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FCC PROCESS REFORM 

HEARING 

BEFORE THE

SUBCOMMITTEE ON COMMUNICATIONS AND 

TECHNOLOGY 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

MAY 13, 2011 

Serial No. 112–48 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

COMMITTEE ON ENERGY AND COMMERCE 

FRED UPTON, Michigan 

Chairman 

JOE BARTON, Texas 

Chairman Emeritus 

CLIFF STEARNS, Florida 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO MACK, California 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

SUE WILKINS MYRICK, North Carolina 

Vice Chair 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

BRIAN P. BILBRAY, California 

CHARLES F. BASS, New Hampshire 

PHIL GINGREY, Georgia 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BILL CASSIDY, Louisiana 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

CORY GARDNER, Colorado 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

HENRY A. WAXMAN, California 

Ranking Member 

JOHN D. DINGELL, Michigan 

Chairman Emeritus 

EDWARD J. MARKEY, Massachusetts 

EDOLPHUS TOWNS, New York 

FRANK PALLONE, JR., New Jersey 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

CHARLES A. GONZALEZ, Texas 

JAY INSLEE, Washington 

TAMMY BALDWIN, Wisconsin 

MIKE ROSS, Arkansas 

ANTHONY D. WEINER, New York 

JIM MATHESON, Utah 

G.K. BUTTERFIELD, North Carolina 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

DONNA M. CHRISTENSEN, Virgin Islands 

SUBCOMMITTEE ON COMMUNICATIONS AND TECHNOLOGY

GREG WALDEN, Oregon 

Chairman 

LEE TERRY, Nebraska 

Vice Chairman 

CLIFF STEARNS, Florida 

JOHN SHIMKUS, Illinois 

MARY BONO MACK, California 

MIKE ROGERS, Michigan 

MARSHA BLACKBURN, Tennessee 

BRIAN P. BILBRAY, California 

CHARLES F. BASS, New Hampshire 

PHIL GINGREY, Georgia 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

BRETT GUTHRIE, Kentucky 

ADAM KINZINGER, Illinois 

JOE BARTON, Texas 

FRED UPTON, Michigan (ex officio) 

ANNA G. ESHOO, California 

Ranking Member 

EDWARD J. MARKEY, Massachusetts 

MICHAEL F. DOYLE, Pennsylvania 

DORIS O. MATSUI, California 

JOHN BARROW, Georgia 

DONNA M. CHRISTENSEN, Virgin Islands 

EDOLPHUS TOWNS, New York 

FRANK PALLONE, J R., New Jersey 

BOBBY L. RUSH, Illinois 

DIANA DEGETTE, Colorado 

JOHN D. DINGELL, Michigan 

HENRY A. WAXMAN, California (ex officio) 

(II) 

(III) 

C O N T E N T S 

Page 

Hon. Greg Walden, a Representative in Congress from the State of Oregon, 

opening statement ................................................................................................ 1 

Prepared statement .......................................................................................... 4 

Hon. Ann G. Eshoo, a Representative in Congress from the State of California, opening statement .................................................................................... 8 

Prepared statement .......................................................................................... 10 

Hon. Henry A. Waxman, a Representative in Congress from the State of 

California, prepared statement ........................................................................... 12 

Hon. Fred Upton, a Representative in Congress from the State of Michigan, 

prepared statement .............................................................................................. 95 

WITNESSES

Julius Genachowski, Chairman, Federal Communications Commission ............ 15 

Prepared statement .......................................................................................... 18 

Answers to submitted questions ...................................................................... 96 

Michael Copps, Ph.D., Commissioner, Federal Communications Commission .. 27 

Prepared statement .......................................................................................... 30 

Answers to submitted questions ...................................................................... 117 

Robert McDowell, Commissioner, Federal Communications Commission .......... 34 

Prepared statement .......................................................................................... 36 

Answers to submitted questions ...................................................................... 120 

Mignon Clyburn, Commissioner, Federal Communications Commission ........... 53 

Prepared statement .......................................................................................... 55 

Answers to submitted questions ...................................................................... 124 

SUBMITTED MATERIAL

‘‘Rolling Back Regulations at the FCC: How Congress Can Let Competition 

Flourish,’’ National Review article by Randolph J. May, dated April 18, 

2011, submitted by Mrs. Blackburn ................................................................... 71 

Letters, dated May 1, May 20, and May 21, 1991, between Mr. Dingell 

and Alfred C. Sikes, Chairman, Federal Communications Commission, submitted by Mr. Dingell .......................................................................................... 75 

(1) 

FCC PROCESS REFORM 

FRIDAY, MAY 13, 2011 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COMMUNICATIONS AND TECHNOLOGY, COMMITTEE ON ENERGY AND COMMERCE, Washington, DC. 

The subcommittee met, pursuant to notice, at 9:32 a.m., in room 

2123, Rayburn House Office Building, Hon. Greg Walden (chairman of the subcommittee) presiding. 

Present: Representatives Walden, Terry, Stearns, Shimkus, 

Blackburn, Bilbray, Bass, Gingrey, Scalise, Latta, Kinzinger, Barton, Eshoo, Markey, Doyle, Matsui, Christensen, Dingell (ex officio), and Waxman (ex officio). 

Staff Present: Gary Andres, Staff Director; Ray Baum, Senior 

Policy Advisor/Director of Coalitions; Allison Busbee, Legislative 

Clerk; Stacy Cline, Counsel, Oversight; Neil Fried, Chief Counsel, 

C&T; Debbee Keller, Press Secretary; David Redl, Counsel, 

Telecom; Roger Sherman, Minority Chief Counsel; Phil Barnett, 

Minority Staff Director; Shawn Chang, Minority Counsel; Jeff 

Cohen, Minority Counsel; and Sarah Fisher, Minority Policy Analyst. 

OPENING STATEMENT OF HON. GREG WALDEN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OREGON 

Mr. WALDEN. I welcome the FCC Chairman and Commissioners 

to our hearing today, and thank you for your thoughtful testimony 

and the time you each took to meet individually with me to discuss 

process reform ideas that could improve the transparency and accountability of the FCC. As I told the Chairman and each Commissioner, and as Ms. Eshoo and I discussed and agreed yesterday, a 

discussion about reforming process is not, and should not become, 

an exercise in partisanship, or serve as a cloak to attack past or 

present commissions or chairmen. 

As I am sure all will notice, only four witness chairs are occupied 

in light of Commissioner Baker’s announcement Wednesday. I 

would like to thank her for her many years of public service not 

only as a Commissioner, but also in helping us complete the DTV 

transition while she was heading up the NTIA. I wish her well in 

her new endeavor. 

Turning to today’s topic, it is our responsibility to review how 

independent agencies to whom we have delegated authority and 

over which we have jurisdiction conduct the public’s business. At 

times the FCC succumbed to practices under both Democratic and 

Republican chairmen that weaken decisionmaking and jeopardize 

2 

public confidence. While Chairman Genachowski and some of his 

predecessors have taken steps to improve process, we have all witnessed how process and procedures of one Chairman can change 

dramatically under another. One FCC is open and transparent, and 

the next is closed and dysfunctional. The time is ripe to codify best 

practices to ensure consistency from issue to issue and Commission 

to Commission. 

Many of my colleagues on this subcommittee have worked on reform ideas in the past, and some have proposed changes in bill 

form. We will consider those as well. To kick things off, here are 

seven items to think about: 

First, the FCC could be required to start new rulemaking proceedings with a notice of inquiry rather than a notice of proposed 

rulemaking. An NPRM presumes regulation is needed. The FCC 

should first examine the state of the relevant markets, services, 

and technologies. Even when regulation may be appropriate, the 

FCC is unlikely to craft as useful a proposal without first gathering 

preliminary information. 

Second, the FCC does not always publish the text of proposed 

rules for public comment before adopting final rules. Providing specific text will allow for more constructive input and a better end 

product. Crafting proposed rules should not be difficult if there is 

a genuine need and the FCC has started with an NOI. 

Third, finite timelines for resolution of matters would be helpful. 

Parties and the public should have some sense of when resolution 

will come. 

Fourth, the FCC now makes information available about which 

draft items are circulating before the Commissioners. The FCC 

could be required to provide additional information, such as a list 

of all unfinished items at the Commission, the date the items were 

initiated, their current status, and expected date of completion. 

Fifth, a bipartisan majority of Commissioners other than the 

Chairman could be allowed to initiate items to prevent a Chairman 

from stopping consensus items. 

Sixth, the President’s Memorandum for the Heads of Executive 

Departments and Agencies, ‘‘Regulatory Flexibility, Small Business, and Job Creation,’’ requires executive agencies to conduct 

cost-benefit analyses before adopting regulations. The memorandum does not apply, however, to independent agencies like the 

FCC. We could remedy that by requiring the FCC to identify actual 

consumer harm and conduct economic, market and cost-benefit 

analyses before adopting any regulation. 

Seventh, the FCC’s transaction review standards are vague and 

susceptible to abuse. Parties with a pending transaction should not 

feel pressure to accept ‘‘voluntary’’ conditions on the deal or to curtail their advocacy in other proceedings. These concerns are neither 

new nor of concern to only one party. Indeed, my good friend from 

Michigan, Chairman Emeritus Dingell, observed in a March 2000 

hearing that there is ‘‘great need to address and to reform the way 

the FCC handles its merger reviews. These are a remarkable exercise in arrogance, and the behavior of the Commission, oft-times by 

reason of delay and other matters, approaches what might well be 

defined as not just arrogance, but extortion.’’ The concerns Mr. DinVerDate Nov 24 2008 11:29 Nov 07, 2011 Jkt 037690 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 F:\112-048 FCC PROCESS REFORM-PDF MADE\112-48 FCC PROCESS REFORM PDF M
3 

gell raised then have been borne out with increasing frequency 

over the last decade. 

To address this, the FCC could be prohibited from adopting any 

conditions unless they are narrowly tailored to any transaction’s 

specific harm. To prevent the FCC from using transactions to commence industrywide changes it could not otherwise adopt, the FCC 

could be required to show statutory authority for the conditions 

outside the transaction review provisions of the act. 

These suggestions are simply meant as conversation starters. I 

look forward to additional suggestions from my colleagues or the 

Commissioners themselves. 

[The prepared statement of Mr. Walden follows:] 

4 

5 

6 

7 

8 

Mr. WALDEN. And on that note, I yield back the balance of my 

time and would recognize the ranking member on the subcommittee, Ms. Eshoo from California. 

OPENING STATEMENT OF HON. ANNA G. ESHOO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Ms. ESHOO. Thank you, Mr. Chairman, and good morning to you. 

And welcome to Chairman Genachowski and the members of the 

Federal Communications Commission. It is good to see you. Today’s 

hearing is an important opportunity to hear from the FCC Chairman and the Commissioners on what is already working well, because there are things that are working well, and where there are 

opportunities to improve the Federal Communications Commission. 

We should work together as a committee to subject ideas and suggestions to healthy scrutiny and determine what reforms can be 

embraced to better serve the public good. That is why we are all 

here, and I think sometimes that gets lost in the complexity and 

the layers of things. We are here to serve the public good. 

Under Chairman Genachowski’s tenure, the Commission has 

taken several key steps to increase openness, transparency, and 

greater interaction with the public. The Spectrum Dashboard, the 

new ex parte rules, the growing use of social media like Twitter 

and Facebook are just a few ways that the FCC has become more 

responsive to the needs of consumers and businesses. But there is 

always much more that can be done, and I welcome steps that will 

ensure that the Commission can operate as a modern, 21st-century 

Federal agency. 

Earlier this year I introduced the FCC Collaboration Act with 

our colleagues Representatives Shimkus and Doyle. This is a simple bipartisan reform measure which would modify the current 

rules which prohibit more than two Commissioners from talking to 

each other outside of an official public meeting. Now, why is this 

important? In an agency that deals with the highly technical issues 

like spectrum and universal service, FCC Commissioners should be 

able to collaborate and benefit from the years of experience that 

each one brings to the table. We should move this bill forward in 

a timely manner and get it done. 

I welcome examining other ideas as well, like the FCC Commissioners’ Technical Resource Enhancement Act, a bill introduced in 

the last Congress that would allow each Commissioner to appoint 

an electrical engineer or a computer scientist to their staff. Similar 

to the Collaboration Act, I am open to looking at other ways to ensure that each Commissioner is equipped to evaluate the complex 

technology and telecommunications issues that the FCC is faced 

with today. 

What would concern me would be proposals which diminish the 

Commission’s ability to protect the public interest and to preserve 

competition in the telecommunications marketplace. The FCC has 

a critical role to play in evaluating proposed mergers, ensuring that 

broadband is universally deployed, and that the market for voice 

and data service is actually competitive. 

To stay in touch with a rapidly changing industry, the FCC, I 

think, should make it part of its core mission to visit companies 

9 

both small and large. Last month Commissioner Copps joined me 

in my congressional district, and we visited several companies 

headquartered in Silicon Valley. We learned a great deal. I extend 

a similar invitation to each Commissioner because I believe these 

types of meetings with entrepreneurs, engineers, and other technology experts are central to understanding the issues you work on 

every day. 

So thank you again for being here today. I really look forward 

to this hearing, and I also look forward to hearing your testimony 

and your fresh thinking. 

I yield back the balance of my time. 

[The prepared statement of Ms. Eshoo follows:] 

10 

11 

12 

Mr. WALDEN. Now we are going to recess for about an hour. We 

think it could take upwards of an hour, so why don’t we plan to 

just reconvene at 10:40. And with that, we stand in recess. 

[Recess.] 

Mr. WALDEN. I want to thank my colleague from Illinois for his 

courtesy in yielding to Mr. Waxman, who has another engagement 

at 11:30. So we will go out of our normal sequence. 

OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. WAXMAN. Thank you, Mr. Chairman. I particularly want to 

thank Mr. Shimkus for his courtesy. 

I would like to welcome Chairman Genachowski as well as Commissioners Copps, McDowell, and Clyburn back to the Subcommittee on Communications and Technology. We understand 

how much effort goes into preparing to testify before Congress, and 

we greatly appreciate your participation. 

The topic of FCC reform is not new to this committee. As one reporter’s account of an October 28, 1999, hearing recalls, quote, ‘‘The 

FCC was criticized for its slow pace of institutional reform, its handling of the e-rate and universal service, its exercise of antitrust 

merger review authority, its delay in completing antitrust merger 

reviews, and its imposition of conditions on mergers,’’ end quote. 

Well, today’s hearing will take us back to the future as we revisit 

many of these same issues. 

At the outset, let me say Chairman Genachowski should be commended for his significant efforts and commitment to improving 

agency operations and boosting employee morale. Since he became 

Chairman, the agency has increased transparency, expanded opportunities for public input, and improved information sharing with 

other Commissioners and the public. 

The agency now includes more details on proposed rules in notices of proposed rulemaking, makes adopted rules available to the 

public more quickly, and has revamped its ex parte rules to enhance openness and transparency. These efforts have been made 

better by the thoughtful bipartisan suggestion of his fellow Commissioners. 

And it is clear that today the FCC is a much better place to 

work. According to the 2010 OPM employee survey, the FCC was 

the most improved agency in the Federal Government. 

I also want to commend subcommittee Chairman Walden for 

looking at this issue in a nonpartisan manner. He has sought input 

from all of the Commissioners and Republican and Democratic 

committee members, and he is committed to explore proposed process reforms in detail before we proceed toward possible legislation. 

If the committee does develop legislation regarding FCC reform, 

we should be guided by a few basic questions about each proposed 

change to ensure that we are promoting smart regulation. 

First, does a proposed change create an undue burden on the 

FCC? When we impose statutory requirements of any kind, we 

need to be wary of burdening the agency with compliance requirements. 

13 

Second, are we undermining agency flexibility to act quickly and 

efficiently in the public interest? If we put prescriptive process requirements in statute, we could end up promoting slower, not faster, decisionmaking. 

And third, are we requiring additional process for valid reasons? 

We must not impose procedural hurdles for their own sake. 

Fourth, are we making procedural changes in an attempt to address outcomes with which we don’t agree? For example, if we limit 

the ability of the agency to negotiate voluntary commitments related to mergers, are we also willing to accept that certain mergers 

may then be rejected outright? Some might view conditions as unfair, while others might see them as critical tradeoffs that allow 

transactions that might otherwise fail to go forward. 

And finally, why the FCC? Are we imposing process reforms on 

the FCC that should apply to all Federal agencies? If not, what is 

our basis for treating the FCC differently? 

I look forward to hearing our panel address these issues and to 

receiving their advice about how to improve the FCC. I look forward to working with you, Mr. Chairman, and I yield back. Any 

other Members wish me to yield to them? If not, I yield back the 

balance of my time. 

Mr. WALDEN. I thank the gentleman for his kind comments and 

look forward to continuing our discussion on these matters, and I 

appreciate your comments on the principles. 

I am now going to yield. We have 5 minutes on our side. We have 

several speakers, so if we could kind of work a minute apiece or 

not much over that. So at this time I would start with Mr. Stearns 

and recognize him. 

Mr. STEARNS. Thank you, Mr. Chairman. I thank you for this 

hearing. I think the ranking member, Mr. Waxman, has pointed 

out that it is—the agency has come a long way. I think it has, but 

in this area of Internet technology, I think there is still a long way 

to go forward. And I think there is a litany of necessary improvements, and I think this hearing will show that. 

For example, the merger review process, I think, needs to be examined. Although the FCC internal shot clock to act on mergers is 

6 months, XM/Sirius took over 16 months, Mr. Chairman, and 

Comcast/NBCU took nearly 11. So I think in a rapidly evolving 

market here, uncertainty can sometimes create havoc for markets, 

and deadlines for FCC action coupled with ensuring merger reviews are handled in a transparent way is important without endless strands of nonmerger-specific conditions attached, I think, 

would provide future certainty. 

So the bottom line, I think the agency could improve, and I hope 

we can move forward. 

Thank you. 

Mr. WALDEN. I now recognize the gentleman from Illinois, Mr. 

Shimkus. 

Mr. SHIMKUS. Thank you, Mr. Chairman. 

First of all, we want to thank Commissioner Baker for her time, 

and hopefully we can expeditiously get her replaced in the Commission. I know that is everyone’s desire. 

14 

Chairman, we appreciate the movement on reform. It is something that with the new technology, new age that is important, and 

we know there are steps being made in that direction. 

And I have enjoyed my time working with Commissioner Copps 

and, of course, Anna Eshoo. And on the sunshine bill, it just 

doesn’t make sense. Maybe three can’t speak together, but to have 

two not be able to speak of the Commissioners—Chairman Walden 

and I spoke on the floor. I think it is something that we can move 

expeditiously. Of course, I am not the Chairman, so I will defer to 

his wisdom and guidance, but based upon the last election, even in 

the cycle I said, I think the public is tired of comprehensive, big 

bills. We ought to move things that we can move clearly, concisely 

and defend, and maybe we will be there at the end if other things 

can’t be agreed upon. But I have been—the Chairman has agreed 

to take a look at what we are doing and hopefully merge those with 

the other things that are not also in agreement and produce a good 

bill. 

So with that I thank him, and I will probably ask some questions 

on that if I am not on a plane. And I yield back. 

Mr. WALDEN. I recognize the gentlelady from Tennessee, Mrs. 

Blackburn. 

Mrs. BLACKBURN. Thank you, Mr. Chairman, and welcome to all 

of you. 

Procedurally I do have some questions about license transfers, 

indecency complaints, and FCC voting procedures. But I think the 

biggest problem that I have and what I want to discuss with you 

today is what I see is your overreach, going beyond your statutory 

authority, and you do it without consequence. 

And the Chairman and I have discussed our disagreement on net 

neutrality and regulation of the Internet, but I think there is also 

overreach to other things like data roaming and agencies scheming, 

which I think is a clever scheme, to socialize our mobile networks. 

And I think that as you look at privacy, and we will talk about this 

a little bit today, that the FCC is moving into areas where it 

should not be with issues like privacy. 

So I am one of those that think it is time to maybe rein the agency in a little bit and have a discussion about what your structure 

should look like. So thank you for being here to participate. 

I yield back. 

Mr. WALDEN. Mr. Bass or Mr. Gingrey, do you have any comments? 

Mr. BASS. If I could make a brief comment. 

I want to thank all four of you for being here today. And I am 

not sure whether I am going to be able to stay long enough to ask 

the question, but I was hoping that the Chairman would comment 

on this GPS, slash—you know, the spectrum issue, as to whether 

or not it would be appropriate for that decision to be one that the 

Commission itself makes rather than be done through rule. There 

are significant potential issues associated with this which need to 

be aired, and I am hopeful that the Commission will have a process 

that will allow for both sides in this debate to have their views considered and assure that a proper decision is made by the Commission. 

Thank you, Mr. Chairman. 

15 

Mr. WALDEN. The gentleman yields back the time. All time on 

our side of the aisle has been yielded back. Same on the other. 

So with that, I would like to welcome the Chairman of the Federal Communications Commission, Mr. Genachowski. We appreciate your testimony and your work at reform, and we welcome 

your comments this morning, sir. Thank you. 

STATEMENT OF JULIUS GENACHOWSKI, CHAIRMAN, FEDERAL 

COMMUNICATIONS COMMISSION; MICHAEL COPPS, PH.D., 

COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION; 

ROBERT MCDOWELL, COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION; AND MIGNON CLYBURN, COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION 

STATEMENT OF JULIUS GENACHOWSKI 

Mr. GENACHOWSKI. Thank you, Chairman Walden, Ranking 

Member Eshoo, members of the committee. Thank you for holding 

this hearing on FCC process reform. 

At the FCC we are focused on harnessing the power of communications technology to benefit all Americans, grow our economy, 

create jobs, enhance our competitiveness, and unleash innovation. 

On my first day as Chairman, I told the FCC staff that whether 

we can achieve these goals depends on how our agency works. That 

is why the FCC’s processes and operations are important, as Chairman Walden has said, and that is why I have made it a priority 

to improve the way the FCC does business. 

Our approach to reform rests on a number of core principles: efficiency and fiscal responsibility; accountability and transparency; 

reliance on facts and data, on the power of technology to improve 

agency operations, and on the benefits of collaboration. 

To drive our reform efforts, I appointed a Special Counsel on 

FCC Reform immediately after my confirmation, and I hired a new 

Managing Director with experience running a multibillion-dollar 

private-sector PNL to help lead our reform efforts. 

My fellow Commissioners have been vital partners in this effort. 

Commissioner Copps made FCC reform a priority when he was acting Chairman. Commissioner McDowell has raised issues with me 

on which we have taken positive action, and Commissioner Clyburn 

has taken a lead and has helped us make real progress on our 

process and relationships with the States. 

In the past 2 years working together we have increased efficiency, increased transparency, increased collaboration, and increased the effectiveness of the FCC. I am proud of our progress, 

and I am pleased that in the past 2 years, 95 percent of the Commission’s actions have been unanimous and bipartisan. 

My written testimony includes many examples of the reforms implemented in the last 2 years. As John Wooden said, We shouldn’t 

confuse activity with accomplishment, so I would like to use my 

limited time to highlight some of the real results of our reform efforts. 

In the last 2 years, we have reduced the time between the vote 

on a Commission decision and its public release from an average 

of 14 days to 3 days, and to 1 day in most cases. We have increased 

the number of notices of proposed rulemakings that publish the 

16 

text of proposed rules from 38 percent to 85 percent. We have 

eliminated many outdated regulations. Two months ago we identified 20 sets of unnecessary data-collection requirements to be eliminated, and just yesterday the Commission identified and eliminated an additional 5 data requirements. 

We have acted on over 95 percent of transactions within the 180- 

day shot clock period. With respect to major transactions, we have 

cut down the review time by more than 100 days. We have reduced 

our broadcast application backlog by 30 percent and our satellite 

application backlog by 89 percent. We have broken down internal 

silos at the FCC and increased internal communications. We have 

reformed our video relay service, a reform that has already saved 

taxpayers about $250 million. We are saving millions of dollars by 

harnessing technology to improve the agency’s operations including 

by consolidating multiple licensing systems and reducing data centers. 

A leading commentator said the Commission has gone from one 

of the worst to one of the best in its use of online tools to serve 

the public and all stakeholders. Just yesterday we relaunched 

FCC.GOV after receiving and responding to broad input on our 

beta launch. We have launched a public Spectrum Dashboard. A 

few weeks ago we had the first joint blog post in FCC history with 

all FCC Commissioners focusing on the importance of reforming 

the Universal Service Fund. 

We have held more than 85 public forums with active participation from Commissioners, and for the first time have made staffled public workshops a routine part of Commission work. We have 

adopted reforms of our ex parte process to increase transparency, 

reforms of our voting process to increase efficiency, and reforms of 

our filing process to increase effectiveness. 

Our National Broadband Plan has been lauded as ‘‘a model for 

other nations’’ and has been praised for its process and its substance. 

OPM’s governmentwide survey of Federal employees identified 

the FCC as the most improved place to work in the Federal Government. I thank Mr. Waxman for mentioning that. And just last 

week the FCC team that worked on the National Broadband Plan 

was nominated for a Service to America Medal, the most prestigious independent award for America’s civil servants. 

I am proud of what we have achieved. The Commission is working effectively. We are moving in the right direction. And I thank 

my fellow Commissioners, as well as the FCC’s employees, who 

have been instrumental in making this possible, as well as the 

many members of this committee who have over the years and in 

my time offered very constructive suggestions to improve our processes. 

Of course, there is more we can do to improve performance, and 

I am committed to continuing our efforts at reform. Making the 

FCC work is important because the FCC’s mission is important. It 

matters to our economy, to our global competitiveness, and to the 

quality of life of all Americans. 

I look forward to working with the subcommittee on these important issues. I thank you, and I look forward to your questions. 

Mr. WALDEN. Thank you, Chairman, we appreciate it. 

17 

[The prepared statement of Mr. Genachowski follows:] 

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22 

23 

24 

25 

26 

27 

Mr. WALDEN. And we will get that high-technology ringing device 

off over there in the corner. We are also streaming—if you notice 

on the video screens here, all of your data is streaming over your 

faces, too. It is part of what happens in repacking if you don’t get 

it right. So great to be the technology. 

Anyway, we want to go now to the senior member of the Federal 

Communications Commission by length of service, I will only approach it that way. We appreciate your service to the country and 

on the Federal Communications Commission, Mr. Copps, and we 

welcome your testimony and comments. 

STATEMENT OF MICHAEL COPPS 

Mr. COPPS. Thank you very much. Good morning, Chairman Walden, Ranking Member Eshoo, members of the subcommittee. Thank 

you for holding this important meeting on FCC reform and for inviting me to share some thoughts with you. 

As Chairman Genachowski has explained, and many of you have 

already noted, we have had real and measurable accomplishments 

toward FCC reform under this current Commission, and I am 

proud of those. 

I know there are many other ideas and proposals you will want 

to discuss this morning, and I am happy to comment on any of 

them, but in my brief time now, I want to mention just three ideas 

that I find especially important. 

First and foremost, please allow the Commissioners to talk to one 

another. That seems a strange request in a town fueled by dialogue 

and debate when in FCC world, when three or more of us are ever 

together outside of a public meeting, we must get lockjaw. We cannot mention one iota of policy or substance, float one idea for resolving a crisis, or suggest any alternative path for addressing a 

problem. This has not only irked me for years, but troubled me 

greatly, because it is like sending a football team into a huddle and 

prohibiting the players from talking to one another. That is the 

FCC under the closed-meeting rule: the silent huddle. 

So the first thing I want to do this morning is to applaud Congressman Anna Eshoo and Congressman John Shimkus and Congressman Mike Doyle for the introduction of their FCC Collaboration Act. This proposed legislation is a modest, commonsense, and 

much-needed reform to modify the closed-meeting rule that prohibits more than two Commissioners from ever talking to one another unless it is in a public meeting. I have spoken about the need 

for this reform for many years before the subcommittee. I am hopeful this will be the year when legislation is finally enacted. 

I have seen first-hand for the pernicious and unintended consequences of this prohibition, stifling collaborative discussions 

among colleagues, delaying timely decisionmaking, discouraging 

collegiality, and shortchanging consumers and the public interest. 

Elected representatives, Cabinet officials, judges, even the cardinals of my Catholic Church have the opportunity for face-to-face 

discussion before making important issues. I see no reason why the 

FCC Commissioners should not have the same opportunity to reason together, especially when balanced, as this legislation is, with 

specific safeguards designed to preserve transparency. If it is good 

28 

enough for Congress, the courts, and Holy Mother Catholic Church, 

it ought to be good enough for the FCC. 

Reaching agreement on the complex issues pending before us is 

difficult enough in the best of circumstances, but it is infinitely 

more so when we cannot even talk about them among ourselves. 

Each of the five Commissioners brings to the FCC special experiences and unique talents that we cannot fully leverage without 

communicating directly with one another. 

This act is a prudent, balanced proposal that recognizes the benefits of permitting the Commission to do its business collectively, 

while maintaining full transparency of the process. Enactment of 

this legislation would, in my mind, constitute as major a reform of 

Commission procedures as any that I can contemplate. It doesn’t 

just protect the public interest, it advances the public interest. And 

it is number one on my list. 

My second suggestion is let us get the FCC out of Washington 

and on the road more frequently; I mean the full Commission, all 

of the Commissioners. We live too much in an isolated, inside-theBeltway culture. We see the usual players, make the same speeches every year, and attend the same functions and events. And that 

is fine up to a point, but if it comes at the expense of letting America see the FCC and letting the FCC see America, it is not so good. 

Our deliberations would surely and greatly benefit from taking the 

FCC outside Washington, DC, and put it on the road so it could 

directly hear from average Americans. 

The Commission holds an open meeting each month, and I see 

no reason why for at least few months out of a year we couldn’t 

conduct our meetings in places like Bend, or Benton Harbor, or 

Boston, or Austin, or Mountain View. In communications, every 

American is a stakeholder, and each of us is affected in so many 

important ways by our media policies, spectrum allocations, and 

universal service, just to name a few big-ticket items on our agenda. 

The idea here is not just that people would see the Commission, 

but that the Commission would see the people and gain a greater 

understanding of the impact of our decisions on American consumers. It is just better communications, and, after all, Communications is our middle name. 

Third, and this is related to what I just suggested, we need to 

encourage more input into our deliberations by what I have called 

our nontraditional stakeholders. Although we hear often, sometimes every day, from the big interests with their armies of lawyers 

and lobbyists, we hear much less from everyone else, all of those 

consumers and citizens who don’t have a lobbyist or lawyer in town 

to represent them, but who nevertheless have to live with the consequences of what we do in Washington. 

I have devoted considerable time during my years at the Commission to open our doors to the full panoply of American stakeholders, including minorities, rural Americans, the various disabilities communities, Native Americans, consumer and advocacy organizations, and also educational institutions. We were designed to be 

a consumer protection agency. Let us get the skinny from those 

who consume what you and I do in Washington, DC. 

29 

Another area where we need to see more progress and partnering 

is in the Federal, State, local governmental relationship. I believe 

more of this kind of interaction was envisioned and encouraged by 

the Telecommunications Act of 1996. As we embark upon the formidable challenge of revamping universal service and intercarrier 

compensation, it is vitally important that we are sharing data, 

sharing ideas and sharing responsibilities with our colleagues at all 

levels of government. 

I commend the Chairman for moving us forward in this regard 

and also my colleague Commissioner Clyburn for the excellent 

work she has done to reinvigorate our partnerships with the States 

as Chair of the Federal-State Joint Boards. We need always to be 

thinking about how to build upon the experiences and knowledge 

that exist in such abundance at all levels of government. 

Let me say that this present Commission has made many and 

impressive, important strides to increase transparency, to work collaboratively with all stakeholders, and to hold workshops both inside and outside the Nation’s Capital. The Chairman’s statement 

recounts many of these, and I commend him for the progress that 

has been made. 

My point is this work is never done, and there is much more that 

we can still do. There are years, decades of ‘‘inside-the-Beltwayitis’’ to make up for, and this demands some fundamental reorientation of the Commission. We can talk about deadlines, shot clocks, 

what is an NOI versus an NPRM, and those are all relevant matters to discuss. But above them all is giving consumers and citizens 

confidence that their voices are being heard, their suggestions 

given credence, and knowing that their Commission exists to serve 

the public interest, a term that, by my rough count, appears some 

112 times in the Telecommunications Act. That is our lodestar, and 

we need to keep our fix on that lodestar every minute of every day. 

Thank you for convening this conversation, and I look forward to 

your comments and suggestions for the betterment of the Good 

Ship FCC. 

Mr. WALDEN. Mr. Copps, thank you, as always, for your comments and suggestions. 

[The prepared statement of Mr. Copps follows:] 

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Mr. WALDEN. I go now to Commissioner McDowell. We welcome 

you. We appreciate your thoughtful addition to this discussion, and 

we welcome your testimony. 

STATEMENT OF ROBERT MCDOWELL 

Mr. MCDOWELL. Thank you, Chairman Walden, and Ranking 

Member Eshoo, all members of the committee. And I also see a familiar face sitting behind Mr. Stearns over there, Brooke Ericson, 

my former law clerk. And now that you are my overseer, I really 

am hoping I was a nice boss. 

But as you know, Congress created the FCC in 1934, almost 77 

years ago. In that year Babe Ruth signed a contract for an eye-popping $35,000 a year. Donald Duck made his movie debut, the average new house cost less than $6,000, the entire Federal budget was 

only $6.5 billion, and a gallon of gas cost 10 cents. And, my, how 

times have changed. 

Although a few amendments have been made to the laws of the 

Commission—the laws the Commission operates under since then, 

many of the regulatory legacies from 1934 remain in place. The 

technologies we take for granted in today’s communication’s marketplace were unimaginable to even the most creative of science fiction writers when existing mandates were written. 

Against this backdrop it is fitting for this committee to examine 

ways to reform the FCC to make it more efficient and relevant to 

modern realities. I operate under the philosophy that Congress 

should tell us what to do and not the other way around, but given 

your solicitation of suggestions, I will start by raising several possible statutory changes to improve the FCC before moving on to 

possible procedural reforms that we could effectuate. 

Twenty-first-century consumers want to have the freedom to 

enjoy their favorite applications and content when and where they 

choose. Whether such material arrives over coaxial cable, copper 

wires, fiber or radio waves is of little consequence to most consumers so long as the market’s supply of products and services satisfies demand. Legacy statutory constructs, however, have created 

market-distorting legal stovepipes based on the regulatory history 

of particular delivery platforms. While consumers demand that 

functionalities and technologies converge, regulators and business 

people alike are forced to make decisions based on whether a business model fits into Titles 1, 2, 3, 6, or none of the above. As Congress contemplates FCC reform, it may want to consider adopting 

an approach that is more focused on preventing concentrations and 

abuses of market power that result in consumer harm. 

Furthermore, ideas from outside the Commission also deserve serious consideration. For instance, Randy May, the president of the 

Free State Foundation, has called for building on the deregulatory 

bent of sections 10 and 11 of the Telecom Act of 1996 by adding 

an evidentiary presumption during periodic regulatory reviews that 

would enhance the likelihood of the Commission reaching a deregulatory decision. 

With respect to procedural ideas, almost 2 1/2 years ago, I sent 

to my colleague, then-Acting Chairman Mike Copps, a public letter 

detailing some ideas to improve our agency’s effectiveness. He and 

I agree on many reform ideas, such as modernization of the cumVerDate Nov 24 2008 11:29 Nov 07, 2011 Jkt 037690 PO 00000 Frm 00038 Fmt 6633 Sfmt 6633 F:\112-048 FCC PROCESS REFORM-PDF MADE\112-48 FCC PROCESS REFORM PDF M
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bersome and outdated sunshine rules that prevent more than two 

of us from discussing Commission business outside of a public 

meeting. Later, in July of 2009, after Julius Genachowski became 

a Commission colleague as well, I sent him an updated letter with 

additional ideas and suggestions within existing statutory constructs. Time does not allow me to enumerate all of them, so I have 

attached these letters as part of my testimony and respectfully request to be included in the record. 

I am delighted to report that some reforms have already been implemented. For example, many stale or ill-advised Commission action items awaiting votes contained on what we call the circulation 

list have been weeded out. A portion of the backlog of the 1.4 million broadcast indecency complaints that were defective on their 

face have been dismissed. And the FCC now relies more on electronic internal communications rather than paper deliveries. 

Going forward, I am hopeful that other FCC reform suggestions 

will be carried out as well. I have long called for a full and public 

operational, financial, and ethics audit of everything connected to 

the FCC, including the Universal Service Administrative Company, 

also known as USAC. The erroneous payment rate in the High 

Cost Fund alone has been far too high, and we may need to make 

fundamental changes to fix the problem. 

Chairman Genachowski has made good progress in ensuring that 

notices of proposed rulemaking contain actual proposed rules. I applaud his efforts. I would encourage improving the process further 

by codifying this requirement in our rules. 

The Commission should include proper market power analyses to 

justify new rules in notices of proposed rulemaking. If a market 

power analysis is not appropriate, the FCC should explain why. 

When regulated entities are under scrutiny for alleged violations 

of our rules, such as broadcasters being investigated for airing indecent material, often they are not notified in a timely manner of 

the investigation or its effects on other matters before the Commission, such as license renewals. Similarly, entities are not always informed of when they have been cleared of wrongdoing. More transparency and better communication in this area would not only be 

a matter of appropriate due process, but simple good government 

as well. 

To promote collegiality and efficiency we could improve the productivity of all Commissioners’ offices by routinely sharing options 

memoranda prepared by our talented career public servants. All 

Commissioners should be able to benefit from the same advice and 

analysis enjoyed by our many chairmen over the years. And perhaps we could call this our ‘‘No Commissioner Left Behind’’ program. 

Many, many, many more ideas abound, and I look forward to discussing all suggestions and ideas with you, and thank you again 

for the opportunity to appear before you today, and I look forward 

to your questions. 

Mr. WALDEN. Commissioner McDowell, thank you for your suggestions. 

[The prepared statement of Mr. McDowell follows:] 

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49 

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Mr. WALDEN. Now we, for our final witness, turn to Commissioner Clyburn. We appreciate the time you have taken to engage 

in this matter with me and others on this committee, and we look 

forward to your testimony. 

STATEMENT OF MIGNON CLYBURN 

Ms. CLYBURN. Thank you, Mr. Chairman, for that and for inviting me to participate in today’s hearing. It is my pleasure to see 

you, Ranking Member Eshoo and the other members of the subcommittee. I respectfully request at this time that my full statement be included in the record. 

My colleagues and I work in an environment with many moving 

parts. As with any Federal agency, there are checks and balances 

in place, and the regulations and decisions we consider and adopt 

receive thorough consideration and incredible scrutiny. The Commission staff works diligently on each item with the objective of delivering a finished product that is cogent, precise, and effective. 

Such complexity often does not lend itself to rocket dockets and express reviews, yet the Commission has worked hard to streamline 

its processing of many items. 

Other proceedings, however, require significant examination that 

takes time and an incredible amount of staff resources. Thus, our 

consideration of many rulemakings and adjudications can endure 

over weeks, months, and in some instances years. Part of the reason why many of our deliberations take so much time is because 

of our robust and all-inclusive public comment mechanism. 

During our consideration of a rulemaking item, the Commission 

listens to any and all comers, petitioners, adverse parties, interested participants, the public, and so on. So criticisms about the 

FCC being sealed off from the public are inaccurate, I believe, and 

I am proud of our process and the number of public comments that 

stem from it. 

We have made huge strides in putting an enhanced public face 

on the Commission under Chairman Genachowski’s leadership. 

Through Reboot.FCC.gov, our external advisory committees, public 

forums, and the FCC’s numerous workshops, we welcome, expect 

and, quite frankly, need voices and opinions from outside of our 

walls to provide feedback, criticism, and counsel. This is definitely 

not your grandfather’s FCC. 

Regarding our much-maligned sunshine rules, I have a particular 

interest and potential tailor-made revisions to the way in which we 

interact. The introduction of H.R. 1009 would be a significant improvement in our deliberative process, and I thank Ms. Eshoo, Mr. 

Shimkus and Mr. Doyle for this bill. Recently, NARUC, the national body representing State commissioners, praised the introduction of this legislation and offered its support for it. 

Allow me to bring me to your attention the fact that NARUC did 

note the need for one minor change to the legislation in order to 

improve its effectiveness with respect to the Federal Commissioners’ participation on the Joint Boards and Conference. The 

Joint Boards and Joint Conference have Federal and State representation, and each is involved in the Commission’s policymaking 

process with respect to their subject-matter focus in the areas of 

universal service, jurisdictional separations, and advanced services. 

54 

Under current law, three or more Commissioners may not participate in a Joint Board or Conference meeting unless the meeting is 

open to the public and has been properly noticed. 

Currently Federal Commissioners must take turns participating 

in our in-person meetings and conference calls. This has made it 

extremely difficult for a constructive, and effective and efficient deliberations when it comes to Joint Board-recommended decisions. 

NARUC’s letter makes the same observation, and I join support of 

its request that H.R. 1009 include language to extend the proposed 

Sunshine Act’s exemption to cover FCC Commissioners who participate on the Joint Boards and Conference. 

I believe that it is critical that the FCC collaborate with the 

States on telecommunications and broadband policy. It is my belief 

that the understanding of local issues must be fully considered, and 

State commissioners know these needs best. 

When I came to the FCC, my primary goal was to improve the 

communications and collaboration between our agency and the 

States. Fortunately, Chairman Genachowski offered me the position of Chair of all of the Joint Boards and Joint Conference. With 

his support I believe we have revitalized and strengthened the relationships with the States through these bodies. 

Thank you again, Mr. Chairman, for another opportunity to appear before the committee. I hope that today’s discussions will 

highlight any areas of concern that the members of this committee 

may have, be they process systems, agency rules, or any other 

methods of practice we use. 

Mr. WALDEN. Thank you, Commissioner Clyburn. We appreciate 

your testimony and that of your colleagues on the FCC. 

[The prepared statement of Ms. Clyburn follows:] 

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Mr. WALDEN. I want to start with a question regarding the Commission’s agenda. I understand the Chairman is agency CEO, controls the Commission’s agenda. I have a question, though, that a 

Chairman could prevent the FCC from addressing important issues 

even when a bipartisan majority of the Commissioners believes 

that moving forward is necessary. 

So I would like each of you to answer, do you believe that a bipartisan majority of the Commissioners other than the Chairman 

should be allowed to work with the agency staff to move an item? 

Commissioner—we will start with the Chairman. 

Mr. GENACHOWSKI. Well, having a collaborative process has been 

important to me from the start, as I mentioned, and I appreciate 

the collaborative way that all of us have worked together. I can’t 

imagine a situation—— 

Mr. WALDEN. I am going to keep you kind of short here because 

I have got a series of questions. But again, this isn’t about you, and 

it is not about this Commission, because things have changed. They 

can change again. 

So the question is should you be able to be allowed to work with 

the agency staff to move an item? Should the other Commissioners? 

Mr. GENACHOWSKI. I think the statute now is correct on this. I 

think any organization needs a chief executive responsible for the 

prompt—— 

Mr. WALDEN. So it is a no. 

Commissioner Copps. 

Mr. COPPS. Yes, I do. I believe the three Commissioners should 

have the power to call up an item, to delete an item from an agenda, and to edit any and all documents. 

Mr. WALDEN. Commissioner McDowell. 

Mr. MCDOWELL. This is another boring chapter in the long, 

multivolume set known as the Copps-McDowell alliance. I agree 

with my colleague to the right of me, ironically. 

And so, yes, we actually, in all seriousness, in the fall of 2008 

could have resolved a lot of thorny questions on universal service 

reform, intercarrier compensation because there were four Commissioners, two Republicans, two Democrats, in agreement, but the 

Chairman at the time did not move the item. 

Mr. WALDEN. Thank you. 

Commissioner Clyburn. 

Ms. CLYBURN. We are the sum total of our experiences, so in that 

regard, I have healthy engagement, and at this time I don’t see any 

need for any revisions in that manner. 

Mr. WALDEN. OK. 

Mr. GENACHOWSKI. Could I add just one other thing? Ninety-five 

percent of what we do is unanimous. Historically this hasn’t been 

a problem except for, as far as I can tell, one anomaly. And so I 

personally think that changing the statute to address one anomaly 

when it hasn’t been a problem, I can’t imagine an incidence when 

it wouldn’t be three Commissioners for a step that we couldn’t 

work out together. 

Mr. WALDEN. Commissioner Copps? 

Mr. COPPS. This reminds me of the old story from history when 

Abraham Lincoln was meeting with his Cabinet to discuss a very 

64 

serious issue, and he took a vote, and there were three noes from 

the Cabinet. And then he voted, and he said, the ayes have it. 

Mr. WALDEN. That is why I thought I would ask the Commissioners, not the Chairman, and those who had been there during 

other times. Appreciate it. 

Commissioner McDowell, you mentioned in your written testimony that the FCC should include proper market power analyses 

to justify new rules or else explain why such analyses are inappropriate. Could you elaborate on your views, and would you agree 

that performance measures for regulators should be built into the 

process for adopting new regulations so that the public can monitor 

whether the purported benefits for regulation actually play out? 

Mr. MCDOWELL. Sure. One assumes that if a new rule is going 

to go in place, it is because something is not working in the market. So why is there not something working in a market? So a market power analysis, I think—and a proper market power analysis, 

I think, is warranted. Now, there may be good reason why a market power analysis is not needed, but the Commission should then 

be required to explain why it is not doing a market power analysis. 

Mr. WALDEN. Commissioner Copps, do you care to comment on 

that? 

Mr. COPPS. Well, I think that is one argument. I suppose the 

other side of the argument is that that is why we have notice and 

comment and the ability of all parties to explain the advantages 

and disadvantages of a situation. 

I think we should be doing basic economic analysis. I think in all 

the cases that I have seen under this Commission, we have probably done more of that than we have done in any of the other Commissions that I have been a part of. Whether you put that in a 

package and call it market power analysis and differentiate it from 

all of that other stuff, I don’t know. I would vote to have a little 

more flexibility than that. 

Mr. WALDEN. Commissioner Clyburn? 

Ms. CLYBURN. I would be open to this type of engagement and 

conversations, but to my knowledge, a lot of this, whether it is labeled so or not, is happening within the bureaus. So I think we are 

having the benefit of some of the engagement even if it is not called 

that. 

Mr. WALDEN. Chairman Genachowski. 

Mr. GENACHOWSKI. As a general matter this is what we do. The 

APA requires us to consider all arguments presented to us, and we 

certainly get arguments about market issues. Affirmatively it is 

something we can and should do. There are cases when the reasons 

stacked are different. If it is public safety regulations, disabilities, 

rules, et cetera, it doesn’t make sense. But in any situation where 

what we are doing is designed—where it would make sense, we do 

it; we do it as a matter of practice, and the APA would require us 

to do it. 

Mr. WALDEN. My time has expired, and I turn to my colleague 

from California, Ms. Eshoo, for 5 minutes. 

Ms. ESHOO. Thank you, Mr. Chairman. 

I thank the Chairman of the Commission, and the Commissioners, for your testimony and your ideas. I want to congratulate 

you for what you have already done. It really should not be skipped 

65 

over. I took a look at your new Web site last night. I think it is 

hot. I really do. I recommend it to others as well. 

First of all, is there anyone on the panel here today that does not 

support the legislation for improving the decision-making process 

at the agency, the legislation that myself and Mr. Shimkus and Mr. 

Doyle have introduced? 

Mr. GENACHOWSKI. I would just emphasize two things if I could. 

One is the importance of making sure—— 

Ms. ESHOO. First, tell me yes or no. 

Mr. GENACHOWSKI. No, I am supportive of it as long as it preserves the transparency goals underlying the sunshine act originally. And I think the joint board issue is one where I would certainly support a measure that would take care of that issue. It is 

really a conflict between two statutes that doesn’t make sense. 

Ms. ESHOO. In California we have had the Brown Act for years 

and years that has, I think, really served the public interest very 

well. So I appreciate that. But it is good to know that there is 

across-the-board support. 

To Chairman Genachowski, in response to my posthearing questions from our February 16 meeting, you indicated that a proceeding is underway to determine whether the FCC’s special access 

rules are ensuring that the rates, the terms, and the conditions for 

special access are just and reasonable. Are there procedural 

changes in the way that the FCC operates that could speed up this 

process? 

Mr. GENACHOWSKI. I am not sure there are. We have heard 

many complaints about the special access area. When we started 

looking into it in my time there, we realized that the data that the 

Commission had was really—provided no real basis to actually 

make a judgment or support actions. 

But we are in the middle of a process now to collect the data we 

need. I think that is proceeding on schedule. I will go back and look 

at whether there are procedural changes that would be helpful, but 

I think we have the procedural flexibility to do what we need to 

do. 

Ms. ESHOO. Again to the Chairman, I understand that there is 

often resistance from industry to provide the data necessary to fulfill the Commission’s goal of serving the public interest. What are 

the roadblocks to obtaining this data and how can we assist you 

in ensuring that you have the data needed to preserve competition 

and consumer choice? 

Mr. GENACHOWSKI. It is an important topic because we are all 

committed to having the FCC be an agency that is about facts and 

data. You can’t be an agency about facts and data without data. 

What we have tried to do over the last 2 years, with the help of 

the committee, is look both at old data collection requirements that 

are outdated, that can be eliminated, and also making sure that we 

are getting the data that we need in this new world. So by removing data, we are showing, I hope, establishing credibility that we 

are focused only on what we really need to do. 

Ms. ESHOO. Do you need us to help you do that? 

Mr. GENACHOWSKI. I am not sure if we need rules changes, but 

I think your interest in making sure that we have the data that 

we need and supporting us in this effort is helpful. 

66 

Ms. ESHOO. Good. Does the Commission collect statistics on wireless network quality and reliability? For instance, do you have data 

relative to dropped calls? 

Mr. GENACHOWSKI. On dropped calls, we actually built and distributed an app to begin to get information from consumers. 

Ms. ESHOO. So you are just starting that? 

Mr. GENACHOWSKI. So we are just starting that. It is a new 

thing. I agree, it is an area we should look at. 

Ms. ESHOO. Good. Commissioner Copps mentioned in his testimony the value of holding field hearings, and I know that there 

were to examine the Comcast-NBC merger. Do you plan to hold 

similar field hearings on AT&T and T–Mobile? 

Mr. GENACHOWSKI. In general, we have done a number of field 

hearings. We will continue to do them. We will be in Nebraska next 

week on universal service reform. We have been in many States. 

Ms. ESHOO. Do you plan to do them on this gigantic merger? 

Mr. GENACHOWSKI. We haven’t announced the hearing schedule, 

so if I can get back to you once we do that. 

Ms. ESHOO. I would urge you to do it because the public needs 

to come to these hearings and understand what is at stake for 

them and ask you questions about what is going into this decision. 

They are the ones that are going to be affected by it. Here inside 

the Beltway, it is like gossip city, who said what and how fast it 

is going and how slow and why and all of that. And it is sexy inside 

the Beltway. But for people out there, they want to know how is 

this going to affect my rates. 

Mr. GENACHOWSKI. I agree. 

Ms. ESHOO. These are becoming expensive utility bills. It is important for you to hit the road. 

Thank you, Mr. Chairman. 

Mr. WALDEN. Thank you, Ms. Eshoo. 

Just one quick question. There is nothing in statute that precludes you from doing the public hearings you’ve talked about; 

right? You don’t need that from us? 

Mr. GENACHOWSKI. I don’t think so. 

Mr. WALDEN. I turn now to Mr. Shimkus. 

Mr. SHIMKUS. Thank you, Mr. Chairman. 

Thank you for coming. I am bouncing between two committee 

hearings, one with the EPA on rules and regs. I want to make sure, 

this is on process reform, and sometimes we will get jumbled in on 

what is going on and think a process reform may solve it, but we 

really want to stay on what can we do to transparency and the like. 

Commissioner Clyburn, I appreciated the example, and we get email, too, from NARUC on extending that, and I think that is a 

good idea and something that should be included. But it gave me 

a question for the Commissioners, and Chairman, you can weigh in 

too, if you would like; the Commissioners specifically highlighted 

our piece of legislation as being beneficial. 

Can you give me an example how that would be helpful? Especially Commissioner Copps, you have been around a long time. You 

probably have a few stories, like we did just prior. Give us some 

real-world application why you think this would be helpful. 

Mr. COPPS. Well, a joint board example like Commissioner Clyburn was talking about, we will have a conference call and ComVerDate Nov 24 2008 11:29 Nov 07, 2011 Jkt 037690 PO 00000 Frm 00070 Fmt 6633 Sfmt 6633 F:\112-048 FCC PROCESS REFORM-PDF MADE\112-48 FCC PROCESS REFORM PDF M
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missioner Clyburn and Commissioner Baker and myself are each 

members of that board, but we cannot be on at the same time. So, 

say Commissioner Baker is on for the first 10 minutes. Then we 

say, well, Commissioner Baker, you have to get off; Commissioner 

Copps is getting on, and then it goes back and forth. So you really 

interfere with and retard the discussion. 

But even going beyond that, I think there is something to be 

gained by the synergies of having five individual people chosen 

with five different skill sets, vetted by the White House, confirmed 

by the Senate, to come to the Commission and to just have them 

sit down in a room together. I think some of the personality conflicts that we have had in previous Commissions, and I don’t want 

to overdramatize them or anything like that, but I think things 

would have gone better and been more easily resolved and more of 

the spirit of compromise and collegiality would have attended those 

issues had we been able to do that. I don’t understand why we are 

not able to do that. 

Mr. SHIMKUS. Mr. McDowell. 

Mr. MCDOWELL. Yes, I agree. So to go back to that fall of 2008 

example with the universal service intercarrier compensation 

where four Commissioners—again, two Republicans, two Democrats—agreed on some fundamental reforms, it would have been 

nice if all five of us could have gotten into a room, or three of us, 

to try to figure out why that wasn’t moving. So I think it would 

speed the process. 

I think it would be more efficient, as Commissioner Copps said, 

it would breed more collegiality. And keep in mind, our work product ultimately is public and appealable to the courts if someone 

doesn’t like it, so transparency is still there. 

Mr. SHIMKUS. Commissioner Clyburn? 

Ms. CLYBURN. Coming from a joint board perspective, you have 

already heard how inefficient the process, the current process is. To 

give the public some assurances or some more comfort in this, 

when we talk about the joint board and joint conference, joint 

boards and joint conference experience, the recommended decisions 

from these bodies are not final. They are recommended decisions, 

and they are presented to the FCC, and then at that point there 

is a notice, the process of noticing goes into place. Then and only 

then, after that is exhausted, that comes to the FCC for a decision. 

So these are not final. Recommended decisions are not final decisions. They go through processes, so the public should feel some 

comfort. But this disconnect that we have is something that does 

not lend itself for a good exchange. 

Mr. SHIMKUS. Mr. Chairman, do you want to weigh in? 

Mr. GENACHOWSKI. I agree that the joint board situation is a 

problem that should be fixed. 

Mr. SHIMKUS. Another process reform, and it is kind of the ageold argument that people raise capital, assume risk, and need some 

certainty whether to either produce or to withdraw from the market. Some people have proposed issues like shot clocks as far as 

time lines, minimum review periods after the close of a comment 

cycle. Does anyone have to talk about that? And I only have 34 seconds, so do it quickly. 

68 

Mr. GENACHOWSKI. I think in general, shot clocks can be an effective management tool. They are one of the tools that we use. I 

think preserving flexibility is important; but I think it can be an 

effective management tool. 

Mr. COPPS. I would agree. I think sometimes shot clocks, such as 

accompanied the Comm Act that we are looking at now, do mandate that we take action. Again I think this Commission is doing 

a good job generally on this score, so I don’t know that we would 

have to mandate it unless the problems got a lot worse. I do agree 

that business needs certainty, but I think that comes more from 

the substance of the rules than the process, and having a clear idea 

of the rules that they are going to operate under. 

Mr. SHIMKUS. Commissioner McDowell? 

Mr. MCDOWELL. I think shot clocks can be very helpful. I have 

long advocated them. I do agree with the Chairman that we need 

to preserve some flexibility. Things can go wrong. Sometimes we 

get a shot clock from Congress, with the Comm Act or the Telecommunications Act of 1996; but internally, we probably could use 

more. 

Ms. CLYBURN. In principle I am not in disagreement with shot 

clocks; but I think they should be treated as guidelines and not be 

allowed to rule the process. 

Mr. SHIMKUS. I thank you all. I yield back the balance of my 

time. 

Mr. WALDEN. We now go to Dr. Christensen for the next 5- 

minute round. 

Mrs. CHRISTENSEN. Thank you, Mr. Chairman, and welcome to 

you, Mr. Chairman, and the other Commissioners. From the outset, 

I want to make it clear that I know my question regarding FCC’s 

review of mergers and transactions is an issue of authority and not 

one of process. It is clear that Congress created a strong public interest mandate for the FCC. As Commissioner Copps noted, the 

words ‘‘public interest’’ appear 112 times in the Communications 

Act. The FCC has clear statutory authority under the act to conduct its public interest evaluations of mergers and transactions, 

and the courts have conferred great leeway for the agency to fulfill 

these public interest duties. 

Commissioner McDowell, I wanted to ask you whether you agree 

with the statement made by Commissioner Baker in March that 

the FCC has ‘‘clear statutory obligation to closely scrutinize transactions and reject those that violate the Communications Act, FCC 

rules, or fail to serve the public interest’’? 

Mr. MCDOWELL. Yes, I agree with that. 

Mrs. CHRISTENSEN. Does everyone agree with that statement? 

Mr. GENACHOWSKI. Yes. 

Mrs. CHRISTENSEN. Chairman Genachowski, why do you believe 

that the FCC should have jurisdiction over transactions? Why 

wouldn’t DOJ or FTC review be sufficient? 

Mr. GENACHOWSKI. Well, the Communications Act makes it clear 

that the FCC must approve transfers of communications license 

and find that they are in the public interest in order to do so. Communications is something of importance to every American. It is a 

sixth of our economy. They involve complex technical issues where 

an expert agency is important, other goals and values that are enVerDate Nov 24 2008 11:29 Nov 07, 2011 Jkt 037690 PO 00000 Frm 00072 Fmt 6633 Sfmt 6633 F:\112-048 FCC PROCESS REFORM-PDF MADE\112-48 FCC PROCESS REFORM PDF M
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shrined in the Communications Act, and that has been our system 

for many, many years and it is important to make it work effectively. 

Mrs. CHRISTENSEN. Some have complained that in reviewing 

some of the mergers, the FCC has imposed conditions that are not 

transaction-specific. For example, during the review of the 

Comcast-NBC Universal transaction, conditions involving 

broadband adoption and diversity were imposed. Do all of you believe that those conditions are merger-specific? Mr. Chairman? 

Mr. GENACHOWSKI. Yes. If I can add one word, the statute requires the FCC to make a determination that a transaction is in 

the public interest. So it is not surprising that companies, as they 

come to the FCC and file for approval, make the case for why a 

transaction is in the public interest and point to specific public interest benefits. With respect to some of the benefits, given the potential harm of some transactions, it becomes important to make 

sure those commitments are binding. 

Mrs. CHRISTENSEN. Commissioner Copps? 

Mr. COPPS. Yes, I agree very much that conditions on transactions are perfectly within the purview of the Commission. I know 

there is an argument whether they should be company-specific or 

products of industrywide rulemaking. But that is a hard line to 

draw. Some of these transactions, like Comcast and NBC, are paradigm shifting. They change the whole industry, so it is very difficult to make a clear division, like some people would have us 

make. 

Mrs. CHRISTENSEN. Commissioner McDowell? 

Mr. MCDOWELL. I do not believe conditions should be imposed 

that are not merger-specific. I think in that particular transaction, 

there were a number of conditions or voluntary commitments that 

were not merger-specific. They might be evidence of good corporate 

citizenship, or evidence that they wanted to try to sweeten the deal 

for FCC’s approval, but some of them had nothing to do with the 

merger itself. 

Mrs. CHRISTENSEN. Commissioner Clyburn? 

Ms. CLYBURN. I agree in terms of the public interest standard 

that the FCC is basically mandated to do that. We are the experts 

in this space. We not only are required to look at competition, 

which is solely DOJ’s purview, but we have to look at the public 

benefits, and that includes a number of benefits as well as harms, 

and we have to weigh those, and conditions are sometimes warranted to answer those. 

Mrs. CHRISTENSEN. Let me just ask a question of Chairman 

Genachowski in my last few minutes. 

You talked about holding a public forum on reducing barriers to 

broadband and band buildout, and we really commend all of you 

for the forums that you have held. These events are important to 

the successful implementation of States and territories, for example 

like the U.S. Virgin Islands. 

Are there some barriers that you have identified to broadband 

buildout and is there technical assistance that FCC would provide 

to overcome any of those barriers? 

Mr. GENACHOWSKI. There are barriers. Some of the barriers that 

we see are barriers that slow down infrastructure companies, wired 

70 

and wireless, from building out quickly or that add costs. We took 

some steps in this area around tower siting; shot clock, to come 

back to the shot clock concept, we adopted one. We took steps in 

this area also with respect to pole attachments which will help reduce costs and lower the cost of broadband buildout. 

We are very interested in hearing from industry and stakeholders on other barriers that would be appropriate to address. 

One that has been brought to our attention are challenges around 

co-locating antennas on existing towers and unnecessary delays in 

that process. So that is something we are looking into now 

Mrs. CHRISTENSEN. Thank you. 

Mr. WALDEN. I turn to the gentlelady from Tennessee, Mrs. 

Blackburn, for 5 minutes. 

Mrs. BLACKBURN. Thank you, Mr. Chairman. 

Commissioner McDowell mentioned an article by Randolph May, 

and, Mr. Chairman, I would like to submit that article for the 

record. I agree with the Commissioner. I read it and I thought it 

was very insightful. 

Mr. WALDEN. Without objection. 

[The information follows:] 

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72 

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Mrs. BLACKBURN. Chairman Genachowski, I want to ask you, 

looking at the process you followed on net neutrality, I want to ask 

you about a Fortune magazine article, and you have affirmed in 

that article two different times that net neutrality rules were already in effect; so are these rules in effect? 

Mr. GENACHOWSKI. I think I may have been making the point 

that on a bipartisan basis, before I got to the Commission, the 

Commission had enforced net neutrality rules against companies. 

Rules were just part of the problem. 

Mrs. BLACKBURN. I hate to interrupt you, but I think what the 

reporter said, that means they are law. These are rules that have 

been written and are in effect. And your response was ‘‘yes.’’ 

What is interesting to me is that the FCC hasn’t published the 

order in the Federal Register yet. So my question would be: What 

justification could there be for a 6-month wait or a delay unless the 

FCC is seeking further delay and legitimate rules by the courts or 

by Congress? 

Mr. GENACHOWSKI. I understand your question now. The rules 

are not in effect yet. They require publication in the Federal Register, and they have to go through an OMB process and a Paperwork Reduction Act process. These are not our processes. We are 

complying with the processes as quickly as we can. 

Mrs. BLACKBURN. Yes, I agree, and I think it would be appropriate to get our policies published in the Federal Register before 

we start implementing new rules, especially since the impact that 

those rules are going to have are, in my opinion, going to be damaging to the innovation and growth of the Internet. 

Let’s look at the Comcast-NBCU order. It states that the 

Comcast and NBCU shall comply with all relevant FCC rules 

adopted by the Commission in GN docket No. 09–191, and I am referring to the FCC’s Open Internet order and its unique application, this specific, on the merger conditions. Does the FCC believe 

that even if a court overturns the FCC’s decision, that Comcast and 

Comcast alone will still be subject to these ex-judicial rules, and 

where does the FCC get that authority? 

Mr. GENACHOWSKI. The answer is yes. The authority comes from 

the language obliging us to make a public interest determination 

in approving transactions. This was a merger-specific enforceable 

commitment that came out of the fact that this was a merger between the largest broadband company in the country, one of the 

largest content companies. We heard from many businesses saying 

that a specific harm from this transaction could be favoritism of 

some content over others. 

Mrs. BLACKBURN. Does the FCC have a responsibility to answer 

to the article 3 courts that by law review the FCC decisions? 

Mr. GENACHOWSKI. Of course. 

Mrs. BLACKBURN. OK. Let’s talk about copyright protection. I 

support it, and I have supported voluntary cooperative efforts 

among the ISPs and content community to address infringement. 

And given the language specifically in paragraphs 107 and 111 of 

your open Internet order, what assurances can the FCC give to the 

ISPs that they can enter into voluntary agreements with copyright 

owners to address these infringements online without running 

afoul of the net neutrality order? 

74 

Mr. GENACHOWSKI. My recollection is that the order says pretty 

much that. That the rules apply only to lawful content, not unlawful content like stolen intellectual property, and that voluntary 

agreements to make enforcement of IP laws effective is something 

that is not prohibited by the rule. 

Mrs. BLACKBURN. I have to tell you, I think it would be helpful 

for the FCC to provide the companies assurances that they have 

reasonable discretion to address copyright infringement, and I hope 

that you will do that. 

Mrs. BLACKBURN. I only have 19 seconds left. I had another question about broadband pricing, but I will submit that for a written 

response. 

I yield back. 

Mr. WALDEN. We will get an answer from each Commissioner. 

Mr. Doyle has been kind enough to yield to the chairman emeritus of the Energy and Commerce Committee, Mr. Dingell. 

Mr. DINGELL. Mr. Chairman, I thank you for your courtesy, and 

I thank you for the recognition. And I want to thank my good 

friend from Pennsylvania. There are many, many courtesies I have 

had at his hand. 

Commissioners, welcome to the committee. I want to express 

some distress at the delay in publication of the Commission’s Open 

Internet order in the Federal Register. I understand, and clearly 

so, that this delay is more appropriately attributed to the Office of 

Management and Budget than to the FCC. 

Moreover, I wish to note for the record that the order was adopted on December 21, 2010, and the order’s text was released to the 

public 2 days later on December 23. I want to commend the Commission for this display of transparency. 

There is, however, another type of delay that deprives the public 

of a thorough understanding of the Commission’s decisions, and it 

does I think afford a marvelous opportunity for rascality. This is 

the delay that can occur between the time when the Commissioner 

adopts the report and order, and the date on which the text of that 

report and order is released to the public. A delay of this sort enables the staff to make revisions to the order in the dark of the 

night. It enables petitioners to seek and obtain tweaks in the agency’s language. It is a decision-making that is subject to the charge 

that it is potentially the source of perhaps dishonest decision-making that ought not exist at the Commission. 

This type of delay has been the subject of this committee’s attention in the past. As the Chairman and I were discussing yesterday, 

some 20 years ago in May of 1991, I engaged in an exchange of letters with the then-Commission Chairman Al Sikes. 

Mr. Chairman, I ask unanimous consent that copies of that correspondence be entered at this point in the record. 

Mr. WALDEN. Without objection, so ordered. 

[The information follows:] 

75 

76 

77 

78 

79 

80 

81 

82 

Mr. DINGELL. With this history in mind, I am going to direct this 

question to you, Chairman Genachowski, and I am going to ask you 

if you would please do exactly what I asked Chairman Sikes to do 

in an earlier time. Would you please provide this committee with 

a list of the Commission’s decisions where the text of the decision 

was released more than 30 days after the Commission announced 

its decision, together with the best explanation you can make for 

the delay beginning on January 1, 2010? Would you do that for us, 

please? 

Mr. GENACHOWSKI. Yes, I will. I am happy to report that period, 

we have closed in the last 2 years, that period from an average of 

14 days to 3 days. In most cases, release is 1 day after Commission 

adoption of the order. 

Mr. DINGELL. Thank you. 

Now, I recognize that the 30-day period which was referred to in 

my questions is arbitrary and it does not respond to either statute 

or regulation. It does seem to me that a delay of 30 days or more 

does provide opportunity for impropriety, and I would urge the 

Commission to comment on this opinion for the record, especially 

in view of all of our desires to improve the transparency at the 

Commission and this committee’s ability to conduct rigorous oversight. 

Now, in the case of decisions whose release is delayed for 30 days 

or more, does the Commission commit at this time to providing this 

committee with a written explanation of the delay and projected 

date for the release? 

Mr. GENACHOWSKI. Yes. 

Mr. DINGELL. Now, I want to make it clear, we have to make a 

selection here between two situations, the first of which is where 

the Commission releases the decision and there is a delay between 

the time that the matter is then made final. There also is the situation—and this I know afflicts the Commission substantially, and 

that is, you have sent things over to the Office of Management and 

Budget which duly forgets that you are an independent agency of 

the Congress and insists that these matters be held up over whatever qualm the Administration may have on the matter. 

So in any event, Mr. Chairman and members of the Commission, 

I thank you. 

Mr. Chairman, I thank you for your courtesies to me. I yield back 

the balance of my time. 

Mr. WALDEN. I thank the gentleman for his questions and his 

willingness to work on these issues to improve the process at the 

FCC. 

Now I turn to the gentleman from Florida, Mr. Stearns, for 5 

minutes. 

Mr. STEARNS. Thank you, Mr. Chairman. 

Chairman Genachowski, this is a question for you, if you can 

recollect this. I think we have already talked about the Commission’s backlog. How many petitions or applications are currently 

pending before the Commission? 

Mr. GENACHOWSKI. That is a number I don’t have in my head. 

I will get it for you. 

Mr. STEARNS. Can you guess? Give an approximate range? When 

we do financial disclosure, we have a range. 

83 

Mr. GENACHOWSKI. There are many small ones. The number is 

in the thousands, not in the tens. 

Mr. STEARNS. Do you have staff behind you that might know? 

These staff, that is what they are paid for. 

Mr. WALDEN. They are texting somebody right now. 

Mr. GENACHOWSKI. We will get an answer within 5 minutes. 

Mr. STEARNS. OK. How many of these are more than 6 months 

old? 

Mr. GENACHOWSKI. That is another question I can’t answer off 

the top of my head. 

Mr. STEARNS. OK. How many are more than 2 years old; 5 years 

old? Do you think any of them are older than 2 years? 

Mr. GENACHOWSKI. It is possible some of them are. 

Mr. STEARNS. Any over 5 years? 

Mr. GENACHOWSKI. I don’t know, but it is possible. 

Mr. STEARNS. We have heard that parties with a transaction before the FCC sometimes feel pressure to curtail their advocacy in 

unrelated proceedings. I guess my question is: Fundamentally, do 

you agree that every constituency should be free to advocate before 

the Commission without any pressure? 

Mr. GENACHOWSKI. Absolutely. Can I say one word on the previous question? 

Mr. STEARNS. Yes. I hear all the time that people are totally intimidated by you folks, and I can understand why, because a decision by you folks is not just a hundred-dollar decision, it is billions. 

So you have this much power. They come back to me, a lot of them 

are intimidated, so they want to be free to be an advocate before 

the Commission without pressure. 

Mr. GENACHOWSKI. On this question, the Commission has an obligation to base each decision that it makes on the issues before it, 

on facts and data. We are all very committed to that. 

On the previous issue, there is an area for reform here that I 

would like to mention briefly, which is that a lot of the backlog 

comes from applications for review of relatively routine bureau decisions that are made. Because of the APA, sometimes it is thought 

that it requires the Commission to do its work all over again in 

order to address it in advance of litigation. 

We have been exploring some reforms here to speed this up and 

to help eliminate the backlog that relates to applications for review 

from bureau orders. That is something I look forward to working 

on with you and the committee. 

Mr. STEARNS. Commissioner McDowell, you touched on in your 

opening statement, and I looked at some of your letters you have 

written in the past, the FCC’s transaction review standards I think 

are vague and sometimes susceptible to abuse. For example, parties with a pending transaction should not feel pressure to accept 

voluntary conditions on the deal. The Commission can also leverage 

its merger review process to adopt conditions that it could not otherwise impose through a transparent and public rulemaking. 

My question for you is: How can we narrow the Commission’s authority to simply address these concerns? 

Mr. MCDOWELL. That can come through a statutory change, as 

has been pointed out today already. There is a large, ambiguous 

public interest standard by which we review mergers. But if a statVerDate Nov 24 2008 11:29 Nov 07, 2011 Jkt 037690 PO 00000 Frm 00087 Fmt 6633 Sfmt 6633 F:\112-048 FCC PROCESS REFORM-PDF MADE\112-48 FCC PROCESS REFORM PDF M
84 

utory provision were added to say any conditions or voluntary commitments extracted from the merging companies should be specifically tailored to consumer harm that arises out of the merger, and 

perhaps look into maybe sunsetting them once market conditions 

obviate the need for any further regulation. 

Mr. STEARNS. Mr. Chairman, do you want to add to that at all? 

Mr. GENACHOWSKI. In the Communications Act, Congress has 

placed an important responsibility on the FCC to make a public interest determination, to find that a proposed transaction is in the 

public interest. That is something we take very seriously. I think 

all Commissioners do. It is understandable why companies would 

suggest the public interest reasons for a transaction. Sometimes 

there are specific potential harms that emerge from a transaction 

that in order to approve the transaction, it is necessary to impose 

conditions. This has happened under Democrats and Republicans 

at the FCC. 

Mr. STEARNS. My last question, Mr. Chairman, is to Commissioner McDowell. Again, I am concerned that the FCC has been 

regulating in areas without first clearly identifying its own authority to act. From voice obligations, net neutrality, to broadband outage reporting, the FCC has fallen into the habit of proposing rules 

without first tying those rules to the authority given to it by the 

Communications Act. I know every bill I drop, I have to show constitutionally that that bill complies with the Constitution. What 

best practices would you recommend going forward based on what 

I just told you? 

Mr. MCDOWELL. The Commission in areas where I have dissented certainly has made legal arguments justifying its legal authorities. I can’t think of an item that didn’t have a legal argument. 

But as lawyers know, there are legal arguments that are colorable, 

and there are legal arguments that are winnable. This is fine 

grades of distinction sometimes. It is hard to say how do you keep 

the FCC to act within its authority other than read the statute and 

the plain meaning of it. 

Mr. STEARNS. Mr. Chairman? 

Mr. GENACHOWSKI. Two points. In the last few years, the FCC 

record in court on statutory challenges has been overwhelmingly 

positive. I don’t remember the number of the top of my head, but 

I will get it for you. But overwhelmingly successful. 

The second thing is, when there are colorable questions of authority, we seek comment on that in the notice and comment stage. 

We did it yesterday in looking at updating our network outage 

rules to protect the safety of the public in event of emergencies. 

There is a colorable question about authority. We will be looking 

at that carefully in the record. 

It is vital that we move forward on public safety issues like that, 

working together with the committee. If we don’t think we have the 

authority, we will come to you and ask for the authority. But getting a public record and asking our terrific legal team to focus seriously and honestly on the authority issues is what we try to do. 

Mr. WALDEN. I thank the gentleman from Florida. 

I now turn to the gentleman from Pennsylvania, Mr. Doyle. 

Mr. DOYLE. Thank you, Mr. Chairman. Thank you for holding 

this hearing. 

85 

Welcome to the members of the Commission. I have had the opportunity to work with each and every one of you, and I have appreciated your hard work and dedication. All of you are very good 

members of the Commission. 

Commissioner Copps, I know your term is expiring this year and 

I just want you to know that if I were the benevolent dictator of 

the universe, as scary as that thought may be, your term would 

have no expiration date. Thank you for your service to the Commission. You have been one of the best ever. 

Now, Chairman Genachowski, I can’t pass up the opportunity 

while I have got you all here. As you know, just recently the House 

and Senate passed, and the President signed into law, the Local 

Community Radio Act last year. And this is legislation that is 

going to open up the airwaves for hundreds of new low-power radio 

stations across the country, including community radio stations in 

cities like Pittsburgh and all across the United States. 

Mr. Chairman, I know the Commission is working on it, but I 

want to make sure that the draft rules are going to come out by 

the end of the spring. Could you give us a sense of timing on this? 

Mr. GENACHOWSKI. First of all, congratulations on the passage of 

the legislation. Bipartisan, very important, and we are working to 

implement it as quickly as possible because we think it is a real 

achievement and will really help the local communities. Our media 

bureau is working on it. I will redouble my efforts to make sure 

that it happens as quickly as possible. 

Mr. DOYLE. I want to piggyback on some questions that Ms. 

Eshoo talked about with special access to. I have always thought 

that name ‘‘special access’’ is a misnomer. It should be called ‘‘critical access.’’ I note that your broadband plan agrees with that. I 

have real concerns about the affordability of these lines as report 

after report comes out, whether it is the GAO or the national 

broadband plan or others, that indicate that the sellers of these 

lines are continuing to overcharge their competitors. 

Quite frankly, the FCC, it has been rather frustrating to get you 

to address this question. It has taken quite a long time to come to 

a decision on the matter, and I am just trying to understand what 

is causing this delay, and when do you think that you will obtain 

the information that you need to finally bring a vote to the Commission? Please don’t tell me ‘‘as soon as possible.’’ Give me something more definitive than that. 

Mr. GENACHOWSKI. My frustration was that when I arrived at 

the Commission and we started to look into this issue, the paucity 

of data that the FCC had was very troubling. There is no point to 

doing something in this area that is not based on a record, that is 

not based on facts and data, and that wouldn’t be upheld in court. 

We also didn’t want to put out a broad data request that, one, 

would be burdensome on industry; but, even more important, 

would not be manageable for us because it is a very complex area. 

And I think our team did a fantastic job working in a focused 

way to identify the data that we would need to be able to make 

a determination on whether there is an issue that requires us to 

act; and if so, what an appropriate action to take would be. 

We are still in that process. We have completed the first round 

of data coming in. The staff is analyzing that. We will continue to 

86 

work with you on it. But I agree with with you on the importance 

of this issue, and we are working very diligently on it. 

Mr. DOYLE. By next year? By 2030? 

Mr. GENACHOWSKI. Well before that. 

Mr. DOYLE. Well before 2030? 

Mr. GENACHOWSKI. I agree with you. I can’t say because we are 

analyzing the data, and I don’t want to prejudge it. I want the staff 

to do its job as fast as it can because it is an important issue that 

goes to competition and broadband deployment. 

Mr. DOYLE. Do any other Commissioners have a comment on special access? 

Mr. COPPS. I think it is important for us to get to a final resolution. When you are talking about a market that is approaching 

tens of billions of dollars a year, and you add in there however 

many years this has been pending, and you think are companies 

going out of business, is competition being disrupted, it instills in 

me the same sense of urgency that you have. 

Mr. MCDOWELL. Absolutely. I have been at the Commission almost 5 years, and it is sort of like Groundhog Day on special access. We are coming up on the fourth anniversary of Congressman 

Markey’s letter to the Commission insisting that we have some resolution by September of 2007. It is now 2011. 

Really what we need, as I have been saying for almost 5 years 

now, is cell site by cell site, building by building map with price, 

terms, and conditions of all providers of special access, competitive 

providers as well as incumbent providers. This isn’t as hard as it 

seems. The DOJ gathered this data in 2005 during the Bell long 

distance mergers, and it is really not as daunting as it sounds. 

Legally there might be an issue whether you can compel certain 

companies to provide that data, and that is where the problems 

have been. A lot of companies know that they don’t have to provide 

the data; it might be competitively sensitive, things of that nature. 

But if you go to an industry trade show, business-to-business trade 

show, they are buying and selling special access circuits from each 

other. So all of the sales guys have this data. It is not that hard 

to find. But that would give us, let’s get a real-time snapshot of 

what does the market actually look like. I think where there is 

more competition in a market, we ought to deregulate. And if there 

is not enough competition, then we need to figure out what to do. 

Mr. DOYLE. Commissioner Clyburn? 

Ms. CLYBURN. I agree with my colleagues. One of the first meetings that I took as a Commissioner dealt with special access. When 

these same parties see me, they look at me and we don’t even have 

to exchange words. So I agree with you about the urgency. And especially being from a rural State, I agree that this is a significant 

barrier for enhanced service. I am looking forward to continuing to 

working with the Chairman in order to get resolution here. 

Mr. DOYLE. Thank you. 

Thank you, Mr. Chairman. 

Mr. WALDEN. Thank you for your work on these issues, Mr. 

Doyle. 

We are going to do a second round of questions. 

There are a couple of things I would like to go through. First, the 

top seven best hits of our memo, some of the ideas we kicked out 

87 

there, and I would draw your attention to the staff majority memo, 

if you have it. If not, if you can give us your feedback on these 

seven items. 

From the outset, I am not trying to lock you into stupid restrictions, but I am trying to figure out is there a way to put in the 

statute good things, some of which Chairman Genachowski has already enacted as Chairman or you have codified in your rules, so 

regardless who is chairing this or regardless of the personality dynamics that may occur, 5, 8, or 10 years from now, the good processes are there for the public? So I throw that out. 

So the notion, and I know this doesn’t work well, but yes or no, 

the concept with flexibility built around all of these, trying to go 

to notices of inquiry before NPRMs; does that make sense? Does 

that not make sense? Commissioner Clyburn? 

Ms. CLYBURN. Yes or no, hmm. I think when the Commission 

needs more information, yes, it is warranted. But we are in the information exchange business. We have public notices and the like, 

and so we get a lot of information. When we need more information, then yes. But in the case where we don’t, where we have sufficient information, I think it would delay the process. 

Mr. WALDEN. Commissioner McDowell? 

Mr. MCDOWELL. Yes, with flexibility that can’t be abused. 

Mr. COPPS. Yes, usually; but always remember there are crises 

and emergencies, terror attacks and things that demand expeditious action when you can’t do that. 

Mr. GENACHOWSKI. I would say as a general rule, we do it. There 

are many exceptions. It might be a statutory mandate. It might be 

further notice. It might be court remand. It might be that we have 

enough information to proceed. I am not sure that a statutory 

change is required. 

Mr. WALDEN. That is fair. 

Publishing the proposed rules, you don’t always publish a text for 

public comment before adopting the public rules. Should the proposed rules always be published ahead? Chairman Genachowski, 

yes or no? 

Mr. GENACHOWSKI. That has been our policy. We have gone from 

38 percent to 85. 

Mr. WALDEN. Any reason not to go to 100? 

Mr. GENACHOWSKI. There are some cases where it might be a 

form or it might be a further notice where the rules are already 

out, or it might be that we are seeking comment on a third party’s 

proposals. Our practice is that we always need a good reason in 

order not to publish proposed rules. 

Mr. COPPS. You know, sometimes people don’t get serious about 

we are doing something until you get beyond, well into the NPRM 

stage, and then they get serious and tell you what they like. So it 

is not always practical to do that. New data comes in, and again 

I would say flexibility for emergencies and things like that, but I 

would commend the Chairman on the tremendous difference we 

have made in making sure that we do now over 85 percent of the 

time. 

Mr. WALDEN. Mr. McDowell. 

Mr. MCDOWELL. Yes, with flexibility that can’t be abused. 

Mr. WALDEN. Commissioner Clyburn. 

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Ms. CLYBURN. Yes, flexibility that takes into account any type of 

public comments. 

Mr. WALDEN. Got it. What about minimum comment periods? 

Statutory minimums for comment reply cycles, does that make 

sense? Ms. Clyburn? 

Ms. CLYBURN. I think if there are statutory obligations involved, 

they might be problematic. With our video relay, Video Accessibility Act, we had a 6-month window. So if you had certain obligations, that might impede that progress. So again, flexibility and 

dexterity are my two words for the day. 

Mr. WALDEN. Commissioner McDowell? 

Mr. MCDOWELL. Yes, with flexibility that can’t be abused. 

Mr. WALDEN. Commissioner Copps? 

Mr. COPPS. The same response. 

Mr. GENACHOWSKI. I agree as well. The real issue is making sure 

that the Commission pursues best practices, and we look forward 

to working with you on that. 

Mr. WALDEN. What about shot clocks? Parties and the public 

should have some sense of when resolution would come. Hard shot 

clocks or shot clocks as a report card mechanism, gives you the 

flexibility, but you maybe report to Congress on your rates of trying 

to achieve those shot clock numbers? 

Again I am not trying to tie your hands, but I think there are 

issues in the past, in some cases, where things dragged on. I talked 

to a group recently, they have had a rulemaking for 6 years at the 

Commission. It was circulated last fall, I believe, and it is still in 

somebody’s in-boxes. 

Mr. GENACHOWSKI. I think shot clocks may be an effective tool. 

We are using it. It may make sense to use more shot clocks. And 

we are looking at that, and we look forward to looking at that with 

you. 

Mr. WALDEN. Commissioner Copps. 

Mr. COPPS. Amen. 

Mr. MCDOWELL. Shot clocks helped break the UNC Chapel Hill 

monopoly on basketball; I am all for that. 

Mr. WALDEN. Wow. 

Ms. CLYBURN. I always come behind him, and it is always problematic. 

All transactions are not created equal; so again, guidelines but 

not ruling the process is, I think, wise. 

Mr. WALDEN. OK. What about publication of final draft for an 

item scheduled for an open meeting? The FCC could be required to 

make final draft public a certain amount of time in advance so everyone knows precisely what the Commissioners are being asked to 

vote upon? 

Mr. GENACHOWSKI. I have always been troubled by the logical 

impossibility of this because there is a draft, there is more input. 

The draft changes. It gets put out again. And you end up in something where it is actually impossible for the agency to act effectively. The APA process is designed to do this, do a notice, put out 

rules, get comment, the agency deliberates, makes a decision. It is 

subject to further review. I think that general process works. 

Mr. COPPS. People should know generally and have a clear idea, 

but you can’t keep doing this time and time again until you get the 

89 

last ‘‘t’’ crossed and last ‘‘i’’ dotted. At some point we have to be, 

in the phrase of well-known persons, the deciders on these issues. 

Mr. WALDEN. Mr. McDowell. 

Mr. MCDOWELL. More often than not, it is a good idea. 

Ms. CLYBURN. I would not want anything to stifle any type of exchange that could possibly take place in the improvement of an 

item. 

Mr. WALDEN. What draws me to this one is what we did to 

change our House rules, require a 3-day calendar day layover so 

everyone has a chance to see it. And sometimes that is inconvenient if you want to cram something through. But it is the public’s 

business and public process. That is all I am talking about. It 

would seem to me, you would want them to see the final product 

and have a little time to comment. 

With the indulgence of the committee, if I can go through the remaining couple of items here. 

Commissioner initiation of items. The Chairman, CEO controls 

the agenda, but what about having a bipartisan group of Commissioners being able to weigh in and put items on? I know we went 

through this earlier, but let us see if Commissioner Clyburn has 

been swayed by the incredible evidence that has come out during 

the hearing. 

Ms. CLYBURN. Thank you, but no. 

Mr. WALDEN. You don’t want to be able to help set the agenda? 

Ms. CLYBURN. I think I do that. I have that type ofrapport. 

Mr. WALDEN. You weren’t there in the old days. Commissioner 

McDowell? 

Mr. MCDOWELL. Yes. I have supported this kind of concept when 

I was in the majority on the Commission, and I support it today. 

Mr. WALDEN. Commissioner Copps? 

Mr. COPPS. I would just repeat what I said. I think three Commissioners ought to have the ability to put an item on the agenda, 

take an item off the agenda, and edit the agenda. 

Mr. GENACHOWSKI. As I said, I think nothing is broken; 95 percent of our decisions are unanimous. We work collaboratively. I 

can’t imagine a situation where there would be a problem, and 

there has only been one anomaly that I am aware of historically. 

Mr. WALDEN. I will stop with that. There are some others here. 

I think you all have this. The committee has been very kind to let 

me work through those. 

We would like your feedback on them. We kicked these out as 

discussion points. Some make sense, and some don’t from a statutory standpoint. Some you can go ahead and do, and you are. And 

I appreciate that. 

I would turn now to the gentleman from Massachusetts, the always colorful Mr. Markey. 

Mr. MARKEY. I will take that as a compliment. 

Mr. WALDEN. As intended. 

Mr. MARKEY. Welcome, all. We are at an historic juncture. There is now an announced plan by AT&T to buy T–Mobile for $39 billion 

in the latest in a series of major transactions at the Commission 

for you to review, pursuant with your authority. 

The merger would reduce the number of national wireless companies from four down to three, and then the next step would be the 

90 

inevitable gobbling up of Sprint by Verizon, so we would be back 

down to two, which would be kind of going into the telecommunications time machine back to 1993 before this committee wisely decided that the two companies that had all of the licenses, one of 

them was the progeny of AT&T, all of the regional companies had 

one license, and other people had the other one, McCaw significantly, but it was 50 cents a minute. It was analog. It was not a 

particularly robust marketplace. And people did not have cell 

phones in their pocket. 

So I thought it would be good if we looked back through the 

mists of mobile time so we can understand where we were, how we 

got here, and why we really don’t want to go back at all. This isn’t 

even an open question because we had more than enough time to 

learn how big companies view how fast you can move in the deployment of mobile technologies. 

So back in October of 1993, on a bipartisan basis, it was a beautiful thing; the general disgust that this committee had with the 

lack of progress in the mobile area led us to moving over 200 megahertz of spectrum for the creation of a third, fourth, fifth and sixth 

license. 

You two big boys, you really don’t need any more unless it is in 

a market you are not in anymore. So that was kind of our message. 

They weren’t particularly happy with it. In fact, the general who 

ran all spectrum for the Federal Government for the Defense Department, he wasn’t happy with it either. But we told them all: 

Figure it out; you, know, do your best, but we need that spectrum. 

We need a robust marketplace. We want to move and be number 

one. 

So we had this incredible breakthrough, and we moved from 50 

cents a minute. Within 4 years, it was under 10 cents a minute. 

All of the companies, including the two incumbents, had to go digital, which is much more versatile. It was quite a transformation. 

If you can imagine, here is where we were when we passed the 

bill. We had this brick. Anyone remembering carrying this around 

in your pocket? This is the brick. And by 1996, we had moved to 

the BlackBerry. Brick to BlackBerry, 4 years. This committee, a lot 

of insight. 

Those first two companies, they really didn’t think that they 

wanted to move this fast. As a matter of fact, they told us in testimony they couldn’t move this fast. It just wasn’t going to be a general consumer product. They were targeting businessmen on mountaintops, I think. So that was it. Again, their message was, don’t 

regulate. 

So the question is: Do we want to turn the clock back to that duopoly? Do we want to go back to the brick in terms of how fast companies are forced to innovate? Do we want to trust those two companies again to move faster? I don’t think we want to do that. 

I think it would be a historic mistake for the FCC to approve this 

merger. I think we would go into a telecommunications time machine, back to that point in time. We already have got Verizon and 

AT&T pretty much dividing the country into Bell East and Bell 

West, which is the plan. Letting them have a national wireless duopoly is what is at stake here. 

91 

I have seen the movie before. I know how it ends for consumers, 

with them being tipped upside down and having money shaken out 

of their pockets. 

We are the ones in this committee that made sure that we ended 

that era. I think it is critical for the FCC to apply its own very 

brief history on this subject. You know, this is not something where 

we have to go back to Alexander Graham Bell. There are people 

within our own lifetime we can go back to. They are still alive. 

They were here in 1993. They can still be consulted about what the 

state of that marketplace was. 

All I can tell you, it would be a historic mistake to go back to 

that time with the promises that come from two behemoths that 

they will continue to innovate. History tells us, after 100 years 

from Alexander Graham Bell up until 1993, they do not innovate. 

And that is the key. It is innovation and it is investment in new 

technology and it is paranoia-driven Darwinian competition that 

ultimately leads to the changes that help consumers and competitors. 

And I hope you all keep that in mind as you are going forward, 

because this is going to be the biggest decision you make, and I 

hope you make the right one. 

Thank you, Mr. Chairman. 

Mr. WALDEN. I thank the gentleman. I would remind members 

of the committee that we have to be a little careful since this is 

a decision before them when it comes to the Pillsbury rule and all. 

Mr. MARKEY. Are we in the Pillsbury time right now? 

Mr. WALDEN. Back to the BlackBerry. 

Mr. MARKEY. Excuse me? Was that a question? 

Mr. WALDEN. No. They are going back to the BlackBerrys to find 

out. 

Mr. MARKEY. Are we in the Pillsbury time? Are we constricted 

in our committee hearings from expressing our views on a merger? 

Mr. WALDEN. Not your views. 

Mr. MARKEY. Yes. 

Mr. WALDEN. And I am not an attorney. I think there are issues. 

It was suggested in another hearing in another context with an 

issue before a Commission that we have to be careful in terms of 

how we convey our thoughts is all, I was told. 

Mr. MARKEY. I am a lawyer. 

Mr. WALDEN. I won’t hold that against you. 

Mr. MARKEY. And I think there are lawyers down there. Can the 

staff assist? I think the staff is packed with lawyers. Are we in the 

Pillsbury time frame right now? 

Mr. WALDEN. That is what I said, they are going to their BlackBerrys. 

Meanwhile, we will proceed and go to Ms. Eshoo for 5. 

Ms. ESHOO. Thank you, Mr. Chairman. 

While the lawyers are going back and forth, I don’t know a time 

where Members cannot express an opinion. Mr. Markey is not asking the Commissioners for their thinking on the matter that he just 

raised. He expressed his opinion. And so God help us if Members 

of Congress can’t come in as members of a committee and express 

an opinion. I understand that there is—that Mr. Markey’s opinion 

92 

may be menacing to some, but nonetheless—or discomforting—but 

it is an opinion. I think it is an important opinion. 

Whether Pillsbury or anything else gets in the way here, I am 

not a lawyer to make that determination, but I don’t think that is 

the question, most frankly. 

Chairman Genachowski, some have expressed concerns recently 

that the FCC has shied away from using a notice of inquiry to first 

examine a broad set of issues rather than proceeding straight with 

the proposed rules in a notice of proposed rulemaking. Do you 

think that proceeding with notices of inquiry can be an effective approach, and have you employed the NOIs more often under your 

chairmanship compared to previous administrations? 

Mr. GENACHOWSKI. We have used NOIs frequently. I think about 

half of our notices of proposed rulemakings have been preceded by 

NOIs. And often, especially when it is a new issue or fresh issue, 

it is a good place to start. When we are dealing with a statutory 

mandate to implement something, when the Commission has vast 

experience coming out of prior proceedings, when there are real 

timeliness issues around perhaps public safety, then NOIs may not 

be the way to go. And I think we try to be thoughtful about, with 

each proceeding, how to get the balance right between developing 

a full, inclusive public record and moving in an expeditious manner 

for the public and all stakeholders. 

Ms. ESHOO. But do you believe that an NOI must precede any 

proposed rulemaking? 

Mr. GENACHOWSKI. I don’t think that it is now a requirement or 

should be a firm requirement. 

Ms. ESHOO. I don’t have any other questions, Mr. Chairman. I 

do think, if I might, the list of suggestions that you had today, your 

punch list, that we have the Commissioners all respond to them. 

Mr. WALDEN. Yes. I actually asked them to do that. I agree. 

Ms. ESHOO. I didn’t hear that. I think it would be helpful, after 

you have had some time to give some thought to it, that we hear 

back from each one of you on them. Thank you. 

Mr. WALDEN. I turn now to Mr. Doyle, if he has any further 

questions. 

Mr. DOYLE. Mr. Chairman, in the interest of eating lunch, I have 

no further questions. 

Mr. WALDEN. With that then, I want to thank both of our committee members who participated so well in this committee hearing, and especially the FCC Commissioners and the Chairman. 

Thank you for your thoughtful approach to this. We look forward 

to continuing to work with you on a cause that I know we share, 

which is to continue to improve—— 

Mr. MARKEY. Mr. Chairman, before you conclude, has the Commission staff been able to identify whether or not a Pillsbury—OK, 

not yet. 

Mr. WALDEN. Do you want us to wait until they get an answer 

or can we go ahead and adjourn? I think we will go ahead and adjourn the hearing. 

Mr. MARKEY. You raised the issue, and it was in the aftermath 

of my comments, and I just wanted to know if my congressional 

prerogatives are in any way contradicted by any prerogatives of the 

FCC. If they are, I want all the members of the committee to know 

93 

how we are all restricted in terms of our recommendations to the 

Commission, and I just don’t want the committee hearing to end 

until that is established because that is quite a statement made to 

me. 

Mr. WALDEN. No, let’s not overtake what I said, OK. What I said 

was I just would caution the committee, this is an issue before the 

Commission and we have to be cognizant of these rules. This was 

not a criticism of what you said. And we each have the opportunity 

to express our views. That is not about that. This was not about 

you or about what Ms. Eshoo said. We will probably have a hearing 

on this issue, and rightfully so. 

I just know in a different subcommittee with an issue before the 

Nuclear Regulatory Commission that is before them, we were advised not to try and affect the Commission’s decision in that process because it is something before them. So this was in general context. That is all it was. 

Mr. MARKEY. If the gentleman would yield, is the intention of the 

hearing which you are going to have to in any way affect the decision made by the FCC? 

Mr. WALDEN. Not if it violates the Pillsbury rule. 

Mr. MARKEY. No, you are saying if it does not violate the Pillsbury rule. Do you know if that hearing will violate the Pillsbury 

rule? 

Mr. WALDEN. I won’t hold it until I find out the answer to that 

question. 

Mr. MARKEY. OK, I think that is an important thing for you to 

say. So rather than saying you are going to have the hearing, you 

should say: I am going to have the hearing if it is not a violation 

of the Pillsbury rule, because I don’t want any member of this committee to influence the way in which any member of the FCC 

thinks. OK? If that is the opposition going forward, I can live with 

that. In fact, if that is our committee policy, then I would like to 

have that established so I know that and every other member 

knows that. 

Mr. WALDEN. Yes. Slow down. Take a breath. Here is the deal. 

Mr. MARKEY. I am not the person who made the accusation that 

there is a potential Pillsbury violation. 

Mr. WALDEN. Nor did I. 

Mr. MARKEY. Yes, you did. 

Mr. WALDEN. No, that was not my intent. I would be happy to 

go back and listen. 

Mr. MARKEY. Let me put it like this: It was the effect. If it was 

not the intent, it had that effect. 

Mr. WALDEN. All right. That was not my intent. If it was assumed that way, I take that back. That was never my intent. I am 

just trying to do something cautiously here and not get anybody in 

any trouble. 

And when we have a hearing, we might not have the Commissioners before us. When they are not before us, I think we are pretty open in what we can say, right? That is all. That is all that it 

is. 

With no other business to come before the subcommittee, we are 

adjourned. 

[Whereupon, at 1:06 p.m., the subcommittee was adjourned.] 

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