at http://go.usa.gov/PmJ. As NARUC has put it: ``The 
FCC frequently releases vague Notices of Proposed Rulemaking 
that fail to articulate proposed rules and read more like 
Notices of Inquiry by posing countless open-ended questions.'' 
Letter from Frederick Butler, President, NARUC, to Susan 
Crawford, Visiting Professor, Yale Law School, Obama-Biden 
Transition Team on the FCC (Dec. 12, 2008), available at http:/
/www.naruc.org/Testimony/08%201212%20RV%20FCC%20 
Transition%20letter.pdf.
    The inclusion of the specific text of proposed rules is ``a 
critical step in facilitating meaningful discussion.'' Michael 
Weinberg and Gigi B. Sohn, An FCC for the Internet Age: 
Recommendations for Reforming the Federal Communications 
Commission, at 4 (Mar. 5, 2010), available at http://
go.usa.gov/PyH. Without the text of the proposed rules, the 
public is left ``with the challenge of guessing what issues are 
really important,'' which ``undermines the opportunity for 
meaningful participation and effective deliberation.'' Philip 
J. Weiser, FCC Reform and the Future of Telecommunications 
Policy at 16-17 (Jan. 5, 2009), available at http://fcc-
reform.org/paper/fcc-reform-and-future-telecommunications-
policy.
    Although Chairman Genachwoski has shown substantial 
progress in this area--85 percent of NPRMs have contained the 
text of proposed rules during his tenure, see House Energy and 
Commerce Committee, Staff Report on the Workload of the Federal 
Communications Commission, at 3 (Nov. 15, 2011), available at 
http://go.usa.gov/PmJ--good government practices should not 
vary from administration to administration. The public deserves 
a Commission that can commit to ``publishing the text of 
proposed rules sufficiently in advance of Commission meetings 
for both (i) the public to have a meaningful opportunity to 
comment and (ii) the Commissioners to have a meaningful 
opportunity to review such comments.'' See Letter from Rep. 
John D. Dingell, Chairman, Committee on Energy and Commerce, to 
the Honorable Kevin J. Martin, Chairman, Federal Communications 
Commission (Dec. 3, 2007). This subsection cements that 
commitment in law, requiring the FCC to include the text of 
proposed rules in NPRMs and requiring that any rules adopted by 
the Commission be the logical outgrowth of the rules proposed. 
This latter requirement is an adaptation of the logical-
outgrowth test used by circuit courts to determine when an NPRM 
has not given parties fair notice of an agency's proposal. See, 
e.g., United Steelworkers of America, AFL-CIO-CLC v. Marshall, 
647 F.2d 1189, 1221 (D.C. Circuit 1980), cert. denied sub nom. 
Lead Industries Ass'n, Inc. v. Donovan, 453 U.S. 913 (1981). 
This subsection's codification of the logical-outgrowth test 
complements the court precedent to create an administrable test 
to ensure that the specific text of the rules proposed by the 
FCC give adequate notice to the public for meaningful 
participation in the comment process.
    Third, this subsection seeks to ensure that the public has 
adequate time to review proposed rules of the Commission. The 
need for adequate opportunity for public comment has been 
widely recognized in administrative law. The Administrative 
Conference of the United States has recommended that Congress 
require agencies offer comment periods of ``no fewer than 30 
days.'' ACUS, Improving the Environment for Agency Rulemaking, 
Recommendation No. 93-4. President Obama's executive order on 
regulatory reform ordered agencies to ``afford the public a 
meaningful opportunity to comment through the Internet on any 
proposed regulation, with a comment period that should 
generally be at least 60 days.'' Exec. Order No. 13563, 76 Fed. 
Reg. 3821 (Jan. 21, 2011). More recently, the Administrative 
Conference has recommended that agencies offer commenters at 
least 60 days for significant regulatory actions and at least 
30 days for all other rulemakings as well as a period for reply 
comments. ACUS, Rulemaking Comments, Recommendation No. 2011-2. 
This subsection responds to these concerns by requiring the 
Commission to provide parties at least 30 days each to comment 
and reply on proposed rules of the Commission. Compliance with 
this requirement should be feasible as 84 percent of NPRMs 
issued under Chairman Genachowski already provide a full 30 
days for public comment, see House Energy and Commerce 
Committee, Staff Report on the Workload of the Federal 
Communications Commission, at 3-4 (Nov. 15, 2011), available at 
http://go.usa.gov/PmJ, and the Commission has rarely if ever 
adopted rules within 60 days of issuing a Notice of Proposed 
Rulemaking.
    Fourth, this subsection seeks to apply some of the 
regulatory reforms that Presidents Ronald Reagan, William J. 
Clinton, George W. Bush, and Barack Obama directed for 
executive agencies to the FCC. President Obama's executive 
order, among other things, required that every executive agency 
``propose or adopt a regulation only upon a reasoned 
determination that its benefits justify its costs (recognizing 
that some benefits and costs are difficult to quantify)'' and 
``tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives, taking into 
account, among other things, and to the extent practicable, the 
costs of cumulative regulations.'' Exec. Order No. 13563, 76 
Fed. Reg. 3821 (Jan. 21, 2011). President Bush's executive 
order required each executive agency to ``identify in writing 
the specific market failure (such as externalities, market 
power, lack of information) or other specific problem that it 
intends to address (including, where applicable, the failures 
of public institutions) that warrant new agency action.'' Exec. 
Order No. 13422, 72 Fed. Reg. 2763 (Jan. 18, 2007). And both of 
these executive orders built upon the two-level framework of 
President Clinton's executive order. For every agency 
rulemaking, that order required executive agencies to 
``identify the problem that it intends to address (including, 
where applicable, the failures of private markets or public 
institutions that warrant new agency action)'' and ``assess 
both the costs and the benefits of the intended regulation and 
recognizing that some costs and benefits are difficult to 
quantify, propose or adopt a regulation only upon a reasoned 
determination that the benefits of the intended regulation 
justify its costs.'' Exec. Order No. 12866, 58 Fed. Reg. 51735 
(Sept. 30, 1993). For significant regulatory actions, meaning 
in large part rules that would have ``an annual effect on the 
economy of $100 million or more,'' that order required 
executive agencies to clear an independent review process 
administered by the Office of Information and Regulatory 
Affairs. Id. That independent review process requires the 
agency to conduct a regulatory impact analysis and go through a 
``demanding and sophisticated set of principles for policy 
analysis.'' Response to Questions of Ronald M. Levin, William 
R. Orthwein Distinguished Professor of Law, Reforming FCC 
Process: Hearing before the Subcommittee on Communications and 
Technology, 112th Cong. (July 22, 2011).
    President Obama has suggested that the regulatory 
principles applied to executive agencies should apply to 
independent agencies as well. Exec. Order No. 13579, 76 Fed. 
Reg. 41587 (July 11, 2011). Similarly, President Obama's Jobs 
Council has recommended that ``Congress should require 
[independent regulatory commissions] to conduct cost-benefit 
analysis for economically significant regulations,'' including 
``regulatory impact analyses, coupled with some form of third-
party regulatory review.'' President's Council on Jobs and 
Competitiveness, Road Map to Renewal: 2011 Year-End Report at 
45, available at http://files.jobs-council.com/files/2012/01/
JobsCouncil_2011YearEndReport1.pdf. Although full compliance 
with the executive orders may be desirable, this subsection 
takes a more moderate approach tailored to the specific 
circumstances of the Commission as an independent agency. 
Unlike the executive orders, this subsection does not impose 
any requirements on the FCC for rules that do not create an 
economically significant impact (although it would not preclude 
the FCC from following best practices in those cases). For 
rules with an economically significant impact, this subsection 
does not require the full regulatory impact analysis coupled 
with pre-approval by the Office of Information and Regulatory 
Affairs imposed on executive affairs. Instead, this subsection 
imposes on the FCC a problem-identification requirement drawn 
from the language of Executive Order 13422 and a cost-benefit 
assessment requirement drawn from the language of Executive 
Order 13563, accompanied with the potential for judicial 
review. Meaningful independent review by the courts rather than 
the executive branch is more appropriate for an independent 
agency like the FCC, and such review should reduce the burden 
on the FCC since it will only occur after the FCC adopts a new 
rule and if a stakeholder chooses to challenge that rule in 
court. This lighter-touch approach is furthermore intended to 
give the FCC flexibility to carry out the Communications Act, 
including prescribing rules to guard against classic market 
failures that may cause actual consumer harms, to protect 
public safety, and to guard against unwarranted interference 
among spectrum holders. This approach should encourage the FCC 
to engage in as rigorous an analysis of the costs of its 
proposed regulations and viable alternatives to it as its 
resources will allow, without constricting it to one particular 
approach or another. This lighter-touch approach is also more 
appropriate given independent review by the courts, which are 
not as steeped in economically rigorous analysis as the Office 
of Information and Regulatory Affairs.
    Fifth and finally, this subsection seeks to increase the 
transparency of the Commission's largest programs, such as the 
Universal Service Fund and the Interstate Telecommunications 
Relay Service Fund. The Government Performance Results Act of 
1993 already requires the FCC and other agencies to identify 
yearly performance goals for all items on the Federal budget. 
See 5 U.S.C. Sec. 1115 et al. But despite this requirement, the 
Government Accountability Office has repeatedly cited the FCC 
for failing to establish objective, quantifiable performance 
measures for the various programs within the Universal Service 
Fund. See, e.g., GAO, Improved Management Can Enhance FCC 
Decision Making for the Universal Service Fund Low-Income 
Program, GAO-11-11 (Oct. 2010); GAO, Long-Term Strategic Vision 
Would Help Ensure Targeting of E-Rate Funds to Highest-Priority 
Uses, GAO-09-253 (Mar. 2009); GAO, FCC Needs To Improve 
Performance Management and Strengthen Oversight of the High-
Cost Program, GAO-08-633 (June 2008); GAO, Greater Involvement 
Needed by FCC in the Management and Oversight of the E-Rate 
Program, GAO-5-151 (Feb. 2005). Although the Commission has 
recently adopted some performance measures for the Universal 
Service Fund's high-cost program, Connect America Fund et al., 
WC Docket No. 10-90 et al., Report and Order and Further Notice 
of Proposed Rulemaking, 26 FCC Rcd 17663, 17679-83, paras. 46-
59 (2011), much more work is needed to give consumers, 
Congress, and industry stakeholders insight into how well the 
FCC is spending federal funds.
    To remedy this situation, this subsection requires the 
Commission to develop performance measures for its program 
activities, defined as each program listed in the Federal 
budget as well as each program through which the Commission 
collects or distributes $100 million or more, relying when 
possible, on data it already collects. To reduce the 
administrative burden, this subsection does not require the FCC 
to adopt performance measures immediately but instead to adopt 
them as it moves forward with reforms of the Universal Service 
Fund, the Interstate Telecommunications Relay Service Fund, and 
its other program activities. The Committee expects that the 
Commission will include performance measures that address both 
the collection and distribution of funds. In addition to the 
efficacy of the Commission's spending, for example, the public 
deserves to know how well the Commission's regulatory-fee 
system is working, such as how much it costs to administer, the 
deadweight losses and competitive harms associated with the 
Commission's current system, and its efficiency in assessing 
regulatory fees in proportion to regulatory benefits. Similar 
metrics would be appropriate for the contribution systems 
funding universal service and telecommunications relay service. 
Given that the FCC already has 421 separate information 
collections approved by the Office of Information and 
Regulatory Affairs, see OIRA, Inventory of Currently Approved 
Information Collections, http://www.reginfo.gov/public/do/
PRAMain (search for ``Federal Communications Commission''), and 
given the FCC's own recognition that it needs to improve its 
own information practices, see GAO, Information Collection and 
Management at the Federal Communications Commission, GAO-10-249 
(Jan. 2010), the Committee does not expect the FCC will need to 
create new information collections in order to establish 
meaningful performance measures. If the FCC determines 
otherwise, it is the expectation of the Committee that it will 
first look to consolidating and reducing the burden of existing 
collections before imposing new burdens.
    In all, these rulemaking reforms build upon the foundation 
of the APA, the Government Performance Results Act of 1993, and 
executive orders since President Reagan to improve the 
processes of the FCC and establish best practices there. 
Compliance with these process improvements is certainly 
feasible: Chairman Genachowski himself has ``made regulatory 
reform a top priority'' at the Commission, adopted many of the 
reforms outlined in this subsection including the incorporation 
of ``cost-benefit analysis into [agency] decision-making,'' and 
said that the FCC would ``follow the spirit'' of Executive 
Order 13563. Statement from FCC Chairman Julius Genachowski on 
the Executive Order on Regulatory Reform and Independent 
Agencies (July 11, 2011), available at http://go.usa.gov/P6k. 
Because this subsection builds on these efforts and is 
incorporated into the Communications Act (so courts should 
defer to reasonable interpretations of this subsection, see 
Chevron U.S.A., Inc. v. Natural Resources Defense Council, 
Inc., 467 U.S. 837 (1984)), the Committee expects that 
implementation of these rulemaking reforms should be relatively 
straightforward for the Commission with a minimum of litigation 
over the meaning of the terms employed.
    New Subsection 13(b).--Ensuring Deliberation by 
Commissioners. This subsection requires the Commission to 
establish internal procedures to inform Commissioners of a 
reasonable number of options available for resolving a 
proceeding, to provide adequate time for Commissioners to 
deliberate pending orders, and to ensure time for the public to 
read orders before open meetings.
    This subsection is intended to work in coordination with 
subsections (c) and (d) of section 13 of the Communications Act 
to improve deliberations and encourage bipartisan, 
collaborative interaction among the Commissioners. This 
subsection is designed to ensure that Commissioners are 
informed of their options and have sufficient time to review an 
order before being asked to cast a vote. The requirements of 
this subsection might be met, at least in part, by circulating 
an ``options memo'' that is sometimes prepared by staff 
identifying a number of ways an issue might be resolved, the 
benefits and detriments of each option, and how stakeholders 
and the public might view those options based on comments 
received.
    This subsection also requires the Commission to prescribe 
rules for releasing the text of an order before votes are cast 
at an open meeting. This requirement mirrors the layover 
requirement of the House of Representatives that requires bills 
be available and open to the public three days prior to a vote. 
See Rule XII, clause 4(a)(1) of the Rules of the House of 
Representatives, 112th Cong. (Jan. 5, 2011). Notably, 
publishing the text of an item in advance of an open meeting 
should have the salutary effects of allowing stakeholders and 
the public to know exactly what the Commission is voting on, 
and it would also give Commissioners a period of repose to 
reflect on the negotiated product and draft their statements in 
preparation for the open meeting. See Letter from Rep. John D. 
Dingell, Chairman of the Committee on Energy and Commerce, to 
the Honorable Kevin J. Martin, Chairman of the Federal 
Communications Commission (Dec. 3, 2007) (suggesting the 
Commission should provide additional information and time to 
Commissioners so they could properly review orders and rules 
before a vote). Rather than prescribe a deadline, however, this 
subsection requires the FCC to establish its own layover period 
for items on an open meeting agenda. Notably, this subsection 
is not intended to preclude the Commissioners from negotiating 
a different final product at an open meeting nor to prevent 
agency staff from making technical edits to the released item 
before a final version is released after adoption. Nor is this 
subsection intended to trigger another round of public comment. 
The FCC could, for example, prescribe a layover period within 
the seven-day ``sunshine period'' so that the public would have 
the opportunity to read the document without requiring the 
agency to respond to an additional round of comments.
    Once rules for a layover period have been established, the 
agency would simply need to account for them in the run up to 
adoption of an item. If necessary, it could start its 
proceedings and consideration of draft items sooner to ensure 
it has enough time to complete its work in advance of a public 
meeting. Establishing a layover period would have the added 
benefit of avoiding delays in open meetings as the 
Commissioners try to complete negotiations in the waning hours 
before, or sometimes even after, the scheduled start of an open 
meeting. Indeed, in recent years there have been delays of as 
much as 12 hours. This not only plays havoc with the open 
meeting process, it very likely leads to rushed decisions as 
Commissioners try to ``ink'' a deal under the pressure of 
waiting public in the FCC's meeting room.
    At the November 16, 2011, open markup session of the 
Subcommittee on Communications and Technology, a motion by Mr. 
Barton to amend H.R. 3309 to amend this subsection to include 
the phrase ``a reasonable number'' was adopted by voice vote. 
The purpose of the Barton amendment was to clarify that the 
options memorandum created by Commission staff need not cover 
every conceivable option available to the Commission nor even 
every option proposed by stakeholders, but only a reasonable 
number of options that address the question before the 
Commission and could be viably implemented.
    New Subsection 13(c).--Nonpublic Collaborative Discussions. 
This subsection allows a bipartisan majority of Commissioners 
to meet for collaborative discussions if they disclose such 
meetings within two business days and comply with Office of 
General Counsel oversight. This subsection also applies to 
meetings of Federal-State Joint Boards convened under section 
410 of the Communications Act.
    Stakeholders have been calling on Congress to reform the 
Government in the Sunshine Act since at least 1997, when the 
Administrative Conference of the United States and a special 
committee led by Randolph May drafted recommendations to 
Congress to allow agency officials to conduct private meetings 
so long as there were safeguards in place. See Randolph May, 
Reforming the Sunshine Act, 49 Admin. L. Rev. 415 (1997). This 
subsection is intended to do just that. Three or more 
Commissioners may meet in a closed meeting and with members of 
a Federal-State Joint Board so long as the meeting is 
bipartisan, no official action is taken, no outside parties are 
present, and an attorney from the FCC's Office of General 
Counsel is present to monitor the deliberations and disclose a 
summary of those discussion within 2 business days of such a 
meeting.
    New Subsection 13(d).--Initiation of Orders by Bipartisan 
Majority. This subsection requires the Commission to establish 
procedures to allow a bipartisan majority of Commissioners to 
direct staff to draft an order, to put such an order on the 
Commission's agenda, and to require that the Commission vote on 
any order.
    In one sense, the Chairman of the FCC is the agency's Chief 
Executive Officer, but in another the Chairman is but one of 
five Commissioners charged with executing the laws of Congress 
and responding to the mandates of the courts. Over the past 
decade, the Commission has seen clashes between these two roles 
of the Chairman. In 2003, for example, Chairman Michael Powell 
allowed a bipartisan majority of fellow Commissioners to direct 
agency staff to draft the Triennial Review Order even though he 
dissented with many of the findings of that order. See Review 
of the Section 251 Unbundling Obligations of Incumbent Local 
Exchange Carriers et al., CC Docket Nos. 01-338, 96-98, 98-147, 
Report and Order and Order on Remand and Further Notice of 
Proposed Rulemaking, 18 FCC Rcd 16,978 (2003). Conversely, many 
believe that in 2008 there were four votes to move an item 
reforming the high-cost program of the Universal Service Fund, 
but that such an order was not adopted because the then-
Chairman was not among them. Commissioner McDowell has noted 
that a bipartisan majority of Commissioners should have the 
right to initiate items, see FCC Process Reform: Hearing before 
the Subcommittee on Communications and Technology, 112th Cong., 
at 89 (May 13, 2011), and former Commissioner Copps has stated 
that, based on his decade of experience at the Commission, 
``three Commissioners ought to have the ability to put an item 
on the agenda, take an item off the agenda, and edit the 
agenda,'' id.
    This subsection is intended to protect the rights of a 
bipartisan majority of Commissioners and to ensure that the 
rules of the road are established by the Commission before 
another conflict arises. As the General Counsel of NARUC 
testified at the Subcommittee on Communications and 
Technology's June 22, 2011, hearing, ``Having rules in place 
for exactly how this process will work in the future will not 
only streamline the drafting process the next time it occurs, 
it also should be welcomed by FCC staff as a clear guide for 
their fiduciary responsibilities in such circumstances.'' 
Testimony of James Bradford Ramsay on behalf of the National 
Association of Regulatory Utility Commissioners, Reforming FCC 
Process: Hearing before the Subcommittee on Communications and 
Technology, 112th Cong. (June 22, 2011), available at http://
go.usa.gov/Pfj.
    New Subsection 13(e).--Public Review of Reports and Ex 
Partes. This subsection requires the Commission to seek public 
comment on reports and to establish procedures that provide the 
public an opportunity to evaluate ex parte filings before the 
Commission may rely on them in their decisionmaking.
    The FCC has fallen into the practice of relying on 
materials introduced into the docket at the eleventh hour. In 
the days before the record closed on the Commission's October 
2011 reform of the high-cost program of the Universal Service 
Fund, the FCC added to the record 114 new documents as well as 
a statistical analysis of its own. See Filing of the Wireline 
Competition Bureau, WC Docket No. 10-90 et al. (Oct. 19, 2011), 
http://go.usa.gov/Ppz; Filing of the Wireline Competition 
Bureau, WC Docket No. 10-90 et al. (Oct. 17, 2011), http://
go.usa.gov/Ppu; Filing of the Wireline Competition Bureau, WC 
Docket No. 10-90 et al. (Oct. 7, 2011), 
http://go.usa.gov/PpJ. Just four days prior to the close of the 
record in the net neutrality proceeding, the FCC filed nearly 
2,000 pages of articles and analysis into the docket. See 
Filings of the Wireline Competition Bureau, GN Docket No. 09-
191 (Dec. 13, 2010), http://go.usa.gov/Ppy, http://go.usa.gov/
Ppp; Filings of the Wireline Competition Bureau, GN Docket No. 
09-191 (Dec. 10, 2010), http://go.usa.gov/Ppf, http://
go.usa.gov/PpG, http://go.usa.gov/Pp7, http://go.usa.gov/PpA, 
http://go.usa.gov/Ppo, http://go.usa.gov/PpH, http://
go.usa.gov/Pp6, http://go.usa.gov/PpF, http://go.usa.gov/PpL, 
http://go.usa.gov/PpM. And in approving the Comcast-NBC 
Universal transfer of broadcast licenses, the FCC relied on an 
ex parte filing that Comcast had made but one day earlier. See 
Applications of Comcast Corporation, General Electric Company 
and NBC Universal, Inc. for Consent to Assign Licenses and 
Transfer Control of Licenses, MB Docket No. 10-56, Memorandum 
Opinion and Order, 26 FCC Rcd 4238, 4275, para. 92 & n.211 
(adopted Jan. 18, 2011) (citing Letter from Kathy A. Zachem, 
Vice President, Regulatory and State Legislative Affairs for 
Comcast Corporation, to Marlene H. Dortch, Secretary, FCC (Jan. 
17, 2011)). This practice shields the agency from transparency 
and denies the public the opportunity to review and comment on 
all materials in the record of a proceeding.
    The FCC has argued that the records in question in a 
particular instance are public, that the agency adds them to 
the record as a convenience to interested parties, and that 
relying on such late submissions is not a violation of the APA. 
Even if this is true, there would be little to no opportunity 
for anyone to confirm that the documents were public, let alone 
respond to them. Whether such practices violate the APA is also 
not dispositive as to whether they produce good policy, nor 
does it address the problem that they create appearance 
problems and weaken public confidence in the agency.
    Similarly problematic has been the FCC's reliance on its 
own statistical reports to make policy without public input. 
The Commission sometimes relies on its own reports, like the 
Broadband Deployment Report and the Wireless Competition 
Report, see Inquiry Concerning the Deployment of Advanced 
Telecommunications Capability to All Americans in a Reasonable 
and Timely Fashion, and Possible Steps to Accelerate Such 
Deployment Pursuant to Section 706 of the Telecommunications 
Act of 1996, as Amended by the Broadband Data Improvement Act, 
GN Docket Nos. 10-159, Seventh Broadband Progress Report and 
Order on Reconsideration, 26 FCC Rcd 8008 (2011); 
Implementation of Section 6002(b) of the Omnibus Budget 
Reconciliation Act of 1993; Annual Report and Analysis of 
Competitive Market Conditions with Respect to Mobile Wireless, 
Including Commercial Mobile Services, WT Docket No. 10-133, 
Fifteenth Report, 26 FCC Rcd 9664 (2011), but does not subject 
those reports to a robust notice-and-comment process before 
relying on them in rulemakings and adjudications.
    Although Chairman Genachowski has introduced some reforms 
at the agency to improve the ex parte process, see Amendment of 
the Commission's Ex Parte Rules and Other Procedural Rules, GC 
Docket No. 10-43, Report and Order and Further Notice of 
Proposed Rulemaking, 26 FCC Rcd 4517 (2011), those reforms do 
not ensure that the public will be able to review and comment 
on all materials the agency intends to rely on in adopting 
rules or adjudicating a petition or complaint. As stated in 
President Obama's executive order on regulatory reform, 
regulations should include ``to the extent feasible and 
permitted by law, an opportunity for public comment on all 
pertinent parts of the rulemaking docket, including relevant 
scientific and technical findings.'' Exec. Order No. 13563, 76 
Fed. Reg. 3821 (Jan. 21, 2011). This subsection is intended to 
end the FCC's practice of relying on materials, whether those 
materials are generated or added to the docket by the FCC or by 
outside parties, that have not been subject to public scrutiny, 
with exceptions for emergencies. This subsection requires the 
Commission to draft rules to cover such filings, including 
rules that would allow reliance on such filings in the case of 
an emergency, such as a major hurricane or earthquake.
    New Subsection 13(f).--Pending Item Publication. This 
subsection requires the Commission to establish rules regarding 
the publication of the status of open rulemaking proceedings as 
well as a list of the draft items the Commissioners are 
currently considering.
    The Commission currently maintains a list of items on 
circulation as a matter of practice. See FCC, FCC Items on 
Circulation, http://go.usa.gov/PyZ. Stakeholders and other 
members of the public rely on that list to monitor when the 
Commission may act on the rulemaking and other proceedings. But 
that list's utility is limited because it provides no 
information on the status of pending rulemakings until shortly 
before the Commission is set to vote on them. Moreover, no rule 
requires the Commission to maintain that list, meaning that the 
maintenance of the list is wholly within the discretion of the 
Chairman. This subsection is intended to correct these flaws by 
requiring the FCC to conduct an open and transparent rulemaking 
to codify its items on circulation list with additions to shed 
more light on the workings of the FCC.
    New Subsection 13(g).--Shot Clocks. This subsection 
requires the Commission to establish ``shot clocks'' that set 
time frames for Commission action in each type of proceeding it 
oversees.
    The backlog of petitions, applications, and complaints has 
become a major problem at the FCC. As of July 5, 2011, the 
Commission had pending before it 3,472 open proceedings, 26,335 
petitions and requests, 1,385 petitions for reconsideration, 
and 33,233 license applications, not to mention 1,531,893 
unaddressed consumer complaints. See House Energy and Commerce 
Committee, Staff Report on the Workload of the Federal 
Communications Commission, at 1 (Nov. 15, 2011), available at 
http://go.usa.gov/PmJ. Twenty percent, or 5,328, of the 26,335 
petitions and requests pending at the Commission had been there 
for more than two years and, of those, 3,122 have been pending 
for more than five years. Sixty-two percent, or 852, of the 
1,385 pending petitions for reconsideration had been pending at 
the Commission for more than two years, and of these 476 had 
languished for more than five years. Thirteen percent, or 
4,185, of the 33,233 license applications had been pending at 
the Commission for more than two years, and of these 2,246 had 
been there for more than five years. Id. at 1-2.
    Nevertheless, the Commission has made substantial headway 
on its backlog under Chairman Genachowski. This past year, the 
Commission created streamlined procedures for the closing of 
dormant proceedings and closed 999 dockets, about one third of 
the total. Since July 2011, the agency has reduced its two-year 
backlog of petitions by 7 percent to 4,984, its two-year 
backlog of petitions for reconsideration by 28 percent to 617, 
and its two-year backlog of license applications by 9 percent 
to 3,950.
    The American public deserves more transparency, and 
consumers and other stakeholders deserve to know that the 
agency will resolve their complaints and petitions in a timely 
manner no matter the administration. At the Subcommittee on 
Communication and Tecnology's May 13, 2011, hearing, Chairman 
Genachowski noted that ``shot clocks may be an effective tool'' 
for giving parties and the public a sense of when resolution 
would come on an issue. FCC Process Reform: Hearing before the 
Subcommittee on Communications and Technology, 112th Cong., at 
88 (May 13, 2011). Then-Commissioner Copps and Commissioner 
McDowell supported the adoption of additional shot clocks. See 
id. What is more, shot clocks have been effective at the 
Commission. The Commission has resolved 78 percent of petitions 
for reconsideration subject to a 90-day deadline under section 
405 of the Communications Act and received during Chairman 
Genachowski's tenure. See House Energy and Commerce Committee, 
Staff Report on the Workload of the Federal Communications 
Commission, at 1 (Nov. 15, 2011), available at http://
go.usa.gov/PmJ. Similarly, the FCC has an 83-percent success 
rate in meeting the Freedom of Information Act's 20-day 
deadline, a 97-percent success rate in timely responding to 
Telecommunications Relay Service informal complaints, and a 76-
percent success rate in meeting its own 180-day deadline for 
resolving non-streamlined transactions. See id. at 2-3.
    This subsection is intended to build on these successes and 
provide additional transparency to the public by requiring the 
agency to adopt its own shot clocks for resolving the various 
categories of petitions, applications, and complaints before 
it. The Committee expects that the shot clocks adopted by the 
Commission would be in line with both the statutory and 
regulatory shot clocks the agency already has for resolving 
petitions, applications, and complaints, ranging from 45 days, 
see, e.g., 47 C.F.R. Sec. 1.767(i), to 90 days, see, e.g., 47 
U.S.C. Sec. 405(b)(1); 47 C.F.R. Sec. 54.724(a), to 9 months, 
see, e.g., 47 C.F.R. Sec. 20.13(a)(6), to a year or more, see, 
e.g., 47 U.S.C. Sec. 160(c); 47 C.F.R. 
Sec. 64.604(c)(5)(iii)(L)(5); see also House Energy and 
Commerce Committee, Staff Report on the Workload of the Federal 
Communications Commission, Att. Q7 (Nov. 15, 2011) (listing 
various deadlines for action), available at http://go.usa.gov/
PmJ. The Committee expects that the Commission will establish 
shot clocks for all categories of petitions, applications, 
complaints, and other filings, including, for example, 
petitions for rulemakings, petitions for reconsideration, 
applications for equipment authorization, and filings seeking 
action through authority delegated under section 5(c)(1) of the 
Communications Act.
    New Subsection 13(h).--Release of Documents and Reports. 
This subsection requires the Commission to establish a schedule 
for the release of its required reports and to release all 
orders within seven days of adoption. The Commission must 
report to Congress whenever it misses its own deadlines.
    The Committee on Energy and Commerce has long been 
concerned with the practice of the FCC of releasing documents 
days if not weeks after the Commission has formally adopted 
them. In addition to denying the public the ability to promptly 
review commission action, it raises the specter of post-
adoption, pre-release revisions, either on the Commission's own 
motion or at the request of parties. In 1991, then-Chairman of 
the Committee Dingell exchanged letters with the Commission 
revealing that the FCC had delayed the release of an order 
after adoption by 30 days or more 157 times between 1986 and 
1991. See Letter from John D. Dingell, Chairman, Committee on 
Energy and Commerce, to the Honorable Alfred C. Sikes, 
Chairman, Federal Communications Commission (May 21, 1991), 
quoted in FCC Process Reform: Hearing before the Subcommittee 
on Communications and Technology, 112th Cong., at 79-81 (May 
13, 2011). As Chairman Emeritus Dingell has more recently put 
it, this practice ``enables the staff to make revisions to the 
order in the dark of the night,'' ``enables petitioners to seek 
and obtain tweaks in the agency's language,'' and ``afford[s] a 
marvelous opportunity for rascality.'' Id. at 74.
    Chairman Genachowski has improved this process; the average 
time between the adoption and release of an item has been 2.2 
days during his tenure. See House Energy and Commerce 
Committee, Staff Report on the Workload of the Federal 
Communications Commission, at 3 (Nov. 15, 2011), available at 
http://go.usa.gov/PmJ. But problems remain. The Commission 
purportedly adopted its Universal Service Fund Reform Order on 
October 27, but without the layover requirement included in 
Section 13(b) of this bill, there is no way to verify that an 
actual document was before the Commissioners for adoption, and 
the agency did not release a final order until three weeks 
later. Press reports suggest that the size of the order 
ballooned from 400 to 752 pages during that time. See Letter 
from Fred Upton, Chairman, Committee on Energy and Commerce, 
and Greg Walden, Chairman, Subcommittee on Communications and 
Technology, to the Honorable Julius Genachowski, Chairman, 
Federal Communications Commission (Nov. 28, 2011), available at 
http://go.usa.gov/Pv4; Connect America Fund et al., WC Docket 
No. 10-90 et al., Report and Order and Further Notice of 
Proposed Rulemaking, 26 FCC Rcd 17663 (2011). Even if no 
shenanigans actually occurred, the potential creates appearance 
issues that weaken confidence in the agency.
    This subsection is intended to remedy these issues by 
setting a 7-day deadline for the release of orders after 
adoption. This deadline would not affect the validity of any 
decision released after the deadline; instead, the FCC would be 
required to notify its congressional oversight committees about 
the cause for the delay.
    In the same vein, this subsection requires the FCC to 
publish a schedule of regular reports each year and notify its 
congressional oversight committees if it fails to comply with 
that schedule. The timely filing of reports, and especially 
reports to Congress, has been a perpetual problem with the 
Commission in recent years. For example, the Commission 
released its second annual Satellite Competition Report in 
2008, but did not submit its third report (covering 2008, 2009, 
and 2010) until December 2011. See Third Report and Analysis of 
Competitive Market Conditions with Respect to Domestic and 
International Satellite Communications Services; Report and 
Analysis of Competitive Market Conditions with Respect to 
Domestic and International Satellite Communications Services, 
IB Docket Nos. 09-16, 10-99, Third Report, FCC 11-183 (rel. 
Dec. 13, 2011); see also House Energy and Commerce Committee, 
Staff Report on the Workload of the Federal Communications 
Commission, at 3 (Nov. 15, 2011), available at http://
go.usa.gov/PmJ. This requirement is intended to provide 
guidance to the public and Congress about the timing of the 
FCC's release of reports and hold the FCC accountable when it 
fails to keep to that schedule.
    New Subsection 13(i).--Biannual Scorecard. This subsection 
requires the Commission to report every six months regarding 
its progress in meeting its shot clocks and releasing documents 
and reports as well as how it has used administrative law 
judges and independent studies.
    This subsection is intended to keep Congress and the public 
apprised of the Commission's work in complying with the 
requirements of subsections (g) and (h) of section 13 of the 
Communications Act. This subsection is also intended to 
encourage the agency to conduct more independent fact-finding. 
See Philip J. Weiser, FCC Reform and the Future of 
Telecommunications Policy at 18-19 (Jan. 5, 2009), available at 
http://fcc-reform.org/paper/fcc-reform-and-future-
telecommunications-policy.
    New Subsection 13(j).--Transaction Review Standards. This 
subsection preserves the Commission's ability to review 
transactions but requires conditions to be (a) narrowly 
tailored to remedy harms that arise as a direct result of the 
transaction and (b) within the Commission's general authority. 
This subsection applies the same requirements to voluntary 
commitments.
    The FCC has fallen into the practice of leveraging its 
legitimate authority to review transfers of lines under section 
214 of the Communications Act and transfers of licenses under 
sections 309 and 310 of the Communications Act to extract a 
particular commission's wish-list of concessions from transfer 
applicants in exchange for approval, often precisely because 
the commission lacks the record or legal authority to adopt an 
industrywide rule. In the 2008 Sprint/Clearwire Transaction 
Order, for example, the FCC accepted a ``voluntary'' commitment 
from Sprint to forfeit universal service support in high-cost 
areas over a five-year period; the Commission did so not 
because the transaction raised any concern about such support, 
but instead because ``it would be beneficial to control the 
growth of the high-cost fund.'' Sprint Nextel Corporation and 
Clearwire Corporation Applications for Consent to Transfer 
Control of Licenses, Leases, and Authorizations, WT Docket No. 
08-94, File Nos. 0003462540 et al., Memorandum Opinion and 
Order, 23 FCC Rcd 17570, 17612, para. 108 (2008). Similarly, 
the Commission has leveraged its authority to impose conditions 
that may lie outside the Commission's jurisdiction. In the 2011 
Comcast/NBC Universal Transaction Order, for example, the 
Commission accepted a ``voluntary'' commitment from Comcast to 
comply with the net neutrality rules even if a court overturns 
those rules as beyond the Commission's statutory authority. 
Applications of Comcast Corporation, General Electric Company 
and NBC Universal, Inc. for Consent to Assign Licenses and 
Transfer Control of Licenses, MB Docket No. 10-56, Memorandum 
Opinion and Order, 26 FCC Rcd 4238, 4275, para. 94 (2011).
    Open and transparent rulemakings--not adjudications of line 
and license transfers--should be the primary venue for the 
Commission to effect federal policy. Imposing policy through 
transaction review shields the actions of the FCC from public 
scrutiny--as proposed conditions often are unknown to any party 
other than applicants until shortly before the FCC's approval 
order is announced--and from judicial review as well. As Philip 
Weiser, former Senior Adviser for Technology and Innovation to 
President Obama's National Economic Council, has written, this 
practice ``facilitates the agency's tendency to make decisions 
in an ad hoc manner,'' and lets the FCC ``use[] such 
proceedings to decide issues that are otherwise pending in 
industry rulemakings--leading to one set of rules for those who 
have merged and another set of rules for similarly situated 
parties who have not.'' Philip J. Weiser, FCC Reform and the 
Future of Telecommunications Policy at 24 (Jan. 5, 2009), 
available at http://fcc-reform.org/paper/fcc-reform-and-future-
telecommunications-policy. Chairman Emeritus Dingell has also 
criticized the FCC's practice of ``identifying some potential 
competitive harm to the public and then on that basis 
proceeding to extract concessions from the parties, usually 
concessions which have absolutely nothing to do with the 
transaction itself.'' The Telecommunications Act of 2000: 
Hearing before the Subcommittee on Telecommunications, Trade, 
and Consumer Protection, 106th Cong., at 7 (Mar. 14, 2000). As 
he put it, transaction reviews at the FCC have become a 
``remarkable exercise in arrogance, and the behavior of the 
Commission, ofttimes by reason of delay and other matters, 
approaches what might well be defined as not just arrogance but 
extortion.'' Id. at 6.
    This subsection is intended to end this practice by 
requiring the FCC to narrowly tailor any conditions it imposes 
or voluntary commitments it accepts to address the particular 
harm caused by a transfer of lines or licenses. Such a 
requirement follows the recommendation of Chairman Emeritus 
Dingell that the FCC should establish ``a clear nexus between 
the conditions placed on the merger and the predicted 
detrimental effects of the transaction.'' Id. at 7. 
Furthermore, this subsection requires that any conditions 
imposed and voluntary commitments accepted must be within the 
Commission's non-transaction-related jurisdiction. For example, 
if a court holds that the Commission has no authority to impose 
broadcast flag rules, see Am. Library Ass'n v. FCC, 406 F.3d 
689 (D.C. Circuit 2005), the Commission should not be able to 
skirt that ruling through transaction review. So, too, for 
conditions and voluntary commitments involving the FCC's 
authority over the Internet.
    Contrary to the criticisms by opponents to the bill, this 
subsection does not alter the public-interest standard that the 
Commission ultimately uses to decide whether a transfer of 
lines or licenses merits approval. The Commission may continue 
to adopt conditions and accept voluntary commitments that 
directly address harms presented by a transfer of lines or 
licenses in a narrowly tailored fashion. And the Commission may 
deny a transfer of lines or licenses if it determines that the 
public interest would not be served by approving the proposed 
transfer.
    New Subsection 13(k).--Access to Budget Information. This 
subsection requires the Commission to provide direct access 
from the homepage of its website to budget, appropriations, and 
performance information.
    At the November 16, 2011, open markup session of the 
Subcommittee on Communications and Technology, a motion by Rep. 
Stearns to amend H.R. 3309 to incorporate this subsection was 
adopted by voice vote. The amendment is intended to increase 
the transparency of the budgetary process as applied to the 
Commission each year.
    New Subsection 13(l).--Federal Register Publication. This 
subsection requires the Commission to complete all actions 
necessary to publish in the Federal Register documents required 
to be so published within 45 days of adoption.
    At the March 6, 2012, open markup session of the Committee 
on Energy and Commerce, a motion by Rep. Kinzinger to amend 
H.R. 3309 to incorporate this subsection was adopted by voice 
vote. The amendment seeks to ensure expeditious review of FCC 
decisions by the courts and Congress. Judicial review of 
rulemakings is tied to the date of publication of a regulation 
in the Federal Register. See 47 U.S.C. Sec. 402; 47 C.F.R. 
Sec. 1.4(b)(1). So, too, is congressional review under the 
Congressional Review Act. See 5 U.S.C. Sec. 801-802.
    Normally, the Commission publishes rulemaking orders in the 
Federal Register relatively quickly. During Chairman 
Genachowski's tenure, for example, the average time between the 
adoption of an item and its publication in the Federal Register 
was 37.3 days as of mid-2011. See House Energy and Commerce 
Committee, Staff Report on the Workload of the Federal 
Communications Commission, at 3 (Nov. 15, 2011), available at 
http://go.usa.gov/PmJ.
    But the Commission has not always been so prompt. Although 
the FCC adopted its Third CableCARD Order on October 14, 2010, 
it did not publish that order in the Federal Register until 
July 8, 2011--267 days later. See Implementation of Section 304 
of the Telecommunications Act of 1996: Commercial Availability 
of Navigation Devices; Compatibility Between Cable Systems and 
Consumer Electronics Equipment, 76 Fed. Reg. 40263 (July 8, 
2011) (publishing Implementation of Section 304 of the 
Telecommunications Act of 1996, et al., CS Docket No. 97-80, PP 
Docket No. 00-67, File Nos. EB-07-SE-351, EB-07-SE-352, NAL/
Acct. Nos. 832100074, 200932100001, 200932100002, 200932100003, 
200932100008, 200932100022, and 200932100023, FRN Nos. 
0018049841, 0016034050, CSR-8080-Z, Third Report and Order and 
Order on Reconsideration, 25 FCC Rcd 14657 (2010)). Similarly, 
the FCC adopted its net neutrality rules on December 21, 2010, 
but it did not publish that order in the Federal Register until 
September 23, 2011--276 days later. See Preserving the Open 
Internet, 76 Fed. Reg. 59192 (Sept. 23, 2011) (publishing 
Preserving the Open Internet; Broadband Industry Practices, GN 
Docket No. 09-191, WC Docket No. 07-52, Report and Order, 25 
FCC Rcd 17905 (2010)). Nothing in law prevents the Commission 
from submitting orders to the Federal Register for publication 
immediately after they are adopted, but in both of these cases 
the FCC chose to delay publication until it completed the 
Paperwork Reduction Act process, which requires action by the 
Office of Management and Budget. See 44 U.S.C. Sec. 3501 et al. 
As a result of these decisions, review of Commission action in 
the courts and in the Congress was delayed by the better part 
of a year. Subsection 13(l) prevents such delays going forward 
by requiring the FCC to submit rulemaking documents for Federal 
Register publication within 45 days of releasing the document 
to the public.
    New Subsection 13(m).--Consumer Complaint Database. This 
subsection requires the Commission to publish an online 
database of information about consumer complaints.
    At the March 6, 2012, open markup session of the Committee 
on Energy and Commerce, a motion by Rep. Waxman to amend H.R. 
3309 to incorporate this subsection was adopted by voice vote. 
The amendment seeks to improve the transparency of the FCC's 
consumer complaint process by requiring the Commission, as it 
processes consumer complaints, to enter metadata about such 
complaints into an online, searchable database. Metadata should 
include, for example, the date of the filing of the complaint, 
the general topic of the complaint, and the name of the party 
complained of. The subsection is not intended to require the 
FCC to place the text of consumer complaints online, nor the 
name of the complainant, nor any interim determinations as to 
the validity of the complaint in the database; although, the 
FCC retains the discretion to place any additional information 
in the database if it makes a public-interest finding. The 
subsection also allows the FCC to consolidate duplicative 
complaints arising from the same alleged misconduct (such as 
complaints arising from the same broadcast against a single 
broadcaster).
    New Subsection 13(n).--Online Publication. This subsection 
requires the Commission to publish the documents and reports 
specified in this section on the Commission's website. This 
subsection also requires the Commission to issue rules 
establishing procedures to redact documents for safety, law 
enforcement, and security purposes and to protect proprietary 
or confidential information.
    New Subsection 13(o).--Definitions. This subsection defines 
several terms used in the Act. This subsection is intended to 
provide precedent-based guidance for the FCC's interpretation 
of these and other terms in the Act. To the extent that the 
meaning of any term defined in this subsection or used in new 
section 13 is ambiguous after exhausting the traditional canons 
of statutory construction, it is expected that courts will 
defer to reasonable interpretations of the FCC of such terms. 
See Chevron U.S.A., Inc. v. Natural Resources Defense Council, 
Inc., 467 U.S. 837 (1984).
    The definition of ``bipartisan majority'' includes specific 
protections for Commissioners that are not members of the 
majority party within the FCC, including Commissioners with no 
political party affiliation.
    The term ``economically significant impact'' is drawn from 
section 3(f)(1) of Executive Order 12866, which defined 
economically significant regulatory action for purposes of the 
centralized review of regulations conducted by the Office of 
Information and Regulatory Affairs. See Exec. Order No. 12866, 
58 Fed. Reg. 51735 (Oct. 4, 1993).
    The term ``performance measure'' includes either ``outcome 
measures'' or ``output measures,'' both of which are defined in 
the Government Performance and Results Act of 1993. Performance 
measures must be both objective, meaning a third party with 
access to the same data as the Commission should be able to 
replicate the calculations used by the Commission to arrive at 
the same measure of performance, and quantifiable, meaning 
capable of being expressed numerically.
    The term ``program activity'' includes all program 
activities of the FCC as defined in the Government Performance 
and Results Act of 1993. The subsection expands the definition 
of program activity in order to include large FCC programs, 
like the Universal Service Fund and the Interstate 
Telecommunications Relay Service Fund, that collect or 
distribute more than $100 million annually. For program 
activities that both collect and distribute more than $100 
million each year, the Commission should create one set of 
performance measures for the collection mechanism and another 
set for the distribution mechanism.

Section 2(b)

    Section 2(b) establishes the effective date of new 
reporting obligations to be 2013 and the effective date of the 
remainder of new section 13 to be six months after enactment. 
The section grandfathers NPRMs issued prior to enactment, 
treating them as if they were issued in compliance with 
paragraph (1) of section 13(a) of the Communications Act and 
modifying the logical-outgrowth test of paragraph 2(A) of 
section 13(a) to apply to the entire Notice, not just the text 
of the proposed rules. This grandfathering, however, does not 
relieve the Commission of any other rulemaking obligations, 
such as the requirement that the order adopting rules come 
within three years of the NPRM.
    This section also requires the Commission to conduct a 
rulemaking to implement new section 13--and specifically 
subsections (b), (d), (e)(1)(B), (f), (g), and (n)(2)--within 
one year of enactment. The section requires that the Commission 
comply with the rulemaking reforms of section 13 of the 
Communications Act, including the requirement of publishing the 
text of proposed rules and the minimum comment period 
requirement.

Section 3

    Section 3 prohibits the Commission from categorizing a 
complaint or inquiry about the Telephone Consumer Protection 
Act of 1991, as amended (TCPA), as a wireless or wireline 
complaint in its quarterly reports unless a wireless or 
wireline provider was the subject of the inquiry or complaint. 
The Commission could comply with this section by, for example, 
setting forth all TCPA complaints and inquiries as a separate 
section in all quarterly reports issued after the enactment of 
H.R. 3309.
    At the March 6, 2012, open markup session of the Committee 
on Energy and Commerce, a motion by Rep. Pompeo to amend H.R. 
3309 to incorporate this section was adopted by voice vote. The 
amendment seeks to correct the Commission's long-standing 
practice of categorizing consumer complaints and inquiries 
associated with the TCPA under the headings of ``Wireline 
Telecommunications'' and ``Wireless Telecommunications.'' 
Consumer complaints and inquiries that do not involve the TCPA 
typically target an action by the consumer's service provider, 
like an issue with wireless coverage. In contrast, TCPA 
complaints and inquiries very rarely target the service 
provider; instead, the vast majority of TCPA complaints and 
inquiries involve third parties outside the control of the 
service provider, such as telemarketers, that use the telephone 
system to place unwanted calls to consumers. The FCC's practice 
of attributing TCPA complaints to ``Wireline 
Telecommunications'' and ``Wireless Telecommunications'' based 
on the type of telephone used by a consumer misleads the public 
and other governmental agencies into believing that complaints 
and inquiries about the conduct of wireless and wireline 
service providers is much larger than it actually is. For 
example, in its compilation of consumer inquiries from the 
second quarter of 2011, the FCC states that there were 5,908 
consumer inquiries regarding ``Wireline Telecommunications,'' 
even though 3,759 inquiries--64 percent--were inquiries 
regarding the TCPA. See FCC, Quarterly Report of Informal 
Consumer Inquiries and Complaints for the Second Quarter of 
Calendar Year 2011 Released (Jan. 18, 2012), available at 
http://go.usa.gov/PyD. The wireline and wireless industries 
have attempted to bring this matter to the attention of the 
Commission on multiple occasions, under several Chairmen, and 
yet the Commission has failed to correct the problem, 
necessitating congressional direction to do so.

Section 4

    Section 4 specifies that the Act does not relieve the FCC 
of the obligations established by the APA and related laws 
except where it does so explicitly (i.e., with regard to 
allowing deliberative collaboration among Commissioners and on 
the Federal-State Joint Boards). The APA provides a foundation 
for agency action; H.R. 3309 builds upon that foundation to 
guide the agency toward greater openness and transparency.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

                       COMMUNICATIONS ACT OF 1934


TITLE I--GENERAL PROVISIONS

           *       *       *       *       *       *       *


SEC. 13. TRANSPARENCY AND EFFICIENCY.

  (a) Rulemaking Requirements.--
          (1) Requirements for notices of proposed 
        rulemaking.--The Commission may not issue a notice of 
        proposed rulemaking unless the Commission provides for 
        a period of not less than 30 days for the submission of 
        comments and an additional period of not less than 30 
        days for the submission of reply comments on such 
        notice and the Commission includes in such notice the 
        following:
                  (A) Either--
                          (i) an identification of--
                                  (I) a notice of inquiry, a 
                                prior notice of proposed 
                                rulemaking, or a notice on a 
                                petition for rulemaking issued 
                                by the Commission during the 3-
                                year period preceding the 
                                issuance of the notice of 
                                proposed rulemaking concerned 
                                and of which such notice is a 
                                logical outgrowth; or
                                  (II) an order of a court 
                                reviewing action by the 
                                Commission or otherwise 
                                directing the Commission to act 
                                that was issued by the court 
                                during the 3-year period 
                                preceding the issuance of the 
                                notice of proposed rulemaking 
                                concerned and in response to 
                                which such notice is being 
                                issued; or
                          (ii) a finding (together with a brief 
                        statement of reasons therefor)--
                                  (I) that the proposed rule or 
                                the proposed amendment of an 
                                existing rule will not impose 
                                additional burdens on industry 
                                or consumers; or
                                  (II) for good cause, that a 
                                notice of inquiry is 
                                impracticable, unnecessary, or 
                                contrary to the public 
                                interest.
                  (B) The specific language of the proposed 
                rule or the proposed amendment of an existing 
                rule.
                  (C) In the case of a proposal to create a 
                program activity, proposed performance measures 
                for evaluating the effectiveness of the program 
                activity.
                  (D) In the case of a proposal to 
                substantially change a program activity--
                          (i) proposed performance measures for 
                        evaluating the effectiveness of the 
                        program activity as proposed to be 
                        changed; or
                          (ii) a proposed finding that existing 
                        performance measures will effectively 
                        evaluate the program activity as 
                        proposed to be changed.
          (2) Requirements for rules.--Except as provided in 
        the 3rd sentence of section 553(b) of title 5, United 
        States Code, the Commission may not adopt or amend a 
        rule unless--
                  (A) the specific language of the adopted rule 
                or the amendment of an existing rule is a 
                logical outgrowth of the specific language of a 
                proposed rule or a proposed amendment of an 
                existing rule included in a notice of proposed 
                rulemaking, as described in subparagraph (B) of 
                paragraph (1);
                  (B) such notice of proposed rulemaking--
                          (i) was issued in compliance with 
                        such paragraph and during the 3-year 
                        period preceding the adoption of the 
                        rule or the amendment of an existing 
                        rule; and
                          (ii) is identified in the order 
                        making the adoption or amendment;
                  (C) in the case of the adoption of a rule or 
                the amendment of an existing rule that may have 
                an economically significant impact, the order 
                contains--
                          (i) an identification and analysis of 
                        the specific market failure, actual 
                        consumer harm, burden of existing 
                        regulation, or failure of public 
                        institutions that warrants the adoption 
                        or amendment; and
                          (ii) a reasoned determination that 
                        the benefits of the adopted rule or the 
                        amendment of an existing rule justify 
                        its costs (recognizing that some 
                        benefits and costs are difficult to 
                        quantify), taking into account 
                        alternative forms of regulation and the 
                        need to tailor regulation to impose the 
                        least burden on society, consistent 
                        with obtaining regulatory objectives;
                  (D) in the case of the adoption of a rule or 
                the amendment of an existing rule that creates 
                a program activity, the order contains 
                performance measures for evaluating the 
                effectiveness of the program activity; and
                  (E) in the case of the adoption of a rule or 
                the amendment of an existing rule that 
                substantially changes a program activity, the 
                order contains--
                          (i) performance measures for 
                        evaluating the effectiveness of the 
                        program activity as changed; or
                          (ii) a finding that existing 
                        performance measures will effectively 
                        evaluate the program activity as 
                        changed.
          (3) Data for performance measures.--The Commission 
        shall develop a performance measure or proposed 
        performance measure required by this subsection to 
        rely, where possible, on data already collected by the 
        Commission.
  (b) Adequate Deliberation by Commissioners.--The Commission 
shall by rule establish procedures for--
          (1) informing all Commissioners of a reasonable 
        number of options available to the Commission for 
        resolving a petition, complaint, application, 
        rulemaking, or other proceeding;
          (2) ensuring that all Commissioners have adequate 
        time, prior to being required to decide a petition, 
        complaint, application, rulemaking, or other proceeding 
        (including at a meeting held pursuant to section 5(d)), 
        to review the proposed Commission decision document, 
        including the specific language of any proposed rule or 
        any proposed amendment of an existing rule; and
          (3) publishing the text of agenda items to be voted 
        on at an open meeting in advance of such meeting so 
        that the public has the opportunity to read the text 
        before a vote is taken.
  (c) Nonpublic Collaborative Discussions.--
          (1) In general.--Notwithstanding section 552b of 
        title 5, United States Code, a bipartisan majority of 
        Commissioners may hold a meeting that is closed to the 
        public to discuss official business if--
                  (A) a vote or any other agency action is not 
                taken at such meeting;
                  (B) each person present at such meeting is a 
                Commissioner, an employee of the Commission, a 
                member of a joint board established under 
                section 410, or a person on the staff of such a 
                joint board; and
                  (C) an attorney from the Office of General 
                Counsel of the Commission is present at such 
                meeting.
          (2) Disclosure of nonpublic collaborative 
        discussions.--Not later than 2 business days after the 
        conclusion of a meeting held under paragraph (1), the 
        Commission shall publish a disclosure of such meeting, 
        including--
                  (A) a list of the persons who attended such 
                meeting; and
                  (B) a summary of the matters discussed at 
                such meeting, except for such matters as the 
                Commission determines may be withheld under 
                section 552b(c) of title 5, United States Code.
          (3) Preservation of open meetings requirements for 
        agency action.--Nothing in this subsection shall limit 
        the applicability of section 552b of title 5, United 
        States Code, with respect to a meeting of Commissioners 
        other than that described in paragraph (1).
  (d) Initiation of Items by Bipartisan Majority.--The 
Commission shall by rule establish procedures for allowing a 
bipartisan majority of Commissioners to--
          (1) direct Commission staff to draft an order, 
        decision, report, or action for review by the 
        Commission;
          (2) require Commission approval of an order, 
        decision, report, or action with respect to a function 
        of the Commission delegated under section 5(c)(1); and
          (3) place an order, decision, report, or action on 
        the agenda of an open meeting.
  (e) Public Review of Certain Reports and Ex Parte 
Communications.--
          (1) In general.--Except as provided in paragraph (2), 
        the Commission may not rely, in any order, decision, 
        report, or action, on--
                  (A) a statistical report or report to 
                Congress, unless the Commission has published 
                and made such report available for comment for 
                not less than a 30-day period prior to the 
                adoption of such order, decision, report, or 
                action; or
                  (B) an ex parte communication or any filing 
                with the Commission, unless the public has been 
                afforded adequate notice of and opportunity to 
                respond to such communication or filing, in 
                accordance with procedures to be established by 
                the Commission by rule.
          (2) Exception.--Paragraph (1) does not apply when the 
        Commission for good cause finds (and incorporates the 
        finding and a brief statement of reasons therefor in 
        the order, decision, report, or action) that 
        publication or availability of a report under 
        subparagraph (A) of such paragraph or notice of and 
        opportunity to respond to an ex parte communication 
        under subparagraph (B) of such paragraph are 
        impracticable, unnecessary, or contrary to the public 
        interest.
  (f) Publication of Status of Certain Proceedings and Items.--
The Commission shall by rule establish procedures for 
publishing the status of all open rulemaking proceedings and 
all proposed orders, decisions, reports, or actions on 
circulation for review by the Commissioners, including which 
Commissioners have not cast a vote on an order, decision, 
report, or action that has been on circulation for more than 60 
days.
  (g) Deadlines for Action.--The Commission shall by rule 
establish deadlines for any Commission order, decision, report, 
or action for each of the various categories of petitions, 
applications, complaints, and other filings seeking Commission 
action, including filings seeking action through authority 
delegated under section 5(c)(1).
  (h) Prompt Release of Certain Reports and Decision 
Documents.--
          (1) Statistical reports and reports to congress.--
                  (A) Release schedule.--Not later than January 
                15th of each year, the Commission shall 
                identify, catalog, and publish an anticipated 
                release schedule for all statistical reports 
                and reports to Congress that are regularly or 
                intermittently released by the Commission and 
                will be released during such year.
                  (B) Publication deadlines.--The Commission 
                shall publish each report identified in a 
                schedule published under subparagraph (A) not 
                later than the date indicated in such schedule 
                for the anticipated release of such report.
          (2) Decision documents.--The Commission shall publish 
        each order, decision, report, or action not later than 
        7 days after the date of the adoption of such order, 
        decision, report, or action.
          (3) Effect if deadlines not met.--
                  (A) Notification of congress.--If the 
                Commission fails to publish an order, decision, 
                report, or action by a deadline described in 
                paragraph (1)(B) or (2), the Commission shall, 
                not later than 7 days after such deadline and 
                every 14 days thereafter until the publication 
                of the order, decision, report, or action, 
                notify by letter the chairpersons and ranking 
                members of the Committee on Energy and Commerce 
                of the House of Representatives and the 
                Committee on Commerce, Science, and 
                Transportation of the Senate. Such letter shall 
                identify such order, decision, report, or 
                action, specify the deadline, and describe the 
                reason for the delay. The Commission shall 
                publish such letter.
                  (B) No impact on effectiveness.--The failure 
                of the Commission to publish an order, 
                decision, report, or action by a deadline 
                described in paragraph (1)(B) or (2) shall not 
                render such order, decision, report, or action 
                ineffective when published.
  (i) Biannual Scorecard Reports.--
          (1) In general.--For the 6-month period beginning on 
        January 1st of each year and the 6-month period 
        beginning on July 1st of each year, the Commission 
        shall prepare a report on the performance of the 
        Commission in conducting its proceedings and meeting 
        the deadlines established under subsections (g), 
        (h)(1)(B), and (h)(2).
          (2) Contents.--Each report required by paragraph (1) 
        shall contain detailed statistics on such performance, 
        including, with respect to each Bureau of the 
        Commission--
                  (A) in the case of performance in meeting the 
                deadlines established under subsection (g), 
                with respect to each category established under 
                such subsection--
                          (i) the number of petitions, 
                        applications, complaints, and other 
                        filings seeking Commission action that 
                        were pending on the last day of the 
                        period covered by such report;
                          (ii) the number of filings described 
                        in clause (i) that were not resolved by 
                        the deadlines established under such 
                        subsection and the average length of 
                        time such filings have been pending; 
                        and
                          (iii) for petitions, applications, 
                        complaints, and other filings seeking 
                        Commission action that were resolved 
                        during such period, the average time 
                        between initiation and resolution and 
                        the percentage resolved by the 
                        deadlines established under such 
                        subsection;
                  (B) in the case of proceedings before an 
                administrative law judge--
                          (i) the number of such proceedings 
                        completed during such period; and
                          (ii) the number of such proceedings 
                        pending on the last day of such period; 
                        and
                  (C) the number of independent studies or 
                analyses published by the Commission during 
                such period.
          (3) Publication and submission.--The Commission shall 
        publish and submit to the Committee on Energy and 
        Commerce of the House of Representatives and the 
        Committee on Commerce, Science, and Transportation of 
        the Senate each report required by paragraph (1) not 
        later than the date that is 30 days after the last day 
        of the period covered by such report.
  (j) Transaction Review Standards.--
          (1) In general.--The Commission shall condition its 
        approval of a transfer of lines, a transfer of 
        licenses, or any other transaction under section 214, 
        309, or 310 or any other provision of this Act only 
        if--
                  (A) the imposed condition is narrowly 
                tailored to remedy a harm that arises as a 
                direct result of the specific transfer or 
                specific transaction that this Act empowers the 
                Commission to review; and
                  (B) the Commission could impose a similar 
                requirement under the authority of a specific 
                provision of law other than a provision 
                empowering the Commission to review a transfer 
                of lines, a transfer of licenses, or other 
                transaction.
          (2) Exclusions.--In reviewing a transfer of lines, a 
        transfer of licenses, or any other transaction under 
        section 214, 309, or 310 or any other provision of this 
        Act, the Commission may not consider a voluntary 
        commitment of a party to such transfer or transaction 
        unless the Commission could adopt that voluntary 
        commitment as a condition under paragraph (1).
  (k) Access to Certain Information on Commission's Website.--
The Commission shall provide direct access from the homepage of 
its website to--
          (1) detailed information regarding--
                  (A) the budget of the Commission for the 
                current fiscal year;
                  (B) the appropriations for the Commission for 
                such fiscal year; and
                  (C) the total number of full-time equivalent 
                employees of the Commission; and
          (2) the performance plan most recently made available 
        by the Commission under section 1115(b) of title 31, 
        United States Code.
  (l) Federal Register Publication.--
          (1) In general.--In the case of any document adopted 
        by the Commission that the Commission is required, 
        under any provision of law, to publish in the Federal 
        Register, the Commission shall, not later than the date 
        described in paragraph (2), complete all Commission 
        actions necessary for such document to be so published.
          (2) Date described.--The date described in this 
        paragraph is the earlier of--
                  (A) the day that is 45 days after the date of 
                the release of the document; or
                  (B) the day by which such actions must be 
                completed to comply with any deadline under any 
                other provision of law.
          (3) No effect on deadlines for publication in other 
        form.--In the case of a deadline that does not specify 
        that the form of publication is publication in the 
        Federal Register, the Commission may comply with such 
        deadline by publishing the document in another form. 
        Such other form of publication does not relieve the 
        Commission of any Federal Register publication 
        requirement applicable to such document, including the 
        requirement of paragraph (1).
  (m) Consumer Complaint Database.--
          (1) In general.--In evaluating and processing 
        consumer complaints, the Commission shall present 
        information about such complaints in a publicly 
        available, searchable database on its website that--
                  (A) facilitates easy use by consumers; and
                  (B) to the extent practicable, is sortable 
                and accessible by--
                          (i) the date of the filing of the 
                        complaint;
                          (ii) the topic of the complaint;
                          (iii) the party complained of; and
                          (iv) other elements that the 
                        Commission considers in the public 
                        interest.
          (2) Duplicative complaints.--In the case of multiple 
        complaints arising from the same alleged misconduct, 
        the Commission shall be required to include only 
        information concerning one such complaint in the 
        database described in paragraph (1).
  (n) Form of Publication.--
          (1) In general.--In complying with a requirement of 
        this section to publish a document, the Commission 
        shall publish such document on its website, in addition 
        to publishing such document in any other form that the 
        Commission is required to use or is permitted to and 
        chooses to use.
          (2) Exception.--The Commission shall by rule 
        establish procedures for redacting documents required 
        to be published by this section so that the published 
        versions of such documents do not contain--
                  (A) information the publication of which 
                would be detrimental to national security, 
                homeland security, law enforcement, or public 
                safety; or
                  (B) information that is proprietary or 
                confidential.
  (o) Definitions.--In this section:
          (1) Amendment.--The term ``amendment'' includes, when 
        used with respect to an existing rule, the deletion of 
        such rule.
          (2) Bipartisan majority.--The term ``bipartisan 
        majority'' means, when used with respect to a group of 
        Commissioners, that such group--
                  (A) is a group of 3 or more Commissioners; 
                and
                  (B) includes, for each political party of 
                which any Commissioner is a member, at least 1 
                Commissioner who is a member of such political 
                party, and, if any Commissioner has no 
                political party affiliation, at least 1 
                unaffiliated Commissioner.
          (3) Economically significant impact.--The term 
        ``economically significant impact'' means an effect on 
        the economy of $100,000,000 or more annually or a 
        material adverse effect on the economy, a sector of the 
        economy, productivity, competition, jobs, the 
        environment, public health or safety, or State, local, 
        or tribal governments or communities.
          (4) Performance measure.--The term ``performance 
        measure'' means an objective and quantifiable outcome 
        measure or output measure (as such terms are defined in 
        section 1115 of title 31, United States Code).
          (5) Program activity.--The term ``program activity'' 
        has the meaning given such term in section 1115 of 
        title 31, United States Code, except that such term 
        also includes any annual collection or distribution or 
        related series of collections or distributions by the 
        Commission of an amount that is greater than or equal 
        to $100,000,000.
          (6) Other definitions.--The terms ``agency action'', 
        ``ex parte communication'', and ``rule'' have the 
        meanings given such terms in section 551 of title 5, 
        United States Code.

           *       *       *       *       *       *       *


                            DISSENTING VIEWS

    We oppose H.R. 3309, the Federal Communications Commission 
(FCC) Process Reform Act of 2011, as reported. This legislation 
will fundamentally alter FCC authority to protect consumers and 
ensure a competitive marketplace, while tying the agency up 
with unique statutory process requirements that apply to the 
FCC alone. This bill represents a dramatic departure from 
standard administrative practice and procedure and should not 
be enacted into law.

The FCC should not be subject to burdensome new regulatory requirements

    A key reason the Administrative Procedure Act (APA) has 
been an important and successful bedrock of regulatory law is 
that it applies uniformly across federal agencies. Uniformity 
in regulatory process allows the public and interested 
stakeholders to follow a common set of rules that apply 
generally to agency conduct, regardless of the area of 
regulation. Although rules are not identical across all 
agencies, the APA has encouraged the development of a standard 
body of case law that provides for certainty and reduces 
transaction costs. By moving the FCC away from existing APA 
precedents and future developments, H.R. 3309 could create 
uncertainty, confusion, and additional work for consumers, 
regulated entities, the FCC, and the courts.
    Specifically, H.R. 3309 contains numerous new and untested 
terms that could take years for the FCC and reviewing courts to 
interpret and implement. Under this legislation the FCC would 
be required to figure out what constitutes a ``burden on 
industry or consumers,'' determine whether a notice of inquiry 
is ``impracticable, unnecessary, or contrary to the public 
interest,'' define ``actual consumer harm'' and ``specific 
market failure,'' and decide what it means to ensure that all 
Commissioners have ``adequate time, prior to being required to 
decide a petition, complaint, application rulemaking or other 
proceeding.''
    Notwithstanding the agency's best efforts to apply these 
terms precisely and fairly, each presents a novel legal issue 
that will likely be challenged by industry or other interested 
stakeholders when they disagree with a particular Commission 
decision. Moreover, each of these challenges could take years 
of expensive litigation to clarify and resolve. With the FCC 
stymied by uncertainty and unique court challenges, H.R. 3309 
would make the FCC less effective, agile, and transparent. 
According to administrative law experts interviewed by 
committee staff, the new procedural terms and definitions 
imposed by this legislation could take 15 years to be resolved.
    In addition, H.R. 3309 creates a unique avenue for appeal 
by parties unsatisfied with FCC results. Cost-benefit reviews 
currently conducted pursuant to Executive Order 13579 are not 
reviewable in court. Under H.R. 3309, however, the FCC's cost-
benefit analyses would now be subject to court challenges. The 
impact of this provision is particularly acute with regard to 
``values-based'' actions, in which the cost and benefit of 
rules may be difficult to quantify, yet subject to court 
challenge. For example, regulation of indecent broadcast 
programming or public safety requirements such as 911 rules may 
be difficult to justify through a cost-benefit analysis since 
the benefits of such rules might be difficult to quantify. 
Unlike any other independent agency, the FCC's cost-benefit 
analysis in these areas could be basis for court reversal under 
H.R. 3309.
    Notably, FCC Chairman Genachowski has already taken 
significant steps to remedy many of the process problems 
identified by the bill's sponsors. Under Chairman Genachowski's 
leadership, the FCC has closed 999 dormant dockets, removed 210 
obsolete regulations, drastically reduced the number of pending 
applications, launched new initiatives to streamline data 
collection processes, and taken steps to increase transparency 
and stakeholder participation.\1\ He has also reformed the ex 
parte rules to require more information and disclosure.\2\ 
Chairman Genachowski's announcement last November detailing the 
agency's efforts to comply with Executive Order 13579 is 
another indication that the FCC is committed to operating 
efficiently and effectively, with due consideration of the 
costs and benefits of its regulations.\3\
---------------------------------------------------------------------------
    \1\Federal Communications Commission, Remarks as Prepared for 
Delivery by FCC Chairman Julius Genachowski at Georgetown University 
(Nov. 7, 2011) (online at http://transition.fcc.gov/Daily_Releases/
Daily_Business/2011/db1107/DOC-310876A1.pdf).
    \2\House Committee on Energy and Commerce, Subcommittee on 
Communications and Technology, Hearing on Reforming FCC Process, 112th 
Cong. (June 22, 2011) (testimony of Julius Genachowski) (online at 
http://democrats.energycommerce.house.gov/sites/default/files/image_ 
uploads/Testimony_CT_05.13.11_Genachowski.pdf).
    \3\Federal Communications Commission, Preliminary Plan for 
Retrospective Analysis of Existing Rules (Nov. 7, 2011) (online at 
http://transition.fcc.gov/Daily_Releases/Daily_Business/2011/db1107/
DOC-318074A1.pdf).

---------------------------------------------------------------------------
H.R. 3309 fundamentally alters FCC authority to review transactions

    H.R. 3309 requires any condition imposed by the FCC as part 
of the agency's transaction review process to be ``narrowly 
tailored to remedy a harm that arises as a direct result of the 
specific transfer or specific transaction.'' It also requires 
the FCC to demonstrate that the agency could impose ``a similar 
requirement under the authority of a specific provision of 
law'' other than its general power to review transfers of 
control. The same requirements are imposed on the FCC's 
acceptance of any voluntary commitments.\4\
---------------------------------------------------------------------------
    \4\See, e.g., H.R. 3309, proposed Sec. 13(j) to the Communications 
Act of 1934.
---------------------------------------------------------------------------
    Under current law, the FCC has a broad charge under 
sections 214 and 310 of the Communications Act to review 
transactions based on a public interest standard. Indeed, under 
section 310(d), the FCC must find affirmatively that a 
transaction reviewed by the agency benefits the broader public 
interest. The FCC's responsibility to protect the public 
interest means the agency must take a broader perspective than 
the Department of Justice and the Federal Trade Commission, 
which are charged with protecting the public against 
competitive harm under the Clayton Act.
    Conditions imposed as part of the FCC's transaction review 
are sometimes necessary to produce public interest benefits 
that offset competitive or consumer harms in order to secure 
Commission approval. Parties engaged in a proposed transaction 
often volunteer to adhere to such conditions because they 
recognize that the transaction may not yield sufficient public 
interest benefits without them or may even harm the public. 
Examples of such conditions include commitments regarding 
employment levels (e.g., AT&T's 2006 acquisition of Bellsouth 
included a promise to repatriate 3,000 jobs) and consumer 
pricing (e.g., FCC approval of the XM-Sirius satellite radio 
merger included a condition limiting price increases on the 
basic subscription package for three years).
    H.R. 3309 fundamentally alters the FCC's role. The agency 
could no longer insist on conditions that protect the public 
interest unless it could demonstrate that it could impose such 
conditions under other statutory authority. This would put in 
jeopardy a broad range of conditions in many mergers.
    H.R. 3309 could also have a paradoxical result. It could 
force the FCC to deny mergers and transactions that otherwise 
could have been granted if the parties were able to commit 
voluntarily to certain conditions.\5\ This is not to say that 
the FCC should always try to approve transactions through the 
use of conditions or voluntary commitments. Requiring the 
agency to reject transactions that might otherwise be approved 
through appropriate conditions, however, eliminates flexibility 
that could benefit companies and consumers alike.
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    \5\For example, under this test the FCC would not be able to adopt 
the conditions that led to the creation of the Comcast Broadband 
Opportunity Program as part of its review of the Comcast--NBC Universal 
transaction.

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H.R. 3309 is unnecessary

    The majority commends Chairman Genachowski repeatedly for 
the improvements that have occurred at the agency under his 
watch. Indeed, Chairman Genachowski's tenure has been marked by 
greater transparency, increased public participation, and 
improved information sharing within the Commission and with the 
public. Simply put, these improvements have come about as a 
matter of leadership, not statute. Chairman Genachowski has 
shown he intends to make most of these changes on his own and 
with the input of his fellow commissioners.
    Furthermore, last year the House passed H.R. 3010, the 
Regulatory Accountability Act\6\ (RAA), which amends the APA 
and creates a variety of new procedural requirements for 
administrative agencies. Although most House Democrats opposed 
the legislation because it imposed onerous requirements on all 
agencies, at least that measure attempted to address agency 
process reform uniformly by applying rules to all agencies 
instead of targeting just one.
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    \6\H.R. 3010.
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    If the majority wishes to impose restrictive process 
requirements on federal agencies to limit their ability to 
adopt rules, it should at least be consistent and not add to 
regulatory confusion by creating unique process requirements 
for a specific agency.

Democrats support common sense reforms of the Commission

    Instead of reporting legislation that does fundamental 
damage to the FCC, the Committee should have considered H.R. 
1009, the Federal Communications Commission Collaboration Act, 
introduced by Ranking Member Eshoo along with Representatives 
Shimkus and Doyle. This bipartisan legislation, which is also 
cosponsored by Reps. Barton, Stearns, and Matsui, would allow a 
bipartisan majority of Commissioners to meet in private for 
collaborative discussions, subject to disclosure requirements 
and oversight.
    According to a bipartisan group of experts, the enactment 
of H.R. 1009 would go a long way toward improving the 
efficiency of FCC operations as well as its deliberative 
process, yet without the unintended consequences and other 
pitfalls of H.R. 3309. As former Republican Commissioner 
Kathleen Abernathy noted at the June 22, 2011, legislative 
hearing, allowing face-to-face communications between 
commissioners as proposed in H.R. 1009 would likely allow 
commissioners ``on their own, [to] address many of the concerns 
raised in the proposed bill, such as timeliness for Commission 
completion of pending items and adequate deliberation by 
commissioners.''\7\
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    \7\House Committee on Energy and Commerce, Subcommittee on 
Communications and Technology, Hearing on Reforming FCC Process, 112th 
Cong. (June 22, 2011) (Question for the Record Response of Kathleen Q. 
Abernathy).
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    During the subcommittee and full committee markups of H.R. 
3309, Ranking Member Eshoo offered a substitute amendment that 
would improve transparency and process at the FCC. 
Specifically, the amendment incorporated H.R. 1009, the Federal 
Communications Commission Collaboration Act, as well as several 
other recommendations adopted last June by the bipartisan 
Administrative Conference of the United States (ACUS).\8\ After 
years of study, ACUS calls on all agencies to develop ``best 
practices'' designed to increase opportunities for public 
participation and to enhance the quality of information 
received by the agencies.
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    \8\ACUS is a bipartisan organization designed to focus exclusively 
on administrative law procedures.
---------------------------------------------------------------------------
    ACUS did not recommend imposing these practices through 
statutory changes as would H.R. 3309. Administrative law 
experts were worried about the unintended consequences of such 
an approach and instead recommend that agencies be encouraged 
to come up with internal procedures. The Eshoo substitute 
amendment therefore directed the FCC to initiate a rulemaking 
proceeding to seek public comment on whether and how the 
Commission should (1) establish procedures to refresh the 
record in a proceeding; (2) set minimum comment periods for 
comment and reply comment subject to good cause exceptions; and 
(3) adopt policies concerning submission of comments, data, or 
reports towards the end of the comment period. These are all 
issues the majority has identified as being problematic at the 
FCC.
    In addition, the Eshoo substitute amendment required the 
FCC to submit to Congress a progress report on the agency's 
compliance with Executive Order 13579, including its stated 
policy on cost-benefit analysis, promotion of public 
participation, and retrospective analyses of existing rules. It 
also required the FCC to publish every six months the 
percentage of orders and actions published within seven days of 
their adoption, as well as the percentage in which the FCC 
included the specific language of the proposed rule in a NPRM.
    In summary, Democrats were prepared to direct the FCC to 
address process concerns. The substitute amendment offered by 
Rep. Eshoo would have freed up the Commissioners to hold 
collaborative discussions and required the FCC to consider 
innovations in the rulemaking process as recommended by ACUS--a 
body comprised of bipartisan administrative law experts who 
have specialized knowledge and interest in improvement of 
federal agency procedures--without unduly tying the hands of 
the Commission. Unfortunately, the amendment was rejected.

The majority rejected a reform proposal that would increase 
        transparency in political advertising

    In addition to Ranking Member Eshoo's substitute amendment, 
the majority also rejected an amendment offered by Rep. Eshoo 
that would have greatly enhanced transparency and disclosure in 
political advertising. The Eshoo amendment would have required 
entities sponsoring such advertising to disclose the identity 
of any donors that contributed $10,000 or more to such entity 
over a preceding two-year period.
    Current FCC rules require broadcasters, cable providers, 
and satellite providers to maintain and make available for 
public inspection a request to purchase airtime related to 
political advertising.\9\ There is no detailed requirement, 
however, regarding the disclosure of who actually paid for the 
advertisement. Rather, the file simply needs to contain the 
name of the person or entity requesting airtime for the 
advertisement. The public has little or no information about 
the entities that are actually financing the advertisements 
they see and hear every day during political campaign season.
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    \9\See 47 U.S.C. 315(e)(1)(A); See also 47 C.F.R. Sec. 73.1943, 47 
C.F.R. Sec. 76.1701, 47 C.F.R. Sec. 25.701(b).
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    Political advertisements directly impact the outcome of 
elections because the broadcast medium has the ability to reach 
vast numbers of citizens. Sponsors of campaign advertisements 
often hide behind confusing organizational names or names that 
can actually mislead the public as to who is sponsoring the 
message. Mild sounding names like ``Taxpayers Against [ ]'' can 
hide the fact that an advertisement is actually being funded by 
a corporation or a limited group of wealthy individuals. A 
recent study revealed that as of January 2012, 95 percent of 
spending during the 2012 election cycle was backed by outside 
groups, as opposed to candidates and political parties.\10\
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    \10\Viveca Novak, Outside Spending Soars Over Earlier Cycles, Open 
Secrets (Jan. 24, 2012) (online at http://www.opensecrets.org/news/
2012/01/outside-spending-soars-over-earlier.html).
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    The Eshoo amendment sought to improve disclosure and 
transparency in political advertising, recognizing the 
incredible impact such advertising can have on the outcome of 
elections. The Eshoo amendment would not increase the burden on 
broadcasters, cable providers, and satellite providers in 
maintaining public inspection files related to political 
advertisements since they are already required to keep a record 
of requests to purchase airtime on file at their stations. It 
was also limited to the disclosure of individuals that have 
made a significant financial contribution to the entity over 
the prior two-year period. Finally, as Rep. Gonzalez noted 
during the debate, the amendment does not raise a 
constitutional issue since the Supreme Court confirmed in 
Citizens United that the government ``may regulate corporate 
political speech through disclaimer and disclosure 
requirements.''\11\
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    \11\Citizens United at 886.
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    We believe that the public has every right to know how the 
public airwaves are being used. Requiring the disclosure of 
entities that actually pay for the messages will help fully 
inform the electorate, which in turn will allow voters to make 
knowledgeable decisions when they go to the polls.
    It is unfortunate that in a bill meant to improve 
transparency, the majority was unwilling to accept a provision 
designed to provide much needed transparency regarding funding 
for political advertising.

Democrats support rigorous agency oversight

    Energy and Commerce Committee Democrats are strong 
proponents of congressional oversight over agencies within our 
jurisdiction. An engaged Congress can help agencies perform at 
higher levels and better serve the American public.
    Before we adopt legislation that affects agency operations, 
we need to ask if it promotes smart regulation. H.R. 3309 fails 
on almost every measure. Although corporate trade associations 
representing business interests expressed mild support for this 
measure, 45 public interest, labor, religious, and non-profit 
organizations, including Consumers Union, Public Knowledge, the 
National Federation of Community Broadcasters, the 
Communications Workers of America, the Writers Guild of 
America, and the United Church of Christ all weighed in against 
this legislation. They stated in a joint letter that the bill 
would ``severely hinder the FCC's ability to carry out its 
congressional mandate to promote competition, innovation, and 
the availability of communications services.''\12\
---------------------------------------------------------------------------
    \12\Letter from Access Humboldt et al. to Chairman Fred Upton and 
Ranking Member Henry Waxman (Feb. 9, 2012).
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    H.R. 3309 will create an undue burden on only one agency. 
It will undermine the FCC's ability to act quickly, 
efficiently, and in the public interest. Proponents of this 
legislation seek procedural changes to address recent agency 
outcomes with which they do not agree. H.R. 3309 seeks to 
disable the FCC, not reform it. Accordingly, we oppose this 
legislation.

                                   Henry A. Waxman.
                                   Anna G. Eshoo.
                                   John D. Dingell.
                                   Edward J. Markey.
                                   Edolphus Towns.
                                   Frank Pallone, Jr.
                                   Bobby L. Rush.
                                   Diana DeGette.
                                   Lois Capps.
                                   Michael F. Doyle.
                                   Janice D. Schakowsky.
                                   Charles A. Gonzalez.
                                   G.K. Butterfield.
                                   Doris O. Matsui.
                                   Donna M. Christensen.

                  DISSENTING VIEWS OF REPRESENTATIVE 
                            JOHN D. DINGELL

    In 1995, then-Congressmen W.J. ``Billy'' Tauzin, Rick 
Boucher, Bart Stupak, and I submitted ``Additional Views'' to 
the Committee on Commerce for inclusion in its Report on the 
Communications Act of 1995 (``the Act''). In those views, we 
likened the Committee's work on the Act to English 
Parliamentarian Charles James Fox's 1783 ``India Resolution.'' 
That resolution, used to force the ouster of Lord North as 
Prime Minister of England, read ``Resolved, that we have seen 
your work, and it will not do.'' H.R. 3309, the Federal 
Communications Commission Process Reform Act, evokes the same 
sorry sentiment.
    H.R. 3309 seeks to reform Commission processes, 
particularly as they concern rulemaking and transaction 
reviews. Reforming such processes, which have a tremendous 
effect on the public good and the Nation's economy, requires a 
substantial record derived from thorough oversight. Prior to 
the Committee's March 6, 2012, markup of H.R. 3309, the 
Subcommittee on Communications and Technology held only two 
related oversight hearings: a May 13, 2011, hearing entitled 
``FCC Process Reform,'' at which the four FCC Commissioners 
appeared; and a June 22, 2011, hearing entitled ``Reforming FCC 
Process,'' at which six additional witnesses appeared. It 
marked up H.R. 3309 on November 16, 2011. Ten witnesses at two 
hearings do not constitute thorough oversight in my view. By 
comparison, the Committee on Commerce heard from 49 witnesses 
on the Act, arguably the last major revision of the 
Communications Act of 1934 approved by the Congress. Fox's 
resolution again here applies.
    Similarly, the significant consequences of H.R. 3309's 
provisions stand in stark contrast to the Committee's failure 
to inquire properly into the impact the legislation will have 
on industry. I still have a number of unanswered questions 
about the bill, the most important of which are as follows:
    1. LWhat types of uncertainties will be created for 
stakeholders as a result of the unique procedural requirements 
imposed upon the Commission by H.R. 3309, which themselves are 
a radical departure from over 60 years of federal 
administrative procedure?
    2. LWhat effect will the bill's restrictions on the 
Commission's transaction review authorities have on the 
Commission's ability to protect the public interest? Further, 
will such restrictions in fact decrease the number of 
transaction reviews the Commission approves?
    3. LTo what extent will H.R. 3309's new cost-benefit 
analysis requirements for economically significant rules 
increase the incidence of judicial reversal of Commission 
rulemakings?
    4. LWhat effects will the bill's provision to exempt 
meetings of a bipartisan majority of commissioners from 
provisions of the Sunshine Act have on the transparency and 
timeliness of Commission's work on its official business?
    5. LFinally, what additional resources, whether in terms of 
increased funds or manpower, will the Commission require to 
implement H.R. 3309's provisions, keeping especially in mind 
the increased potential for judicial reversal of Commission 
actions?
    The Committee's record shows insufficient attention to 
these questions, the answers to which have significant bearing 
on the Commission's ability to function effectively as a 
federal agency. Absent clarification on these points, I cannot 
support the substantial change to the Commission's authorizing 
statute contemplated by H.R. 3309.
    I wish to note that my own experience with the Commission 
as chairman, ranking member, and chairman emeritus of the 
Committee has been one characterized by great consternation at 
the actions of the Commission's chairmen and the body's 
functioning. While I applaud my Majority colleagues' intention 
to improve transparency and processes at the Commission, I have 
come to the conclusion that H.R. 3309 will rather more cripple 
the Commission than reform it. For this reason, I implore my 
colleagues to make use of the Committee's oversight authority 
and hold the Commission accountable to the statutory limits 
placed on it by the Congress. This Committee has used its 
oversight authority not only to inform its Members about the 
legislation they consider, but also to compel better behavior 
by the agencies subject to its jurisdiction.

                                   John D. Dingell.

                                  
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