Environment Timelines for Revisiting Agency Decisions

All too often, the FCC imposes rules, placing brand new burdens on companies and impacting the marketplace, without any plan to revisit whether or not those rules remain necessary or relevant in the future. These decisions, and their attendant costs, can stick around for years on autopilot while the FCC turns its attention to other policy issues. One obvious example is the newspaper/broadcast cross-ownership rule, a true anachronism enacted in 1975, but with each year that goes by many other Commission rules that may have been great ideas at the time go further toward irrelevancy, or worse, become affirmative barriers to development. Quite frankly, in the age of hyper-speed “Internet years, ” the Commission’s approach to some issues is stuck in the age of rabbit ears, and this issue is expanding exponentially right along with our own rules.

While the FCC has statutory commitments to periodically review certain aspects of its rules, such as section eleven of the Communications Act, these specifications are generally given short shrift, when they are adhered to all. This is certainly a place where the agency needs to make substantial improvement, but that doesn’t seem to be in the cards anytime soon.

More broadly, the FCC needs to adopt procedures in order to proactively reexamine its rules and policies across its many process. In particular, I have consistently pushed to add sunset provisions to agency orders. Let’s face it: nothing produces an honest assessment of a rule or program like its pending expiration. And the length of any particular supply may depend on a number of factors, including the state of the market, how comprehensive the rules are, and the resources needed to update the regulations. In most cases, nevertheless , I expect that an evaluation associated with rules adopted in this fast transforming sector should occur within five years. If it is not worth the cost to review the rules within five many years, then I seriously question the benefit of keeping them or enacting them in the first place.

The requests for sunset provisions are usually met with opposition, but generally for that wrong reason. Specifically, these demands are often viewed as a sign that I are fundamentally opposed to the Commission’s rules or programs at issue and am deviously attempting to undermine all of them. Instead my goal is simply to ensure that the agency has a strong incentive to engage in a meaningful review and create an affirmative decision as to whether or not the rules should be retained as is, maintained but modified, or eliminated. In some cases, I may even be more receptive in order to proposed rules based on current market realities if a timely appraisal has been guaranteed. But , I am increasingly hesitant to impose regulations that could remain on the books indefinitely when circumstances and technology will inevitably change significantly in the future. No regulation is perfect, and we do not have a crystal ball. It is a matter of regulatory humility.

For instance, in one Notice involving a program required simply by statute, I sought to add the proposal to sunset the rules after two cycles of the program—a full ten years later. The response was that it would be inconsistent with the statute. Yet I wasn’t proposing that the program be discontinued; rather, I was suggesting that this iteration of the program should be reviewed to determine effectiveness and whether or not a different version should be used in following cycles. And since these rules would impact not only service providers and program recipients, but also ratepayers financing the program, it seemed all the more necessary to propose a means to ensure continued great stewardship of consumer dollars. Moreover, proposing a ten-year sunset date seemed more than generous. Yet most of the FCC was unwilling to incorporate such a concept.

Another response I generally hear is that stakeholders are able to file petitions for rulemaking to reexamine past decisions. But this is a specious solution: the agency is below no obligation to consider such request and, even if it launches the proceeding, the FCC has no deadline day to complete it. Maybe pending laws in Congress can rectify this particular, but placing the burden on events to file petitions and advocate designed for consideration also adds to the costs these people already incur to comply with the rules. Instead of waiting until the rules are outdated enough that it is worth the cost for a party to file, the agency should take the lead and proactively review its rules.

The FCC relates to some of the most cutting edge issues and technologies. It also has a full docket. That is a recipe for precipitating, one small drop at a time, a swelling tidal wave of outdated rules and burdens. Perhaps if the agency made routine use of sunset provisions, these requests would not be viewed as votes of no confidence but rather as good government measures designed to ensure that our own rules continue to serve their designed purposes, to the benefit of all.

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