The House Commerce Committee will hold a hearing tomorrow, July 11, on H.R. 3309, The FCC Process Reform Act. Like most of what happens in Congress these days, it’s a bit of show on a bill that will go nowhere in the Senate. Nevertheless, it’s worth noting a bit of Orwellian doublespeak in the bill having to do with “transparency.” Who can be against transparency in administrative process? Many FCC-watchers have complained of a lack of transparency: data in rulemakings that are not released, influential comments submitted at the last minute without affording any time for reply, meaningless ex parte disclosures, and the perverse Sunshine rules that forbid more than 2 of the 5 FCC Commissioners to meet in private, thereby leaving most of the business to be conducted by unaccountable staffers or to be set aside.
In the last go-around on FCC reform (Spring 2012), Communications Subcommittee Ranking Member Eshoo, with the support of Committee Ranking Member Waxman, proposed reforms that might really have done something to make FCC processes more transparent. These included recommendations of the bipartisan Administrative Conference of the United States that agencies should end the practice of allowing late-filed comments without exceptional cause. Rep. Eshoo also endorsed a proposal that the names of actual large donors (and not just their groups) to political advertising be disclosed. The Republican majority rejected these proposals.
There is agreement between the Republicans and Democrats to allow face-to-face communication among FCC Commissioners – the end of Sunshine. This is a recognition that sometimes, transparency in theory reduces transparency in fact. Rather than illuminating, Sunshine pushed communications into the dark. After that, though, the Republican bill H.R.3309 goes off in weird directions, cynically promising transparency with no hope of delivering it. The bill would put all kinds of additional requirements on agency rulemaking. The FCC alone among agencies would have to conduct cost-benefit analyses (that it has already committed to do) that would be reviewable in court. What’s the quantifiable benefit of diversity in media ownership or public safety communications? The bill would also require the agency to issue a Notice of Inquiry before moving on to a rulemaking proceeding (which it often does anyway) and make specific manipulable and challengable findings (e.g., of specific market failure) before regulating. All a recipe for litigation, obfuscation, process that goes nowhere, and busywork.
Transparency is really not about protracted process, reduced agency flexibility, and mandates for economic studies. It’s about getting before the public what is before the agency with enough time so that the public can respond and the agency will listen.