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[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

======================================================================

 
      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\
---------------------------------------------------------------------------
    \1\47 U.S.C. Sec.  152.
    \2\47 U.S.C. Sec.  151.
    \3\47 U.S.C. Sec.  254(b)(3).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------

                         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\
---------------------------------------------------------------------------
    \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.
```