Is It Too Much to Ask That the FCC Identify Actual Instances of Harm Before Issuing New Regulations?

Earlier this week, Politico reported that Republicans in both the House and the Senate are working on legislation intended to reform the regulatory process at the Federal Communications Commission (FCC):

Republican lawmakers on Wednesday renewed a push to curb the Federal Communications Commission's regulatory powers and make the agency's dealings more transparent, the latest attempt by the GOP to rein in what it calls overbearing regulation of business by the Obama administration.

Rep. Greg Walden (R-Ore.), chairman of the House Energy and Commerce Subcommittee on Communications and Technology, and Sen. Dean Heller (R-Nev.) cast their legislation as a stand against job-stifling regulations and opaque processes that make it harder for telecom companies to prosper.

…The measure would require the FCC to publish rules before voting on them — a move that would give industry more time to analyze and push back against proposed regulations. It also would force the commission to identify a specific market failure or consumer harm before enacting a new rule. And the FCC would have to let parties affected by certain commission proceedings know when they can expect a decision.

Later in the article, Rep. Walden says he was interested in these reforms long before the FCC passed last year's net neutrality order. But the net neutrality rules provide a good illustration of the sort of behavior that rules like these would prohibit. Despite a lack of popular outcry for net neutrality regulations, and despite almost no examples of actual harm being caused by net neutrality violations—the agency itself has admitted that the rules are "prophylactic"—the FCC went ahead and passed a bevy of new guidelines about how ISPs can manage traffic over their networks. And they did it without even releasing the final rules to the public first. There was no real case for regulation, but they did it anyway, and they did it while keeping the actual rules secret, holding a vote just a few days before Christmas. 

The FCC wouldn't comment directly on the proposed legislation, but a spokesman did note that since Chairman Julius Genachowski took over, the agency has increased the number of rule-making notices that actually contain the text of the rules from 38 percent to 85 percent. "We've made impressive strides," the spokesperson told Politico. If increasing the number of rules that are actually available to read in advance is impressive and presumably positive, then there shouldn't be any objection to legislation that requires 100 percent of the rules to be clearly posted in advance.

Pennsylvania Democratic Rep. Mike Doyle, however, warned that "the proposed legislation would cause needless delays to the FCC's rulemaking process, making it more difficult for the agency to respond effectively to the fast-changing telecommunications marketplace." Doyle's worrying merely highlights the problem the legislation is intended to solve: The FCC and many of its congressional allies are more interested in aggressively regulating the telecom industry than in justifying or even clearly explaining the agency's rules and decisions. 

Read "Internet Cop," my story on the Obama administration's quixotic quest for net neutrality legislation, here.