The Federal Communications Commission:
Current Structure and Its Role in the
Changing Telecommunications Landscape
Patricia Moloney Figliola
Specialist in Internet and Telecommunications Policy
April 17July 18, 2013
Congressional Research Service
7-5700
www.crs.gov
RL32589
CRS Report for Congress
Prepared for Members and Committees of Congress
The Federal Communications Commission
Summary
The Federal Communications Commission (FCC) is an independent federal agency with its five
members appointed by the President, subject to confirmation by the Senate. It was established by
the Communications Act of 1934 (1934 Act) and is charged with regulating interstate and
international communications by radio, television, wire, satellite, and cable. The mission of the
FCC is to ensure that the American people have available—at reasonable cost and without
discrimination—rapid, efficient, nation- and world-wide communication services, whether by
radio, television, wire, satellite, or cable.
Although the FCC has restructured over the past few years to better reflect the industry, it is still
required to adhere to the statutory requirements of its governing legislation, the Communications
Act of 1934. The 1934 Act requires the FCC to regulate the various industry sectors differently.
Some policymakers have been critical of the FCC and the manner in which it regulates various
sectors of the telecommunications industry—telephone, cable television, radio and television
broadcasting, and some aspects of the Internet. These policymakers, including some in Congress,
have long called for varying degrees and types of reform to the FCC. Most proposals fall into two
categories: (1) procedural changes made within the FCC or through congressional action that
would affect the agency’s operations or (2) substantive policy changes requiring congressional
action that would affect how the agency regulates different services and industry sectors. Nine
bills have been introduced during the 112th Congress that would change the operation of the FCC.
For FY2014, the FCC has requested a budget of $359,299,000. The FCC’s budget is derived from
regulatory fees collected by the agency rather than through a direct appropriation. The fees, often
referred to as “Section (9) fees,” are collected from license holders and certain other entities (e.g.,
cable television systems) and deposited into an FCC account. The law gives the FCC authority to
review the regulatory fees and to adjust the fees to reflect changes in its appropriation from year
to year. It may also add, delete, or reclassify services under certain circumstances.
In the 113th Congress, one hearing hasthree hearings have been held on FCC oversight and two, reform, and management
and four bills have been
introduced that would affect the manner in which the FCC conducts its
business.
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The Federal Communications Commission
Contents
Overview of the Federal Communications Commission ................................................................. 1
FCC Leadership ......................................................................................................................... 2
FCC Structure ............................................................................................................................ 23
FCC Strategic Plan .................................................................................................................... 3
FCC Operations: Budget, Authorization, and Reporting to Congress ............................................. 4
FCC FY2014 Budget ................................................................................................................. 5
FCC Authorization..................................................................................................................... 5
FCC Reporting to Congress....................................................................................................... 56
FCC-Related Congressional Action—113th Congress ..................................................................... 6
Hearings..................................................................................................................................... 6
Legislation ................................................................................................................................. 6
Proposals for Change ....................................................................................................................... 7
Potential Procedural Changes .................................................................................................... 7
Adoption/Release of Orders ................................................................................................ 7
Sunshine Rules .................................................................................................................... 7
Timeliness ........................................................................................................................... 8
Enforcement ........................................................................................................................ 8
Potential Structural Changes ..................................................................................................... 87
Appendixes
Appendix A. FCC-Related Congressional Action—112th Congress ................................................ 9 10
Appendix B. FCC-Related Government Accountability Office Studies ........................................ 1312
Contacts
Author Contact Information........................................................................................................... 1413
Congressional Research Service
The Federal Communications Commission
Overview of the Federal Communications
Commission
The Federal Communications Commission (FCC) is an independent federal agency with its five
members appointed by the President, subject to confirmation by the Senate. It was established by
the Communications Act of 1934 (1934 Act or “Communications Act”)1 and is charged with
regulating interstate and international communications by radio, television, wire, satellite, and
cable.2 The mission of the FCC is to ensure that the American people have available, “without
discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient,
Nationwide, and worldwide wire and radio communication service with adequate facilities at
reasonable charges.”3
The 1934 Act is divided into titles and sections that describe various powers and concerns of the
Commission.4
•
Title I—FCC Administration and Powers. The 1934 Act originally called for a
commission consisting of seven members, but that number was reduced to five in
1983. Commissioners are appointed by the President and approved by the Senate
to serve five-year terms; the President designates one member to serve as
chairman. No more than three commissioners may come from the political party
of the President. Title I empowers the Commission to create divisions or bureaus
responsible for specific work assigned and to structure itself as it chooses.
•
Title II—Common carrier regulation, primarily telephone regulation, including
circuit-switched telephone services offered by cable companies. Common
carriers are communication companies that provide facilities for transmission but
do not originate messages, such as telephone and microwave providers. The 1934
Act limits FCC regulation to interstate and international common carriers,
although a joint federal-state board coordinates regulation between the FCC and
state regulatory commissions.
1
The Communications Act of 1934, 47 U.S.C. §151 et seq., has been amended numerous times, most significantly in
recent years by the Telecommunications Act of 1996, P.L. 104-104, 110 Stat. 56 (1996). References in this report are to
the 1934 Act, as amended, unless indicated. A compendium of communications-related laws is available from the
House Committee on Energy and Commerce at http://energycommerce.house.gov/108/pubs/108-D.pdf. It includes
selected Acts within the jurisdiction of the Committee, including the Communications Act of 1934,
Telecommunications Act of 1996, Communications Satellite Act of 1962, National Telecommunications and
Information Administration Organizations Act, Telephone Disclosure and Dispute Resolution Act, Communications
Assistance for Law Enforcement Act, as well as additional communications statutes and selected provisions from the
United States Code. The compendium was last amended on December 31, 2002.
2
See “About the FCC,” at http://www.fcc.gov/aboutus.html.
3
47 U.S.C. §151.
4
When Congress established the FCC in 1934, it merged responsibilities previously assigned to the Federal Radio
Commission, the Interstate Commerce Commission, and the Postmaster General into a single agency, divided into three
bureaus, Broadcast, Telegraph, and Telephone. See Analysis of the Federal Communications Commission, Fritz
Messere, at http://www.oswego.edu/~messere/FCC1.html and the Museum of Broadcast Communications Archive at
http://www.museum.tv/archives/etv/F/htmlF/federalcommu/federalcommu.htm for additional information on the
history of the FCC.
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The Federal Communications Commission
•
Title III—Broadcast station requirements. Much existing broadcast regulation
was established prior to 1934 by the Federal Radio Commission and most
provisions of the Radio Act of 1927 were subsumed into Title III of the 1934 Act.
Sections 303-307 define many of the powers given to the FCC with respect to
broadcasting; other sections define limitations placed upon it. For example,
Section 326 of Title III prevents the FCC from exercising censorship over
broadcast stations. Also, parts of the U.S. code are linked to the Communications
Act. For example, 18 U.S.C. 464 makes obscene or indecent language over a
broadcast station illegal.
•
Title IV—Procedural and administrative provisions, such as hearings, joint
boards, judicial review of the FCC’s orders, petitions, and inquiries.
•
Title V—Penal provisions and forfeitures, such as violations of rules and
regulations.
•
Title VI—Cable communications, such as the use of cable channels and cable
ownership restrictions, franchising, and video programming services provided by
telephone companies.
•
Title VII—Miscellaneous provisions and powers, such as war powers of the
President, closed captioning of public service announcements, and
telecommunications development fund.
FCC Leadership
The FCC is directed by five commissioners appointed by the President and confirmed by the
Senate for five-year terms (except when filling an unexpired term). The President designates one
of the commissioners to serve as chairperson. Only three commissioners may be members of the
same political party. None of them can have a financial interest in any Commission-related
business. The commissioners are:
•
Julius GenachowskiMignon Clyburn (confirmed by the Senate on June 29, 2009)
•
Robert McDowell (confirmed by the Senate on June 25, 2009)
•
Mignon Clyburn (confirmed by the Senate on July 24, 2009)
•
Jessica Rosenworcel (confirmed by the Senate on May 7, 2012)
•
Ajit Pai (confirmed by the Senate on May 7, 2012).
Both Chairman Genachowski and Commissioner McDowell have announced their plans to resign
at the end of their current terms.July 24, 2009), Acting Chairman;
•
Jessica Rosenworcel (confirmed by the Senate on May 7, 2012); and
•
Ajit Pai (confirmed by the Senate on May 7, 2012).
Two seats are vacant due to the resignations of Chairman Julius Genachowski and Commissioner
Robert McDowell. President Obama nominated Mr. Tom Wheeler as Chairman on May 1, 2013,5
and the Senate Committee on Commerce, Science, and Transportation held a nomination hearing
on June 18, 2013,6 but declined to vote to confirm him. President Obama has not yet nominated
anyone for the open Republican seat at the Commission. News reports have stated that it is
unlikely that the Senate will vote on Mr. Wheeler’s nomination until a Republican nominee has
been named. One name that has been reported is Mr. Mike O’Reilly, who is currently on the staff
of Senator John Cornyn.7
5
http://www.whitehouse.gov/blog/2013/05/01/president-obama-announces-his-nominees-fcc-chair-and-fhfa-director.
The hearing was held in two sessions, online at http://www.c-spanvideo.org/program/ChairNom and http://www.cspanvideo.org/program/ChairNomi.
7
http://www.politico.com/story/2013/07/wheeler-gop-nominee-fcc-94284.html.
6
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FCC Structure
The day-to-day functions of the FCC are carried out by 7 bureaus and 10 offices. The current
basic structure of the FCC was established in 2002 as part of the agency’s effort to better reflect
the industries it regulates. The seventh bureau, the Public Safety and Homeland Security Bureau,
was established in 2006.
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The bureaus process applications for licenses and other filings, analyze complaints, conduct
investigations, develop and implement regulatory programs, and participate in hearings, among
other things. The offices provide support services. Bureaus and offices often collaborate when
addressing FCC issues.58 The bureaus hold the following responsibilities:
•
Consumer and Governmental Affairs Bureau—Addresses all types of consumerrelated matters from answering questions and responding to consumer complaints
to distributing consumer education materials.
•
Enforcement Bureau—Enforces FCC rules, orders, and authorizations.
•
International Bureau—Administers the FCC’s international telecommunications
policies and obligations.
•
Media Bureau—Develops, recommends, and administers the policy and licensing
programs relating to electronic media, including cable television, broadcast
television, and radio in the United States and its territories.
•
Public Safety and Homeland Security Bureau—Addresses issues such as public
safety communications, alert and warning of U.S. citizens, continuity of
government operations and continuity of operations planning, and disaster
management coordination and outreach.
•
Wireless Telecommunications Bureau—Handles all FCC domestic wireless
telecommunications programs and policies.69 Wireless communications services
include cellular, paging, personal communications services, public safety, and
other commercial and private radio services. This bureau also is responsible for
implementing the competitive bidding authority for spectrum auctions.
•
Wireline Competition Bureau—Administers the FCC’s policies concerning
common carriers—the companies that provide long distance and local service to
consumers and businesses. These companies provide services such as voice, data,
and other telecommunication transmission services.
FCC Strategic Plan
The current FCC Strategic Plan covers the five-year period FY2012–FY2016. The plan outlines
eight goals:
•
Connect America: Maximize Americans’ access to—and the adoption of—
affordable fixed and mobile broadband where they live, work, and travel.
8
FCC Fact Sheet, http://www.fcc.gov/cgb/consumerfacts/aboutfcc.html.
Except those involving satellite communications broadcasting, including licensing, enforcement, and regulatory
functions. These functions are handled by the International Bureau.
9
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•
Maximize Benefits of Spectrum: Maximize the overall benefits of spectrum for
the United States.
•
Protect and Empower Consumers: Empower consumers by ensuring that they
have the tools and information they need to make informed choices; protect
consumers from harm in the communications market.
5
FCC Fact Sheet, http://www.fcc.gov/cgb/consumerfacts/aboutfcc.html.
Except those involving satellite communications broadcasting, including licensing, enforcement, and regulatory
functions. These functions are handled by the International Bureau.
6
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•
Promote Innovation, Investment, and America’s Global Competitiveness:
Promote innovation in a manner that improves the nation’s ability to compete in
the global economy, creating a virtuous circle that results in more investment and
in turn enables additional innovation.
•
Promote Competition: Ensure a competitive market for communications and
media services to foster innovation, investment, and job creation and to ensure
consumers have meaningful choice in affordable services.
•
Public Safety and Homeland Security: Promote the availability of reliable,
interoperable, redundant, rapidly restorable critical communications
infrastructures that are supportive of all required services.
•
Advance Key National Purposes: Through international and national interagency
efforts, advance the use of broadband for key national purposes.
•
Operational Excellence: Make the FCC a model for excellence in government by
effectively managing the Commission’s human, information, and financial
resources; by making decisions based on sound data and analyses; and by
maintaining a commitment to transparent and responsive processes that
encourage public involvement and best serve the public interest.
The FCC has identified performance objectives associated with each strategic goal. Commission
management annually develops targets and measures related to each performance goal to provide
direction toward accomplishing those goals. Targets and measures are published in the FCC’s
Performance Plan, submitted with the Commission’s annual budget request to Congress. Results
of the Commission’s efforts to meet its goals, targets, and measures are found in the FCC’s
Annual Performance Report published each February. The FCC also issues a Summary of
Performance and Financial Results every February, providing a concise, citizen-focused review of
the agency’s accomplishments.
FCC Operations: Budget, Authorization, and
Reporting to Congress
Since the 110th Congress, the FCC has been funded through the Financial Services (House) and
Financial Services and General Government (Senate) appropriations process as a single line item.
Previously, it was funded through what is now the Commerce, Justice, Science appropriations
process, also as a single line item.
Most or all of the FCC’s budget is derived from regulatory fees collected by the agency rather
than through a direct appropriation.710 The fees, often referred to as “Section (9) fees,” are collected
10
The Omnibus Budget Reconciliation Act of 1993 (P.L. 103-66, 47 U.S.C. §159) requires that the FCC annually
(continued...)
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collected from license holders and certain other entities (e.g., cable television systems) and
deposited into
an FCC account. The law gives the FCC authority to review the regulatory fees
and to adjust the
fees to reflect changes in its appropriation from year to year. Most years,
appropriations language
prohibits the use by the Commission of any excess collections received in the current fiscal year
7
The Omnibus Budget Reconciliation Act of 1993 (P.L. 103-66, 47 U.S.C. §159) requires that the FCC annually
collect fees and retain them for FCC use to offset certain costs incurred by the Commission. The FCC implemented the
regulatory fee collection program by rulemaking on July 18, 1994.
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or any prior years. These funds remain in the FCC account and are not made available to other
agencies or agency programs nor redirected into the Treasury’s general fund.
FCC FY2014 Budget
For FY2014, the FCC has requested a budget of $359,299,000.8
in the current fiscal year or any prior years. These funds remain in the FCC account and are not
made available to other agencies or agency programs nor redirected into the Treasury’s general
fund.
FCC FY2014 Budget
For FY2014, the FCC has requested a budget of $359,299,000, with no direct appropriation (i.e.,
the entire budget will be funded through auction proceeds).11 It includes requests for funding to:
(1) support Commission-wide information technology needs through extending the enterprise
storage; (2) support for reform of the Universal Service Fund Support Program; (3) space
consolidation and facilities improvement that will reduce lease arrangements that are not cost
effective and improve efficiencies; (4) create a Do-Not-Call registry for telephone numbers used
by Public Safety Answering Points; (5) provide resources for mission-critical systems to ensure
that they are operational during a Continuity of Operations event; and (6) provide contract
funding to support mandatory audits for the Office of the Inspector General. The budget
submission also includes a request to decrease the spending of Auctions funding from $98.7
million to $89.4 million to support the timely implementation of the Auctions Incentive program.
FCC Authorization
The FCC was last formally authorized in the FCC Authorization Act of 1990 (P.L. 101-396).
Since that time, five bills have been introduced that would have reauthorized the FCC, but none
were signed into law.
•
108th Congress, S. 1264, FCC Reauthorization Act of 2003, Senator John
McCain;912
•
104th Congress, H.R. 1869, Federal Communications Commission Authorization
Act, Representative Jack Fields;
•
103rd Congress, H.R. 4522, Federal Communications Commission Authorization
Act, Representative Edward Markey, and
103rd Congress, S. 2336, Federal Communications Commission Authorization
Act, Senator Daniel Inouye; and
•
102nd Congress, S. 1132, Federal Communications Commission Authorization
Act, Senator Daniel Inouye.
(...continued)
collect fees and retain them for FCC use to offset certain costs incurred by the Commission. The FCC implemented the
regulatory fee collection program by rulemaking on July 18, 1994.
11
http://www.fcc.gov/document/fcc-fy-2014-budget.
12
For more information, see S.Rept. 108-140, at http://www.gpo.gov/fdsys/pkg/CRPT-108srpt140/pdf/CRPT108srpt140.pdf.
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FCC Reporting to Congress
The FCC publishes four reports for Congress.
•
Strategic Plan. The Strategic Plan is the framework around which the FCC
develops its yearly Performance Plan and Performance Budget. The FCC is to
submit its next four-year Strategic Plan by February 2014, in accordance with the
Government Performance and Results Modernization Act of 2010, P.L. 111-352.
•
Performance Budget. The annual Performance Budget includes performance
targets based on the FCC’s strategic goals and objectives, and serves as the guide
for implementing the Strategic Plan. The Performance Budget becomes part of
the President’s annual budget request.
•
Agency Financial Report. The annual Agency Financial Report contains
financial and other information, such as a financial discussion and analysis of the
agency’s status, financial statements, and audit reports.
8
http://www.fcc.gov/document/fcc-fy-2014-budget.
For more information, see S.Rept. 108-140, at http://www.gpo.gov/fdsys/pkg/CRPT-108srpt140/pdf/CRPT108srpt140.pdf.
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•
Annual Performance Report. At the end of the fiscal year, the FCC publishes
an Annual Performance Report that compares the agency’s actual performance
with its targets.1013
All of these reports are available on the FCC website.1114
FCC-Related Congressional Action—113th
Congress12
One hearing has been held on Federal Communications Commission (FCC) oversight and two
bills have Congress15
Three hearings have been held on FCC oversight, reform, and management and four bills have
been introduced that would affect the manner in which the FCC conducts its business.
Hearings
FCC Oversight. On March 12, 2013, the Senate Committee on Commerce, Science, and
Transportation held a
hearing on issues related to FCC oversight.1316 All five FCC commissioners testified.14
Legislation
Commission Collaboration
Federal Communications Commission Collaboration Act (H.R. 539, S. 245)
H.R. 539 and S. 245 Status. H.R. 539 was introduced by Representative Anna Eshoo in the
House Committee on Energy and Commerce on February 6, 2013. The bill was referred to the
Subcommittee on Communications and Technology on February 8, 2013. This bill is identical to
H.R. 1009, introduced by Representative Eshoo in the 112th Congress. S. 245 was introduced by
Senator Amy Klobuchar in the Senate Committee on Commerce, Science, and Transportation on
February 7, 2013.
10
testified.17
13
OMB Circular A-136 allows agencies the option of producing (1) two separate reports, an Agency Financial Report
and an Annual Performance Report, or (2) a consolidated Performance and Accountability Report. The same
information is provided to Congress in either case. The FCC elected the first option for FY2011. Also, in addition to
the reports it submits to Congress, the FCC publishes an annual Summary of Performance and Financial Information,
which is a citizen-focused summary of the FCC’s yearly activities.
1114
http://www.fcc.gov/encyclopedia/fcc-strategic-plan.
1215
The 110th Congress assigned responsibility for FCC appropriations process to the Subcommittee on Financial
Services within the Committee on Appropriations, where has remained.
1316
Information about this hearing, including a video of the hearing, is available at http://www.commerce.senate.gov/
public/index.cfm?p=Hearings&ContentRecord_id=18f83ea5-3d7d-4ef9-92ad-30a3421c11d3&ContentType_id=
14f995b9-dfa5-407a-9d35-56cc7152a7ed&Group_id=b06c39af-e033-4cba-9221-de668ca1978a.
14
A number of organizations published summaries of the hearing, for example: Bloomberg BNA,
http://dailyreport.bna.com/drpt/7010/split_display.adp?fedfid=29986801&vname=dernotallissues&wsn=499841500&
searchid=19900305&doctypeid=1&type=date&mode=doc&split=0&scm=7010&pg=1; Benton Foundation,
http://benton.org/node/147694; and Reuters, http://www.reuters.com/article/2013/03/12/us-usa-fcc-oversightidUSBRE92B17420130312.
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H.R. 539 and S. 245 Summary. This bill would amend the Communications Act of 1934 to
allow, notwithstanding a specified open meeting provision, three or more commissioners of the
Federal Communications Commission (FCC) to hold a meeting that is closed to the public to
discuss official business if (1) no agency action is taken; (2) each person present is an FCC
commissioner or employee; (3) for each political party of which any commissioner is a member,
at least one commissioner who is a member of the respective party is present, and, if any
commissioner has no party affiliation, at least one unaffiliated commissioner is present; and (4) an
attorney from the FCC’s Office of General Counsel is present. It would require public disclosure
of the meeting, attendees, and matters discussed.
Proposals for Change
Proposals for change at the FCC can be characterized as either “procedural” changes that focus
on the manner in which the agency conducts its business or “substantial” changes that focus on
the manner in which the FCC regulates the communications industry.
Potential Procedural Changes
Some of procedural changes under consideration would require new legislation (e.g., Sunshine
rules), while others could be achieved through internal FCC action.
Adoption/Release of Orders
The FCC often adopts orders and issues press releases with a summary of the order weeks or even
months prior to releasing the order itself. For example, the Triennial Review, which dealt with
controversial issues relating to competition in the local telecommunications market, and the 800
MHz order, which dealt with controversial and technically complicated issues related to
interference to public safety communications, were released six months and one month,
respectively, after they were officially adopted by the Commission. Some congressional
policymakers have discussed instituting a “shot clock,” which would require the FCC to issue the
actual order within a set time frame after it adopts the order and issues a press release.
Sunshine Rules
Under current “sunshine laws,”15 only two commissioners may meet outside the construct of an
official “open meeting.” While such a requirement, in theory, promotes open discussion of issues
under consideration, in reality, most Commission business is conducted by circulating drafts of
orders for comment. Further, the open meeting requirement may actually hinder discussion
among the commissioners, especially in cases where the disagreement on the draft is significant.
In such cases, it might be possible for further compromise if a third or fourth commissioner could
15
The Government in the Sunshine Act, P.L. 94-409, was passed in 1976. It requires that all federal agencies with units
that work independently of each other hold their meetings in public session. The bill explicitly defined meetings as
essentially any gathering. Many federal agencies, most notably the independent regulatory agencies, including the FCC,
are headed by multiple commissioners. These agencies make most of their decisions through discussions and voting by
the board or commission members. This law was created so that these meetings would be in the public domain for all to
review. Additional information on this law is available at http://www.everything2.com/index.pl?node_id=1161139.
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be involved in the discussion. While the FCC cannot institute such changes without congressional
amendment to current sunshine requirements, it could be useful to study how other agencies,
which do not employ circulation as much as the FCC, work through contentious issues on their
agendas. In the past, criticism has been aimed at the sunshine requirements because they could be
seen as pushing too much power to the staff and not allowing more than two commissioners to be
in the same room at one time.16
Timeliness
Some of the basic work of the FCC affects the everyday function of the telecommunication
industry (e.g., license transfers for mergers and sales and license renewals). Some policymakers
have expressed concern that these processes take too long to complete. Similar to views
concerning more complicated regulatory actions such as rulemaking proceedings, these
policymakers believe there should be a strict time limit on how long these actions may take to
complete. Such time limits, they state, would provide further operational certainty within the
industry.
Enforcement
Enforcement of agency rules is currently the responsibility of the FCC’s Enforcement Bureau.
Previously, enforcement responsibilities were held by a division within each bureau. For example,
enforcement of “slamming”17 was done by a division within what was then the Common Carrier
Bureau (now called the Wireline Competition Bureau). Some policymakers have questioned
whether the current “unified” structure is more effective than the previous “diversified” structure
and have suggested studying the issue.
Potential Structural Changes
While the changes discussed above could be made by the FCC absent congressional action, other,
more significant changes would likely require the passage of legislation. In fact, the FCC has
restructured over the past few years to better reflect the telecommunications industry, but it is still
required to adhere to the statutory requirements of its governing legislation, the Communications
Act of 1934. Title I of the 1934 Act gives the FCC the authority to structure itself in the manner it
believes will allow it to best fulfill its responsibilities; however, from a practical standpoint, the
FCC may not be able to restructure to the extent needed to implement significant changes unless
changes are made to the 1934 Act itself.
Some policymakers have been critical of the FCC and the manner in which it regulates various
sectors of the telecommunications industry—telephone, cable television, radio and television
broadcasting, and some aspects of the Internet, including net neutrality. These policymakers,
including some in Congress, and various interest group and think tank experts, have long called
16
“Stevens to Continue Listening Sessions, But Sees Telecommunications Bill by July,” Daily Report for Executives,
No. 51, March 17, 2005, Page A-1, at http://ippubs.bna.com/IP/BNA/der.nsf/SearchAllView/
96C56942C092C93B85256FC70014F11F?Open&highlight=FCC,SUNSHINE.
17
“Slamming” is the illegal practice of changing a consumer’s telephone service, whether local, intralata service, or
interlata service (including state to state, in state and international long distance), without permission. See
http://www.fcc.gov/slamming/ for additional information.
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for varying degrees and types of reform to the FCC. Some have called for significantly
downsizing the agency by eliminating its regulatory functions and transforming it into an
enforcement agency.18 Others have suggested abolishing the agency and parceling out its
functions to other agencies.19 Others still call for more regulation (e.g., indecency).
18
See, for example, “How to Reform the FCC,” by Randolph J. May, June 21, 2004, http://news.com.com/
How+to+reform+the+FCC/2010-1071_3-5236715.html.
19
For example, under such a scenario, the FCC would no longer be responsible for reviewing and approving mergers
between companies; instead, the Department of Justice would provide anti-trust review. See, e.g., “Why the FCC
Should Die,” by Declan McCullagh, June 7, 2004, at http://news.com.com/2010-1028-5226979.html; and “Law and
Disorder in Cyberspace: Abolish the FCC and Let Common Law Rule the Telecosm,” 1997, information available at
http://www.phuber.com/huber/cl/cl.htm.
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A number of organizations published summaries of the hearing, for example: Bloomberg BNA,
http://dailyreport.bna.com/drpt/7010/split_display.adp?fedfid=29986801&vname=dernotallissues&wsn=499841500&
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“Improving the FCC Process.” On July 11, 2013, the House Committee on Energy and
Commerce Subcommittee on Communications and Technology held a hearing on, “Improving the
FCC Process.” The hearing was held to review two draft bills based on two bills that were passed
by the House of Representatives in the 112th Congress: H.R. 3309, the Federal Communications
Commission Process Reform Act, and H.R. 3310, the Federal Communications Commission
Consolidated Reporting Act. The draft bills are intended to “minimize the potential for procedural
failings and abuse, and to improve agency transparency, efficiency, and accountability.”18 The
committee heard from one panel: Stuart M. Benjamin, Douglas B. Maggs Chair in Law and
Associate Dean for Research, Duke Law; Larry Downes, Internet industry analyst and author;
Robert M. McDowell, former FCC Commissioner and Visiting Fellow, Hudson Institute;
Randolph J. May, President, Free State Foundation; Richard J. Pierce Jr., Lyle T. Alverson
Professor of Law, George Washington University Law School; and, James Bradford Ramsay,
General Counsel, National Association of Regulatory Utility Commissioners.
Nominations. The Senate Committee on Commerce, Science, and Transportation held a hearing
on the nomination of Mr. Tom Wheeler on June 18, 2013.19 As previously noted, the Senate has
not yet held a vote on this nomination.
Legislation
Commission Collaboration
Federal Communications Commission Collaboration Act (H.R. 539, S. 245)
•
Status. H.R. 539 was introduced by Representative Anna Eshoo in the House
Committee on Energy and Commerce on February 6, 2013. The bill was referred
to the Subcommittee on Communications and Technology on February 8, 2013.
This bill is identical to H.R. 1009, introduced by Representative Eshoo in the
112th Congress. S. 245 was introduced by Senator Amy Klobuchar in the Senate
Committee on Commerce, Science, and Transportation on February 7, 2013.
•
Summary. These bills would amend the Communications Act of 1934 to allow,
notwithstanding a specified open meeting provision, three or more
commissioners of the Federal Communications Commission (FCC) to hold a
meeting that is closed to the public to discuss official business if (1) no agency
action is taken; (2) each person present is an FCC commissioner or employee; (3)
for each political party of which any commissioner is a member, at least one
commissioner who is a member of the respective party is present, and, if any
commissioner has no party affiliation, at least one unaffiliated commissioner is
(...continued)
searchid=19900305&doctypeid=1&type=date&mode=doc&split=0&scm=7010&pg=1; Benton Foundation,
http://benton.org/node/147694; and Reuters, http://www.reuters.com/article/2013/03/12/us-usa-fcc-oversightidUSBRE92B17420130312.
18
http://docs.house.gov/meetings/IF/IF16/20130711/101107/HHRG-113-IF16-20130711-SD002.pdf. Changes between
the bills from the 112th Congress and the 113th Congress are highlighted in this document. The draft bills are available
at http://docs.house.gov/meetings/IF/IF16/20130711/101107/BILLS-113pih-FCCConsolidatedReportingAct.pdf and
http://docs.house.gov/meetings/IF/IF16/20130711/101107/BILLS-113pih-FCCProcessReformAct.pdf.
19
The hearing was held in two sessions, online at http://www.c-spanvideo.org/program/ChairNom and http://www.cspanvideo.org/program/ChairNomi.
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present; and (4) an attorney from the FCC’s Office of General Counsel is present.
It would require public disclosure of the meeting, attendees, and matters
discussed.
Cost-Benefit Analysis of Proposed Rulemaking
FCC Analysis of Benefits and Costs (“ABCs”) Act of 2013 (H.R. 2649)
•
Status. H.R. 2649 was introduced by Representative Robert Latta in the House
Committee on Energy and Commerce on July 10, 2013. This bill is also called
the FCC Process Reform Act of 2013.
•
Summary. This bill would amend the Communications Act of 1934 to reform the
FCC by requiring an analysis of benefits and costs during the rulemaking process
and creating certain presumptions regarding regulatory forbearance and biennial
regulatory review determinations.
Independent Agency Regulatory Analysis Act of 2013 (S. 1173)
•
Status. S. 1173 was introduced by Senator Rob Portman in the Senate Committee
on Homeland Security and Governmental Affairs on June 18, 2013.
•
Summary. This bill would authorize the President to require an independent
regulatory agency to: (1) comply, to the extent permitted by law, with regulatory
analysis requirements applicable to other federal agencies; (2) publish and
provide the Administrator of the Office of Information and Regulatory Affairs
with an assessment of the costs and benefits of a proposed or final economically
significant rule (i.e., a rule that is likely to have an annual effect on the economy
of $100 million or more and is likely to adversely affect sectors of the economy
in a material way) and an assessment of costs and benefits of alternatives to the
rule; and (3) submit to the Administrator for review any proposed or final
economically significant rule. It would also prohibit judicial review of the
compliance or noncompliance of an independent regulatory agency with the
requirements of this act.
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Appendix A. FCC-Related Congressional Action—
112th Congress
One hearing was held on FCC oversight and nine bills were introduced that would affect the
manner in which the FCC conducts its business.
Hearings
On February 16, 2012, the House Committee on Energy and Commerce Subcommittee on
Communications and Technology held a hearing on the budget and spending of the FCC.20 FCC
Chairman Julius Genachowski; Mr. David H. Hunt, FCC Inspector General; and Mr. Scott
Barash, Chief Executive Officer of the Universal Service Administrative Company, testified.
Legislation
Cost-Benefit Analysis of Proposed Rulemaking
FCC Analysis of Benefits and Costs Act of 2011 (H.R. 2289)
H.R. 2289 Status. H.R. 2289, also called the “FCC ABCs Act,” was introduced by
Representative Robert Latta in the House Committee on Energy and Commerce on June 22, 2011.
The bill was referred to the Subcommittee on Communications and Technology June 22, 2011.
H.R. 2289 Summary. This bill would require the FCC to include in each notice of proposed rule
making and in each final rule issued by the FCC an analysis of the benefits and costs of such
proposed rule or final rule. It would prohibit any appropriations for the express purpose of
carrying out this act.
Commission Collaboration
Federal Communications Commission Process Reform Act (H.R. 3309)
Federal Communications Commission Process Reform Act (S. 1784)
Telecommunications Jobs Act (S. 1817)
H.R. 3309 and S. 1784 Status. H.R. 3309 was introduced by Representative Greg Walden in the
House Committee on Energy and Commerce on November 2, 2011. It was reported (H.Rept. 11241421)112414)21 on March 19, 2012, and referred to the Senate the next day, where it was read and referred
to the Committee on Commerce, Science, and Transportation. S. 1784 was introduced by Senator
Dean Heller in the Senate Committee on Commerce, Science, and Transportation on November 2,
2011.
H.R. 3309 and S. 1784 Summary. This bill would require the FCC to (1) survey the state of the
marketplace through a notice of inquiry before initiating every new rulemaking; (2) identify a
market failure, consumer harm, or regulatory barrier to investment before adopting “economically
20
Information about this hearing, including a video of the hearing, is available at http://energycommerce.house.gov/
hearings/hearingdetail.aspx?NewsID=9278.
21
http://www.gpo.gov/fdsys/pkg/CRPT-112hrpt414/pdf/CRPT-112hrpt414.pdf.
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significant” rules, as well as demonstrate that the benefits of the regulation outweigh the costs; (3)
make the full text of a rule available to the public for 30 days of comments and 30 days of reply
comments prior to voting on the proposed rule, and issue a final rule within three years; and (4)
set “shot clocks” for orders, decisions, reports, or actions.
S. 1817 Status. S. 1817 was introduced by Senator Dean Heller in the Senate Committee on
Commerce, Science, and Transportation on November 8, 2011.
S. 1817 Summary. This bill is substantially similar to S. 1784.
Federal Communications Commission Collaboration Act (H.R. 1009)
H.R. 1009 Status. H.R. 1009 was introduced by Representative Anna Eshoo in the House
Committee on Energy and Commerce on March 10, 2011. The bill was referred to the
Subcommittee on Communications and Technology on March 15, 2011.
H.R. 1009 Summary. This bill would amend the Communications Act of 1934 to allow,
notwithstanding a specified open meeting provision, three or more commissioners of the Federal
Communications Commission (FCC) to hold a meeting that is closed to the public to discuss
official business if (1) no agency action is taken; (2) each person present is an FCC commissioner
or employee; (3) for each political party of which any commissioner is a member, at least one
commissioner who is a member of the respective party is present, and, if any commissioner has
no party affiliation, at least one unaffiliated commissioner is present; and (4) an attorney from the
FCC’s Office of General Counsel is present. It would require public disclosure of the meeting,
attendees, and matters discussed.
Report Consolidation and Paperwork Reduction
Federal Communications Commission Consolidated Reporting Act (H.R. 3310)
Federal Communications Commission Consolidated Reporting Act (S. 1780)
H.R. 3310 and S. 1780 Status. H.R. 3310 was introduced by Representative Steve Scalise in the
House Committee on Energy and Finance on November 2, 2011, and was reported (H.Rept. 11244322) on April 18, 2012. On May 30, 2012, the bill was passed by the House and it was referred
to the Senate Committee on Science, Commerce, and Transportation, on June 4, 2012. S. 1780
was introduced by Senator Dean Heller in the Senate Committee on Commerce, Science, and
Transportation on November 2, 2011.
H.R. 3310 and S. 1780 Summary. This bill would amend the Communications Act of 1934 to
consolidate the reporting obligations of the FCC to improve oversight and reduce reporting
burdens.
Enhancing the Technical Expertise of the Commission
FCC Technical Expertise Capacity Heightening Act (S. 611)
FCC Commissioners’ Technical Resource Enhancement Act (H.R. 2102)
S. 611 Status: S. 611 was introduced by Senator Olympia Snowe in the Senate Committee on
Commerce, Science, and Transportation on March 17, 2011.
S. 611 Summary. This bill is substantially similar to its companion bill, H.R. 2102, but unlike
22
http://www.gpo.gov/fdsys/pkg/CRPT-112hrpt443/pdf/CRPT-112hrpt443.pdf.
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that bill, S. 611 also includes a requirement that the FCC “enter into an arrangement with the
National Academy of Sciences to complete a study of the technical policy decision making and
the technical personnel at the Commission.”
H.R. 2102 Status. H.R. 2102 was introduced by Representative Cliff Stearns in the House
Committee on Energy and Commerce on June 2, 2011. The bill was referred to the Subcommittee
on Communications and Technology on June 3, 2011.
H.R. 2102 Summary. This bill would amend the Communications Act of 1934 to permit each
commissioner of the FCC to appoint an electrical engineer or computer scientist to provide
technical consultation and to interface with the Office of Engineering and Technology and other
FCC bureaus and technical staff. It would require such engineer or scientist to hold an
undergraduate or graduate degree in his or her field of expertise.
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Appendix B. FCC-Related Government
Accountability Office Studies
The Government Accountability Office (GAO) has conducted two studies since 2008 related to
the operation of the FCC.
FCC: Regulatory Fee Process Needs to Be Updated (August 2012)23
The FCC must, by law, assess annual regulatory fees on telecommunications entities to recover
most or all of its appropriations—about $336 million in fiscal year (FY) 2011. Recently, the
agency stated that it was planning to consider reforms to its regulatory fee process. GAO was
asked to assess the FCC’s:
•
process for assessing regulatory fees among industry sectors; and
•
regulatory fee collections over the past 10 years, and alternative approaches to
assessing regulatory fees.
For this assessment, GAO:
•
reviewed FCC data and documents;
•
interviewed officials from the FCC and the telecommunications industry;
•
identified alternative approaches to assessing regulatory fees; and
•
met with five fee-funded U.S. and Canadian regulatory agencies.
GAO found that the FCC is currently assessing regulatory fees based on obsolete data, with
limited transparency. The Communications Act requires fees to be based on the number of fulltime equivalents (FTE) that perform regulatory tasks in certain bureaus, among other things. The
FCC based its FY2011 regulatory fee assessments on its FY1998 FTE data. It has not updated the
assessment on updated FTE data in part to avoid fluctuations in fees from year to year. FCC
officials stated that the agency has complied with its statutory authority since the statute does not
prescribe a specific time to update its FTE analysis. As a result, after 13 years, FCC has not
validated the extent to which its fees correlate to its workload.
The GAO recommended that:
•
Congress consider whether FCC’s excess fees should be appropriated for FCC’s
use or, if not, what their disposition should be; and
•
the FCC should:
a. perform an updated FTE analysis and require at least biennial updates going forward;
b. determine whether and how to revise the current fee schedule, including the number
and type of fee categories;
23
GAO, Report to the Ranking Member, Committee on Energy and Commerce, and Ranking Member, Subcommittee
on Telecommunications and the Internet, Committee on Energy and Commerce, House of Representatives, “FCC:
Regulatory Fee Process Needs to be Updated,” August 10, 2012, http://www.gao.gov/assets/600/593506.pdf.
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c. increase the transparency of its regulatory fee process; and
d. consider the approaches of other fee-funded regulatory agencies.
The FCC agreed with GAO’s recommendations.
Enforcement Program Management (February 2008)24
According to the GAO analysis of FCC data, between 2003 and 2006, the number of complaints
received by the FCC totaled about 454,000 and grew from almost 86,000 in 2003 to a high of
about 132,000 in 2005. The largest number of complaints related to violations of the do-not-call
list and telemarketing during prohibited hours. The FCC processed about 95% of the complaints
it received. It also opened about 46,000 investigations and closed about 39,000; approximately
9% of these investigations were closed with an enforcement action and about 83% were closed
with no enforcement action. The GAO was unable to determine why these investigations were
closed with no enforcement action because the FCC does not systematically collect these data.
The FCC told GAO that some investigations were closed with no enforcement action because no
violation occurred or the data were insufficient.
The GAO noted that the FCC assesses the impact of its enforcement program by periodically
reviewing certain program outputs, such as the amount of time it takes to close an investigation,
but it lacks management tools to fully measure its outcomes. Specifically, FCC has not set
measurable enforcement goals, developed a well-defined enforcement strategy, or established
performance measures that are linked to the enforcement goals. The GAO stated in its report that
without key management tools, FCC may have difficulty assuring Congress and other
stakeholders that it is meeting its enforcement mission.
The GAO found that limitations in FCC’s current approach for collecting and analyzing
enforcement data constitute the principal challenge the agency faces in providing complete and
accurate information on its enforcement program. These limitations, according to the GAO, make
it difficult to analyze trends; determine program effectiveness; allocate Commission resources; or
accurately track and monitor key aspects of all complaints received, investigations conducted, and
enforcement actions taken.
Author Contact Information
Patricia Moloney Figliola
Specialist in Internet and Telecommunications
Policy
pfigliola@crs.loc.gov, 7-2508
24
GAO, Report to the Chairman, Subcommittee on Telecommunications and the Internet, Committee on Energy and
Commerce, House of Representatives, “FCC Has Made Some Progress in the Management of Its Enforcement Program
but Faces Limitations, and Additional Actions Are Needed,” February 15, 2008, http://www.gao.gov/new.items/
d08125.pdf.
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