Members of the House Energy and Commerce Committee adopted legislation by voice vote on Wednesday that prescribes several important changes to the FCC’s rulemaking process to promote transparency, access to information, and opportunities for public participation in agency proceedings. Authored by House Communications & Technology Subcommittee Chairman Greg Walden (R-OR) and Rep. Adam Kinzinger (R-IL), the Federal Communications Process Reform Act (H.R. 2583) now moves to the House floor for further debate. Among other things, the measure requires the FCC to establish (1) minimum periods for public comment in rulemaking proceedings and for other “significant regulatory actions,” (2) procedures for placing the specific language of proposed rules in notices of proposed rulemaking, and (3) performance measures for assessing the effectiveness of rules adopted by the agency.
During a mark-up session, committee members agreed to add four amendments to the bill. The first such amendment requires the FCC to publicly release the draft of any item under consideration by the FCC’s commissioners. Although Kinzinger claimed that the amendment would “allow anyone access to the draft order” instead of “allowing the Chairman to pick and choose who has access,” ranking Communications & Technology subcommittee member Anna Eshoo (D-CA) cautioned that the amendment “potentially creates a never-ending cycle of lobbying.” The three remaining amendments include provisions that (1) encourage the FCC “to engage with small businesses,” (2) require the Commission to post any rule change to its website within 24 hours of adoption, and (3) require the agency to provide 48-hour public notice of certain staff-level decisions taken on delegated authority. Rep. Bob Latta (R-OH), the sponsor of the delegated authority amendment, emphasized that the amendment applies only to staff decisions that are deemed to be of broad public interest or potentially precedential and not to the thousands of decisions issued routinely by FCC staff members.
As committee chairman Fred Upton applauded Wednesday’s vote as “a positive step in the right direction,” Kinzinger predicted that the bill, once passed, “will ensure the American people the accountability they demand and deserve.” While pledging to “work with Congress on this issue,” however, an official of Public Knowledge described the bill as “unnecessary,” as “the current FCC chairman has demonstrated well how, when the Administrative Procedures Act is adhered to faithfully, the public can have adequate time to comment and influence the outcome” of FCC decisions.