Agencies like the FCC operate under the auspices of Congress, which has oversight authority. And when an agency like the FCC touches a political third rail — in their case, regulation of powerful communications companies — they can expect to have to answer to Congress. Sometimes repeatedly. And so the FCC found itself on Capitol Hill today, being grilled by a panel of passionate Representatives.
Congress operates by committee, and oversight is no different. Today’s hearing was held by the Communications and Technology Subcommittee, which falls under the Energy and Commerce Committee. All five FCC commissioners — Mignon Clyburn, Jessica Rosenworcel, Ajit Pai, Michael O’Rielly, and chairman Tom Wheeler — were called to testify, and testify they did.
All five commissioners touched on various policies, proposed rules, and enforcement actions the FCC has taken or has announced plans to take during recent months, and their prepared remarks before the committee were much as we’ve come to expect from the commissioners.
In her testimony, Clyburn spoke to the importance of not only competition, but also community. The FCC and Congress have a duty to expand broadband connectivity and close the digital divide through programs like Lifeline, she said.
“The Commission has a statutory duty, mandated by [Congress], to ensure that services are affordable and that low-income consumers have access to advanced services,” said Clyburn, before saying that next week’s Lifeline modernization vote “represents an opportunity to completely overhaul an outdated framework and bring it into the information age.”
Rosenworcel echoed her colleague’s sentiments about Lifeline, speaking to how the future relies on connectivity and how bridging the “homework gap” remains one of her highest priorities.
“Roughly seven in ten teachers assign homework that requires access to broadband,” Rosenworcel said, “but as many as one in three households do not subscribe to broadband serve at any speed, due to lack of affordability and lack of interest.”
The solution? More WiFi and modernizing Lifeline, according to Rosenworcel.
Pai, however, focused on process reform. Namely: he doesn’t like the way the FCC is working. Operations are too partisan and not collaborative enough, he said, and referred to the office of media relations as “transformed from a shop of career staffers dedicated to representing the interests of the agency as a whole into a propaganda machine for the Chairman’s Office.”
O’Rielly also spoke more to process than to policy, saying that although the Commission does still work together on certain issues, they are “often fragmented, which is especially noticeable for the larger ticket items.”
He added that his 65% agreement rate with Wheeler in the Open Meeting votes can in be part “be traced to procedural fouls that are unnecessary, unwise, and harmful,” and continued that the direction of items “push the boundaries of what can or should be asked of the minority members, seeking to undermine our fundamental principles.”
However predictable the prepared testimonies may have been, however, the question and answer portion of the hearing started on a contentious note and went downhill from there, as members of the committee focused on the FCC’s procedures for circulating proposals as much as on the proposals themselves.
Subcommittee chairman Greg Walden of Oregon began with a question to Pai nominally about the details of the privacy NPRM on which the commission will vote next week, but seemingly seemingly designed to set up a showdown about process reform.
When his turn came to respond about the proposal Pai did not give details but responded, rather, that he couldn’t.
“Unfortunately, under the FCC’s current rules I am prohibited from disclosing, even to you, the chairman of the subcommittee, the particular details of the proposal,” he said, “unless the chairman” — he gestured down the table toward Wheeler — “expressly authorizes it.”
“Seriously?” Walden asked incredulously, although he seemed to expect Pai’s answer. “You can’t disclose, even to us.”
“Under the current FCC rules, that is correct.”
“Chairman Wheeler, can you address this?” Walden followed up. “I am confused as to why your fellow commissioners are not allowed to answer questions as to what’s in the privacy proposal you’ve circulated, although I understand that you and your media team are free to speak in public.”
This echoed Pai’s earlier testimony. “This to me is an issue we — I know it perhaps was run that way in the past, but it seems peculiar that the other commissioners can’t comment but you can. Will you let them comment? Can you address this?”
The debate then remained focused on the FCC’s rulemaking process, and the transparency present or absent from it, for two of the hearing’s three hours.
Here’s how that process works: a proposal is privately circulated from the chair’s office to the other four commissioners, each of whom goes over it privately. The commissioners and their staffs read it, and decide what they’re going to say about it, behind closed doors. Then the commission has an open meeting where they vote to adopt the NPRM. If they do adopt it, that starts the rule making process, which includes the public comment cycle.
In other words, a vote like the one coming up on Thursday isn’t like the one Congress takes to adopt a law. Instead, it’s more like getting a compromised version of a bill into a markup hearing. Another vote, several months later after a public comment period and its subsequent reply periods, is what makes an FCC rule into law or not.
That process is what Wheeler alluded to when he replied to Walden, “The [privacy NPRM] is very specific, and the reason you have an [NPRM] is so specific language can be put out so that it can be commented on by the public and have a full-voiced debate, which we will have on this starting next week.”
In the end, the hearing proved primarily political rather than procedural pr having to do with anyone specific policy. Everyone — the FCC and the members of Congress each with their own agenda — got to have their say, either for or against things the commission is currently doing.
