[Senate Report 114-425]
[From the U.S. Government Publishing Office]
Calendar No. 699
114th Congress } { Report
SENATE
2d Session } { 114-425
_______________________________________________________________________
FEDERAL COMMUNICATIONS COMMISSION PROCESS REFORM ACT OF 2015
__________
R E P O R T
of the
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 421
together with
MINORITY VIEWS
December 20, 2016.--Ordered to be printed
Filed, under authority of the order of the Senate of December 10
(legislative day, December 9), 2016
_________
U.S. GOVERNMENT PUBLISHING OFFICE
69-007 WASHINGTON : 2016
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred fourteenth congress
second session
JOHN THUNE, South Dakota, Chairman
ROGER F. WICKER, Mississippi BILL NELSON, Florida
ROY BLUNT, Missouri MARIA CANTWELL, Washington
MARCO RUBIO, Florida CLAIRE McCASKILL, Missouri
KELLY AYOTTE, New Hampshire AMY KLOBUCHAR, Minnesota
TED CRUZ, Texas RICHARD BLUMENTHAL, Connecticut
DEB FISCHER, Nebraska BRIAN SCHATZ, Hawaii
JERRY MORAN, Kansas ED MARKEY, Massachusetts
DAN SULLIVAN, Alaska CORY BOOKER, New Jersey
RON JOHNSON, Wisconsin TOM UDALL, New Mexico
DEAN HELLER, Nevada JOE MANCHIN, West Virginia
CORY GARDNER, Colorado GARY PETERS, Michigan
STEVE DAINES, Montana
Nick Rossi, Staff Director
Adrian Arnakis, Deputy Staff Director
Jason Van Beek, General Counsel
Kim Lipsky, Democratic Staff Director
Christopher Day, Democratic Deputy Staff Director
Clint Odom, Democratic General Counsel
Calendar No. 699
114th Congress } { Report
SENATE
2d Session } { 114-425
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FEDERAL COMMUNICATIONS COMMISSION PROCESS REFORM ACT OF 2015
_______
December 20, 2016.--Ordered to be printed
Filed, under authority of the order of the Senate of December 10
(legislative day, December 9), 2016
_______
Mr. Thune, from the Committee on Commerce, Science, and Transportation,
submitted the following
R E P O R T
[To accompany S. 421]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 421) to amend the
Communications Act of 1934 to provide for greater transparency
and efficiency in the procedures followed by the Federal
Communications Commission, and for other purposes, having
considered the same, reports favorably thereon with an
amendment (in the nature of a substitute) and recommends that
the bill (as amended) do pass.
Purpose of the Bill
S. 421, the Federal Communications Commission Process
Reform Act of 2015, amends the Communications Act of 1934 (47
U.S.C. 151 et seq.) to provide for greater transparency and
efficiency in the procedures followed by the Federal
Communications Commission (FCC or the Commission), and for
other purposes.
Background and Needs
The Federal Communications Commission Process Reform Act of
2015 would improve the transparency and efficiency of
Commission operations.
The Commission exerts broad regulatory authority over
matters of fundamental importance to the American people and to
the economy, regulating interstate and international
communications by radio, television, and wire.\1\ The
Commission is charged with making available to the American
people a rapid, efficient, Nation-wide, and world-wide wire and
radio communication service,\2\ and ensuring deployment of
advanced telecommunications and information services networks
throughout ``all regions of the Nation.''\3\
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\1\47 U.S.C. Sec. 152.
\2\47 U.S.C. Sec. 151.
\3\47 U.S.C. Sec. 254(b)(3).
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The stakes are high; last year alone the Commission
auctioned over $40 billion of spectrum\4\ and applied 1930's
era utility-style regulations to fixed and mobile broadband
Internet networks,\5\ an industry estimated to have invested
some $1.4 trillion since 1996.\6\
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\4\See, e.g., http://wireless.fcc.gov/auctions/
default.htm?job=auction_summary&id=97.
\5\See Protecting and Promoting the Open Internet, Report and Order
on Remand, Declaratory Ruling, and Order, 2015, 30 FCC Rcd 5601.
\6\https://www.ustelecom.org/broadband-industry/broadband-industry-
stats/investment.
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Given its broad regulatory reach, it is essential that the
Commission's activities be efficient and subject to appropriate
oversight by the American people and their representatives in
Congress. Yet despite some modest Commission efforts\7\ to
address the need for greater transparency and efficiency
necessary to earn the confidence of the American people, the
Commission remains burdened with opaque and inefficient
practices and processes. These practices and processes hinder
oversight, frustrate bipartisanship, limit the ability of
Commissioners to participate fully in Commission policy,\8\ and
ultimately make it more difficult to advance the best possible
telecommunications policies.\9\
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\7\Federal Communications Commission (FCC), ``Report on FCC Process
Reform,'' https://www.fcc.gov/article/da-14-199a2.
\8\Fixing Flawed and Non-Existent Editorial Privileges,
Commissioner Michael O'Rielly, at https://www.fcc.gov/news-events/blog/
2015/03/09/fixing-flawed-and-non-existent-editorial-privileges (stating
that when changes are made to a Commission item after it has been
adopted, ``dissenting Commissioners do not even get to vote on
them.'').
\9\See generally, Regulating the Internet: How the White House
Bowled Over FCC Independence, A Majority Staff Report of the Committee
on Homeland Security and Governmental Affairs United States Senate
Senator Ron Johnson, Chairman, Feb. 29, 2016, at https://
www.hsgac.senate.gov/download/regulating-the-internet-how-the-white-
house-bowled-over-fcc-independence.
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Commission proceedings, sometimes unavoidably complex and
highly technical, often fail to provide the public sufficient
information about what the Commission proposes to do, or even
to propose specific rules at all. When it has proposed rules,
the Commission sometimes changes direction and promulgates
drastically different rules without giving the public a
meaningful opportunity to comment on the Commission's new
regulatory scheme, thereby depriving the Commission of the
insight of the people who actually use and provide
communications services.\10\
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\10\See, e.g., Chairman Wheeler's new set-top box proposal: from
unmitigated disaster to plain old disaster, available at https://
truthonthemarket.com/2016/09/10/chairman-wheelers-new-set-top-box-
proposal-from-unmitigated-disaster-to-plain-old-disaster.
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While composed of political appointees, the Commission's
statutory responsibilities are not inherently partisan and the
Commission has historically sought bipartisan consensus on
major policy initiatives, promoting the consistency conducive
to robust long-term investment in our Nation's communications
infrastructure. Under its current chairman, however, the
Commission has adopted nearly twice as many rulemakings on a
party-line vote as under the previous five FCC chairmen
combined, in doing so often eschewing possible bipartisan
compromises.\11\ The Federal Communications Commission Process
Reform Act of 2015, would help return bipartisan consensus to
communications policy by facilitating bipartisan discussions
amongst commissioners given fair access to information about
Commission activities.
---------------------------------------------------------------------------
\11\U.S. Congress, Senate Committee on Commerce, Science, and
Transportation, Oversight of the Federal Communications Commission,
Statement of Committee Chairman John Thune, 114th Congress, September
15, 2016, at http://www.commerce.senate.gov/public/index.cfm/
hearings?Id=7AEC5792-41D2-4FD2-A894-B54B1CFFE31C*Statement_id=33E56D29-
EF49-4B5F-ABEF-FF9073E597D5.
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Summary of Provisions
Section 1 would provide that this Act may be cited as the
``Federal Communications Commission Process Reform Act of
2015.''
Section 2 would add a section 13 to title I of the
Communications Act of 1934, titled ``Transparency and
Efficiency.'' The new section 13 would improve information made
available to the public and to Commissioners about a variety of
Commission activities. It would require, among other things,
that the Commission include in notices of proposed rulemakings
the specific language of the proposed rules, and establish
procedures to ensure that the public has the time and
information necessary to allow reasonable participation in
rulemaking proceedings. The new section 13 would ensure that
all commissioners have adequate time to review Commission
documents before having to vote on them, and would allow
commissioners to engage in collaborative bipartisan discussions
when properly disclosed to the public. This section also would
require that the Commission publish on its website information
about its budget, required reports, and information about how
well it has met deadlines, among other things.
Section 3 would limit FCC categorization of inquiries or
complaints under the Telephone Consumer Protection Act of 1991
(Public Law 102-243; 105 Stat. 2394; TCPA) to eliminate the
inclusion of misleading statistics in Commission reports.
Section 4 would clarify that the Act does not alter the
general framework established under chapter 5 of title 5,
United States Code (commonly referred to as the Administrative
Procedure Act) and related laws, except where it does so
explicitly.
Section 5 would ensure that nothing in this Act or the
amendments made by this Act shall be construed to impede the
FCC from acting in times of emergency to ensure the
availability of efficient and effective communications systems:
(1) to alert the public to imminent dangerous weather
conditions; or (2) for State and local first responders.
Legislative History
On February 10, 2015, Senator Heller introduced S. 421, the
Federal Communications Commission Process Reform Act of 2015.
S. 421 was cosponsored by Senator Daines. The bill was referred
to the Committee on Commerce, Science, and Transportation. On
April 27, 2016, the Committee met in open Executive Session
and, by roll call vote of 13 yeas and 11 nays, ordered the bill
reported, as amended, with an amendment in the nature of a
substitute.
H.R. 2583, a bill similar to S. 421, was introduced in the
House of Representatives by Representative Greg Walden (OR) on
May 29, 2015. H.R. 2583 was agreed to by the House of
Representatives by voice vote on November 16, 2015, and was
received in the Senate and referred to the Committee on
November 17, 2015.
Estimated Costs
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
S. 421--Federal Communications Commission Process Reform Act of 2015
S. 421 would direct the Federal Communications Commission
(FCC) to make a number of procedural changes in its rulemaking
process and to incorporate additional opportunities for public
comment on agency proposals.
On the basis of information from the FCC, CBO estimates
that implementing S. 421 would cost $10 million over the 2017-
2021 period to hire five additional staff and to upgrade its
information technology. Such spending would be subject to the
availability of appropriated funds. However, 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 S. 421 would be
negligible, assuming annual appropriation actions consistent
with the agency's authorities.
Enacting S. 421 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply. CBO
estimates that enacting S. 421 would not increase net direct
spending or on-budget deficits in any of the four consecutive
10-year periods beginning in 2027.
S. 421 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.
If the FCC increases annual fee collections to offset the
costs of implementing its additional regulatory activities, the
bill would increase the cost of an existing mandate on
commercial entities required to pay those fees. Based on
information from the FCC, CBO estimates that the incremental
cost of the mandate would be small--about $10 million over the
next five years--and would fall well below the annual threshold
established in UMRA for private-sector mandates ($154 million
in 2016, adjusted annually for inflation).
The CBO staff contacts for this estimate are Stephen Rabent
(for federal costs) and Logan Smith (for private-sector
mandates). The estimate was approved by H. Samuel Papenfuss,
Deputy Assistant Director for Budget Analysis.
Regulatory Impact
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
number of persons covered
The number of persons covered by this legislation should be
consistent with current levels.
economic impact
S. 421 would increase the transparency and efficiency of
FCC operations. By improving the regulatory process, the bill
would reduce unanticipated burdens on industry and promote more
effective provision of communications services, benefiting
consumers and the economy generally.
privacy
The bill would not have any adverse impact on the personal
privacy of individuals.
paperwork
The Committee does not anticipate the passage of the bill
would result in a major increase in paperwork burdens.
Congressionally Directed Spending
In compliance with paragraph 4(b) of rule XLIV of the
Standing Rules of the Senate, the Committee provides that no
provisions contained in the bill, as reported, meet the
definition of congressionally directed spending items under the
rule.
Section-by-Section Analysis
Section 1. Short title.
This section would provide that the Act may be cited as the
``Federal Communications Commission Process Reform Act of
2015.''
Section 2. FCC process reform.
This section would amend title I of the Communications Act
of 1934 (47 U.S.C. 151 et seq.) to add a new section 13, titled
``Transparency and Efficiency.''
The new section 13 would provide definitions for certain
terms used in the new section 13.
The new section 13 would direct the FCC, not later than 1
year after the date of enactment, to complete a rulemaking
proceeding and adopt procedural changes to its rules to do the
following:
Set minimum comment and reply comment
periods for significant regulatory actions, allowing
departure from these minimum periods only upon approval
by the Commission.
Establish policies concerning the submission
of public comments made toward the end of a comment
period.
Establish policies regarding treatment of
comments and ex parte communications submitted after a
comment period to ensure that the public has adequate
opportunity to respond to the submissions.
Make transparent what items are on
circulation for review by the Commissioners, including
which Commissioners have not cast a vote on an item
that has been on circulation for more than 60 days.
Establish guidelines for issuing a public
notice for certain petitions.
Require notices of proposed rulemaking
(NPRMs) to include the specific language of the
proposed rule.
Require petitions filed with the Commission
to be put out for public notice or disposed of
publicly.
Require NPRMs or final orders that create a
program activity to contain performance measures for
evaluating the effectiveness of the program activity.
Require NPRMs or final orders that change a
program activity to contain performance measures for
evaluating the effectiveness of the program activity as
changed.
Require each NPRM that will impose
additional burdens on industry or consumers to include:
(1) an identification of prior Commission activity of
which such NPRM is a logical outgrowth; or (2) a court
order directing the Commission to act in the manner
reflected in the NPRM.
Require each NPRM or final order that may
have an economically significant impact to contain an
identification and analysis of the specific market
failure that warrants the adoption of the item and a
reasoned determination that the benefits of the item
justify the costs.
Establish procedures under which a
Commissioner, with respect to an order or other
specified Commission actions, may require the entire
Commission to vote on whether to: (1) affirm, modify,
or set aside the order or action; or (2) order a
rehearing upon the order or action.
Publish the language of a rule or amendment
of an existing rule for a period of not fewer than 21
days before the date on which a vote on the rule or
amendment to an existing rule begins.
Establish procedures to identify upon
publication any changes made to an item after it has
been adopted by the Commission.
The new section 13 also would direct the FCC, not later
than 1 year after the date of enactment, to complete an inquiry
to seek public comment on whether and how the FCC should do the
following:
Inform all Commissioners of a reasonable
number of options available to the Commission for
resolving a petition, complaint, application,
rulemaking, or other proceeding.
Ensure that all Commissioners have adequate
time, prior to being required to decide on a rulemaking
or other proceeding, to review the proposed Commission
decision document.
Establish deadlines for the processing of
license applications.
Generate additional resources for the
processing of applications.
Publish Commission decisions within 30 days
of adoption.
The new section 13 would require the FCC to review the
rules established in section 13(b) every five years.
The new section 13 would allow a bipartisan majority of
commissioners to meet for collaborative discussions if they
disclose such meetings within 2 business days and comply with
Office of General Counsel oversight. The section also would
apply to meetings of Federal-State Joint Boards.
The new section 13 would require the FCC to provide links
on its website home page to the current budget, appropriations
request, number of full-time equivalent employees, and its
performance plan.
The new section 13 would require the FCC to publish certain
documents in the Federal Register no later than 60 days after
release of the document or the day specified under any other
provision of law.
The new section 13 would require the FCC to publish certain
documents on its website.
The new section 13 would require the FCC to take additional
steps to inform the public about its performance in meeting the
disclosure requirements of the Freedom of Information Act.
The new section 13 would require the FCC to establish a
schedule for the release of its required reports.
The new section 13 would require the FCC to report annually
regarding its performance in meeting its deadlines and
guidelines as well as how the Commission has used
administrative law judges and independent studies.
The new section 13 would require the FCC to adopt rules
implementing new section 13 no later than 1 year after the date
of enactment and would delay the implementation of the non-
public collaborative discussion provisions until all rules
required by section 13 have taken effect.
Section 3. Categorization of TCPA inquiries and complaints in quarterly
report.
This section would prohibit the FCC from categorizing
inquiries or complaints under the TCPA as wireline or wireless
inquiries or complaints unless the complaint or inquiry
originated from the conduct of a wireline or wireless carrier.
Section 4. Effect on other laws.
This section would clarify that the Act does not alter the
general framework established by the Administrative Procedures
Act and related laws, except where it does so explicitly (for
example, allowing collaboration among Commissioners and on the
Federal-State Joint Boards).
Section 5. Provision of emergency weather information; communications
of first responders.
This section would ensure that nothing in this Act or the
amendments made by this Act shall be construed to impede the
FCC from acting in times of emergency to ensure the
availability of efficient and effective communications systems
(1) to alert the public to imminent dangerous weather
conditions, or (2) for State and local first responders.
Votes in Committee
By a rollcall vote of 13 yeas and 11 nays as follows, the
bill was ordered reported with amendments:\12\
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\12\The bill, as amended, was approved by the Committee on April
27, 2016, with a roll call vote of 13-11, including proxy votes cast.
The vote of those members physically present, however, was 7-7.
Standing Rule of the Senate XXVI requires that a vote to report a
measure have the concurrence of a majority of the members who are
present. Nevertheless, rather than require the Committee to reconvene
to ratify the vote to approve the bill, the Chairman and Ranking Member
have agreed to file this report to document the committee's work and
pursuant to an understanding that neither will seek to advance the bill
in the current session of Congress absent further agreement to do so.
YEAS--13 NAYS--11
Mr. Wicker Mr. Nelson
Mr. Blunt\1\ Ms. Cantwell
Mr. Rubio\1\ Ms. McCaskill\1\
Ms. Ayotte Ms. Klobuchar
Mr. Cruz\1\ Mr. Blumenthal
Ms. Fischer Mr. Schatz
Mr. Moran\1\ Mr. Markey\1\
Mr. Sullivan Mr. Booker
Mr. Johnson\1\ Mr. Udall\1\
Mr. Heller Mr. Manchin\1\
Mr. Gardner\1\ Mr. Peters
Mr. Daines
Mr. Thune
\1\By proxy
Minority Views of Senator Nelson
S. 421, the Federal Communications Commission Process
Reform Act of 2015, is a flawed and unnecessary attempt to
curtail the rulemaking authority of the Federal Communications
Commission (FCC). Simply put, I cannot support any legislation
that I believe would hamstring a key consumer protection agency
like the FCC. The end result of this proposal will be to tie
the hands of this agency and make it nearly impossible for the
FCC to issue rules or take enforcement actions to protect
consumers. The FCC must have rulemaking processes that are
flexible enough that it can respond to a changing world. If we
put a straightjacket on the FCC, we may very well miss the
future and leave the agency powerless - and American consumers
defenseless - to deal with emerging problems.
The Administrative Procedure Act (APA) already governs the
processes by which federal agencies, including independent
agencies, develop and issue regulations. The FCC adheres to the
APA in publishing notices of proposed and final rulemakings in
the Federal Register, providing opportunities for public
comment, as well as satisfying other requirements concerning
issuance of licenses and permits. Use of the APA by all
administrative agencies encourages the development of a
standard body of case law that provides for certainty and
reduces transaction costs. S. 421, though, would subject the
FCC to a number of unique rulemaking procedures and processes
that diverge from those set forth in the APA. By moving the FCC
away from existing APA precedents and future developments, I
believe that S. 421 would create uncertainty, confusion, and
additional work for consumers, regulated entities, the FCC, and
the courts.
I also disagree with many of the substantive procedural
changes contained in S. 421. The communications industry is
characterized by rapid technological change and advancement.
The FCC uses its expertise to address a wide variety of topics
and issues for which one-size-fits-all proceeding time limits
would be inappropriate and counter-productive. Depending on the
topic and circumstances, flexibility with respect to elements
of the regulatory process such as comment periods, notice
approaches (e.g., Notice of Inquiry (NOI) vs. Notice of
Proposed Rulemaking (NPRM)), the degree of cost-benefit
analysis, and timeframes for action, assist the FCC in carrying
out its core responsibilities under the Communications Act. In
fact, requiring additional procedural hoops, like the issuance
of a NOI before a NPRM, may unnecessarily hamper the FCC's
ability to provide prompt regulatory relief. In other cases,
such requirements could harm the ability of the FCC to respond
quickly to address matters of public safety, consumer
protection, or homeland security.
In addition, the legislation's requirement that final rules
must be the ``logical outgrowth'' of the ``specific language
required to be included'' in the NPRM departs from well-
established court precedent under Section 553 of the APA.
Specifically, reviewing courts already use ``logical
outgrowth'' as a factor in evaluating whether an agency's
initial notice is adequate, to ensure that interested members
of the public have a genuine opportunity to comment. Requiring
the agency to limit its decision to rules that are a logical
outgrowth of the ``specific language'' of a proposed rule
contained in the NPRM goes beyond this commonsense approach and
would seem to require the agency to issue a new NPRM if
comments responsive to the NPRM identify a different and better
way of tackling the problem at issue than the one reflected in
the proposed rule language itself. Similarly, court review
under the APA already requires agencies to consider all
relevant factors raised in the record when making decisions,
including factors implicating the costs and benefits of a
particular rule. The Regulatory Flexibility Act also already
requires an analysis of the impact of the FCC's rules on small
organizations.
Furthermore, the requirement to publish items prior to
final approval will make the rulemaking process even more
difficult and delay any final action by the FCC on such items
indefinitely. The APA requires the Commission to respond to all
arguments presented in the record in any final order. Demanding
that the FCC seek additional comment on the final text of an
order would create a never-ending cycle of posting, comment,
revision, and posting - a cycle whose end result likely would
be the inability of the FCC to finalize rules and defend those
successfully in court. It is also possible that this
requirement also may lead to less transparency at the agency.
Given the complexities with negotiating and publishing an
agenda item prior to its formal consideration at an open
meeting, Commission staff may find it easier to manage complex
items on ``circulation'' (i.e., taking action on a matter
without an open meeting) without disclosure requirements or
public discussion. Or the FCC may eschew rulemaking in favor of
additional actions via enforcement. Both could mean less
certainty for regulated entities, and more importantly, an
agency less able to best protect consumers through the
rulemaking process
Moreover, proposed requirements that the FCC must identify
market failure and actual harm to consumers for each rule that
imposes ``additional burdens'' on industry or consumers may be
contrary to the FCC's statutory mandate to serve the public
interest. The ``public interest'' standard that has been the
bedrock of the Communications Act since 1934 does not change
when an FCC rule imposes burdens on industry. It also does not
limit the FCC to adopting rules that address market failures
that involve actual harm to consumers. For example, the FCC's
efforts to ensure the effectiveness of its 9-1-1 rules and
improving the resilience of communications networks against
attack may impose burdens on the communications industry. These
burdens may be justified, though they are unrelated to a market
failure. Similarly, an FCC order addressing harmful
interference between groups within the same radio-based service
or in different radio-based services may produce regulatory
burdens for certain parties that are irrelevant to the
identification and analysis of ``market failure and actual harm
to consumers.''
Finally, S. 421 contains numerous new and untested terms
that will take years for the FCC and reviewing courts to
interpret and implement. By way of example, now the FCC would
have to decide what is a ``burden on industry or consumers,''
and determine whether a notice of inquiry is ``impracticable,
unnecessary, or contrary to the public interest.'' The FCC also
would have to define ``actual consumer harm'' and ``specific
market failure.'' In addition, the FCC would have to determine
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, S. 421 could
ultimately make the FCC less effective, agile, and transparent.
The proposed reforms in S. 421 could result in unintended
consequences that jeopardize the FCC's independence and weaken
the agency's decision-making process. For these reasons, I
oppose S. 421.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
material is printed in italic, existing law in which no change
is proposed is shown in roman):
FEDERAL COMMUNICATIONS ACT OF 1934
[47 U.S.C. 151 et seq.]
SEC. 13. TRANSPARENCY AND EFFICIENCY.
(a) Definitions.--In this section:
(1) Amendment.--The term ``amendment'' includes, when
used with respect to an existing rule, the deletion of
the rule.
(2) Application for review.--The term ``application
for review'' means an application for review filed
under section 1.115 of title 47, Code of Federal
Regulations, or any successor thereto.
(3) Bipartisan majority.--The term ``bipartisan
majority'' means, when used with respect to a group of
Commissioners, that the group--
(A) is a group of 3 or more Commissioners;
and
(B) includes--
(i) for each political party of which
any Commissioner is a member, not less
than 1 Commissioner who is a member of
the political party; and
(ii) if any Commissioner has no
political party affiliation, not less
than 1 unaffiliated Commissioner.
(4) Performance measure.--The term ``performance
measure'' means an objective and quantifiable outcome
measure or output measure (as those defined in section
1115 of title 31, United States Code).
(5) 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.
(6) Petition for declaratory ruling.--The term
``petition for declaratory ruling'' means a petition
for declaratory ruling filed under section 1.2 of title
47, Code of Federal Regulations, or any successor
thereto.
(7) Petition for reconsideration.--The term
``petition for reconsideration'' means a petition for
reconsideration filed under section 1.106 or 1.429 of
title 47, Code of Federal Regulations, or any successor
thereto.
(8) Petition for rulemaking.--The term ``petition for
rulemaking'' means a petition for rulemaking filed
under section 1.401 of title 47, Code of Federal
Regulations, or any successor thereto.
(9) Program activity.--The term ``program
activity''--
(A) has the meaning given the term in section
1115 of title 31, United States Code; and
(B) includes any annual collection or
distribution or related series of collections
or distributions by the Commission of an amount
not less than $100,000,000.
(10) Other definitions.--The terms ``adjudication'',
``agency action'', ``ex parte communication'',
``rule'', and ``rulemaking'' have the meanings given
the terms in section 551 of title 5, United States
Code.
(b) Initial Rulemaking and Inquiry.--
(1) Rulemaking.--Not later than 1 year after the date
of enactment of the Federal Communications Commission
Process Reform Act of 2015, the Commission shall
complete a rulemaking proceeding and adopt procedural
changes to the rules of the Commission to maximize
opportunities for public participation and efficient
decision making.
(2) Requirements for rulemaking.--The rules adopted
under paragraph (1) shall--
(A) set minimum comment periods for comment
and reply comment, subject to a determination
by the Commission that good cause exists for
departing from the minimum comment periods,
for--
(i) significant regulatory actions,
as defined in Executive Order 12866 (5
U.S.C. 601 note; relating to regulatory
planning and review);
(ii) all other rulemaking
proceedings; and
(iii) petitions for forbearance filed
under section 10(c) of the
Communications Act of 1934 (47 U.S.C.
160(c));
(B) establish policies concerning the
submission of extensive new comments, data, or
reports towards the end of a comment period;
(C) establish policies regarding treatment of
comments, ex parte communications, and data or
reports (including statistical reports and
reports to Congress) submitted after a comment
period to ensure that the public has adequate
notice of and opportunity to respond to the
submissions before the Commission relies on the
submissions in any order, decision, report, or
action;
(D) establish procedures for publishing the
status of open rulemaking proceedings and
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;
(E) establish guidelines (relative to the
date of filing) for issuing a public notice
of--
(i) a petition for declaratory
ruling;
(ii) a petition for rulemaking;
(iii) a petition for reconsideration;
or
(iv) an application for review;
(F) require each notice of proposed
rulemaking to include the specific language of
the proposed rule or the proposed amendment of
an existing rule;
(G) require each petition filed with the
Commission to be--
(i) put out for public notice,
subject to the minimum comment and
reply comment periods established under
subparagraph (A); or
(ii) disposed of pursuant to an order
of dismissal;
(H) require each new notice of proposed
rulemaking or order adopting a rule or amending
an existing rule that creates (or proposes to
create) a program activity to contain
performance measures for evaluating the
effectiveness of the program activity;
(I) require each notice of proposed
rulemaking or order adopting a rule or amending
an existing rule that substantially changes (or
proposes to substantially change) a program
activity to contain--
(i) performance measures for
evaluating the effectiveness of the
program activity as changed (or
proposed to be changed); or
(ii) a finding that existing
performance measures will effectively
evaluate the program activity as
changed (or proposed to be changed);
(J) require each notice of proposed
rulemaking to include--
(i) an identification of 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 date on which the notice
of proposed rulemaking concerned is
issued and of which such notice is a
logical outgrowth;
(ii) an order of a court reviewing
action by the Commission or otherwise
directing the Commission to act that
the court issued during the 3-year
period preceding the date on which the
notice of proposed rulemaking concerned
is issued and in response to which such
notice is being issued; or
(iii) 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; and
(II) for good cause, that a
notice of inquiry is
impracticable, unnecessary, or
contrary to the public
interest;
(K) require each notice of proposed
rulemaking or order adopting a rule or amending
an existing rule that may have an economically
significant impact, to contain--
(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 adoption or
amendment justify the 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;
(L) establish procedures under which a
Commissioner, with respect to an order,
decision, report, or action of a bureau or
office of the Commission, may require the
entire Commission to vote on whether to--
(i) affirm, modify, or set aside the
order, decision, report, or action; or
(ii) order a rehearing upon the
order, decision, report, or action in
accordance with section 405;
(M) establish procedures for publishing the
language of a rule or amendment of an existing
rule for a period of not fewer than 21 days
before the date on which a vote on the rule or
amendment to an existing rule begins; and
(N) establish procedures to, when publishing
an item adopted by the Commission, identify any
changes made to the item after its adoption.
(3) Inquiry.--Not later than 1 year after the date of
enactment of the Federal Communications Commission
Process Reform Act of 2015, the Commission shall
complete an inquiry to seek public comment on whether
and how the Commission should--
(A) establish procedures for informing all
Commissioners of a reasonable number of options
available to the Commission for resolving a
petition, complaint, application, rulemaking,
or other proceeding;
(B) establish procedures for 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 under 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;
(C) establish deadlines (relative to the date
of filing) for disposition of applications for
a license under section 1.913 of title 47, Code
of Federal Regulations;
(D) assign resources needed to meet the
deadlines described in subparagraph (C),
including whether the ability of the Commission
to meet those deadlines would be enhanced by
assessing a fee from applicants for a license
described in subparagraph (C); and
(E) publish each order, decision, report, or
action not later than 30 days after the date of
the adoption of the order, decision, report, or
action.
(4) Data for performance measures.--The Commission
shall develop a performance measure or proposed
performance measure required under this subsection to
rely, where possible, on data already collected by the
Commission.
(c) Periodic Review.--On the date that is 5 years after the
completion of the rulemaking proceeding under subsection
(b)(1), and every 5 years thereafter, the Commission shall
initiate a new rulemaking proceeding to continue to consider
any procedural changes to the rules of the Commission that may
be in the public interest to maximize opportunities for public
participation and efficient decisionmaking.
(d) Nonpublic Collaborative Discussions.--\1\
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\1\ Subsection (d) of section 13 of the Communications Act of 1934,
as added, shall apply beginning on the first date on which all of the
procedural changes to the rules of the Federal Communications
Commission required under subsection (b)(1) of such section have taken
effect.
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(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 the meeting;
(B) each person present at the meeting is a
Commissioner, an employee of the Commission, a
member of a joint board or conference
established under section 410, or a person on
the staff of such a joint board or conference
or of a member of such a joint board or
conference; and
(C) an attorney from the Office of General
Counsel of the Commission is present at the
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 the meeting,
including--
(A) a list of the persons who attended the
meeting; and
(B) a summary of the matters discussed at the
meeting, except for any matters that 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).
(e) Access to Certain Information on Commission's Website.--
The Commission shall provide direct access from the homepage of
the website of the Commission to--
(1) detailed information regarding--
(A) the budget of the Commission for the
current fiscal year;
(B) the appropriations for the Commission for
the current 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.
(f) 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 the document to be so published.
(2) Date described.--The date described in this
paragraph is the earlier of--
(A) the date that is 60 days after the date
of the release of the document described in
paragraph (1); or
(B) the date by which the actions described
in paragraph (1) must be completed to comply
with any deadline under any other provision of
law.
(3) No effect on deadlines for publication in other
form.--
(A) In general.--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 the
deadline by publishing the document in another
form.
(B) Applicability of federal register
publication requirements.--Publication of a
document in another form as described in
subparagraph (A) shall not relieve the
Commission of any Federal Register publication
requirement applicable to the document,
including the requirement under paragraph (1).
(g) Form of Publication.--
(1) In general.--In complying with a requirement
under this section to publish a document, the
Commission shall publish the document on the website of
the Commission, in addition to publishing the 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 under this section so that the
published versions of the 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.
(h) Transparency Relating to Performance in Meeting FOIA
Requirements.--The Commission shall take additional steps to
inform the public about the performance and efficiency of the
Commission in meeting the disclosure and other requirements
under section 552 of title 5, United States Code (commonly
referred to as the ``Freedom of Information Act''), including
by--
(1) publishing on the website of the Commission the
logs used by the Commission for tracking, responding
to, and managing requests submitted under such section,
including the Commission's fee estimates, fee
categories, and fee request determinations;
(2) releasing to the public all decisions made by the
Commission (including decisions made by the Bureaus and
Offices of the Commission) granting or denying requests
filed under such section, including any such decisions
pertaining to the estimate and application of fees
assessed under such section;
(3) publishing on the website of the Commission
electronic copies of documents released under such
section; and
(4) presenting, in the annual budget estimates of the
Commission submitted to Congress and the annual
performance and financial reports of the Commission,
information about the handling by the Commission of
requests under such section, including--
(A) the number of requests under such section
the Commission received during the most recent
fiscal year;
(B) the number of requests described in
subparagraph (A) granted and denied;
(C) a comparison of the processing of
requests described in subparagraph (A) by the
Commission during a period of not less than the
3 preceding fiscal years; and
(D) a comparison of the results of the
Commission in processing requests described in
subparagraph (A) with the most recent average
for the United States Government as published
on www.foia.gov.
(i) Prompt Release of Statistical Reports and Reports to
Congress.--Not later than January 15 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 the year.
(j) Annual Score Card Reports.--\2\
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\2\ Subsection (j) of section 13 of the Communications Act of 1934,
as added, shall apply with respect to 2015 and any year thereafter.
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(1) In general.--For the 1-year period beginning on
January 1 of each year, the Commission shall prepare a
report on the performance of the Commission in
conducting proceedings and meeting the guidelines
established under subsection (b)(2)(E).
(2) Contents.--Each report required under paragraph
(1) shall contain detailed statistics on the
performance of the Commission as described in paragraph
(1), including, with respect to each bureau or office
of the Commission--
(A) with respect to each type of filing
specified in subsection (b)(2)(E)--
(i) the number of filings that were
pending on the last day of the period
covered by the report;
(ii) the number of filings described
in clause (i) for which each applicable
deadline or guideline established under
such subsection was not met and the
average length of time those filings
have been pending; and
(iii) for filings that were resolved
during the period covered by the
report, the average time between
initiation and resolution and the
percentage for which each applicable
deadline or guideline established under
such subsection was met;
(B) with respect to proceedings before an
administrative law judge--
(i) the number of proceedings
completed during the period covered by
the report; and
(ii) the number of proceedings
pending on the last day of the period
covered by the report; and
(C) the number of independent studies or
analyses published by the Commission during the
period covered by the report.
(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 under paragraph (1) not
later than the date that is 30 days after the last day
of the period covered by the report.