II 

112TH CONGRESS 

1ST SESSION S. 1784 

To amend the Communications Act of 1934 to provide for greater transparency and efficiency in the procedures followed by the Federal Communications Commission. 

IN THE SENATE OF THE UNITED STATES 

NOVEMBER 2, 2011 

Mr. HELLER introduced the following bill; which was read twice and referred 

to the Committee on Commerce, Science, and Transportation 

A BILL 

To amend the Communications Act of 1934 to provide for 

greater transparency and efficiency in the procedures 

followed by the Federal Communications Commission. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Federal Communica5 tions Commission Process Reform Act of 2011’’. 

6 SEC. 2. FCC PROCESS REFORM. 

7 (a) IN GENERAL.—Title I of the Communications Act 

8 of 1934 (47 U.S.C. 151 et seq.) is amended by adding 

9 at the end the following new section: 


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1 ‘‘SEC. 13. TRANSPARENCY AND EFFICIENCY. 

2 ‘‘(a) RULEMAKING REQUIREMENTS.— 

3 ‘‘(1) REQUIREMENTS FOR NOTICES OF PRO4 POSED RULEMAKING.—The Commission may not 

5 issue a notice of proposed rulemaking unless the 

6 Commission provides for a period of not less than 30 

7 days for the submission of comments and an addi8 tional period of not less than 30 days for the sub9 mission of reply comments on such notice and the 

10 Commission includes in such notice the following: 

11 ‘‘(A) Either— 

12 ‘‘(i) an identification of— 

13 ‘‘(I) a notice of inquiry, a prior 

14 notice of proposed rulemaking, or a 

15 notice on a petition for rulemaking 

16 issued by the Commission during the 

17 3-year period preceding the issuance 

18 of the notice of proposed rulemaking 

19 concerned and of which such notice is 

20 a logical outgrowth; or 

21 ‘‘(II) an order of a court review22 ing action by the Commission or oth23 erwise directing the Commission to 

24 act that was issued by the court dur25 ing the 3-year period preceding the 

26 issuance of the notice of proposed 


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1 rulemaking concerned and in response 

2 to which such notice is being issued; 

3 or 

4 ‘‘(ii) a finding (together with a brief 

5 statement of reasons therefor)— 

6 ‘‘(I) that the proposed rule or the 

7 proposed amendment of an existing 

8 rule will not impose additional bur9 dens on industry or consumers; or 

10 ‘‘(II) for good cause, that a no11 tice of inquiry is impracticable, unnec12 essary, or contrary to the public inter13 est. 

14 ‘‘(B) The specific language of the proposed 

15 rule or the proposed amendment of an existing 

16 rule. 

17 ‘‘(C) In the case of a proposal to create a 

18 program activity, proposed performance meas19 ures for evaluating the effectiveness of the pro20 gram activity. 

21 ‘‘(D) In the case of a proposal to substan22 tially change a program activity— 

23 ‘‘(i) proposed performance measures 

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1 gram activity as proposed to be changed; 

2 or 

3 ‘‘(ii) a proposed finding that existing 

4 performance measures will effectively 

5 evaluate the program activity as proposed 

6 to be changed. 

7 ‘‘(2) REQUIREMENTS FOR RULES.—Except as 

8 provided in the 3rd sentence of section 553(b) of 

9 title 5, United States Code, the Commission may not 

10 adopt or amend a rule unless— 

11 ‘‘(A) the specific language of the adopted 

12 rule or the amendment of an existing rule is a 

13 logical outgrowth of the specific language of a 

14 proposed rule or a proposed amendment of an 

15 existing rule included in a notice of proposed 

16 rulemaking, as described in subparagraph (B) 

17 of paragraph (1); 

18 ‘‘(B) such notice of proposed rulemaking— 

19 ‘‘(i) was issued in compliance with 

20 such paragraph and during the 3-year pe21 riod preceding the adoption of the rule or 

22 the amendment of an existing rule; and 

23 ‘‘(ii) is identified in the order making 

24 the adoption or amendment; 


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1 ‘‘(C) in the case of the adoption of a rule 

2 or the amendment of an existing rule that may 

3 have an economically significant impact, the 

4 order contains— 

5 ‘‘(i) an identification and analysis of 

6 the specific market failure, actual con7 sumer harm, burden of existing regulation, 

8 or failure of public institutions that war9 rants the adoption or amendment; and 

10 ‘‘(ii) a reasoned determination that 

11 the benefits of the adopted rule or the 

12 amendment of an existing rule justify its 

13 costs (recognizing that some benefits and 

14 costs are difficult to quantify), taking into 

15 account alternative forms of regulation and 

16 the need to tailor regulation to impose the 

17 least burden on society, consistent with ob18 taining regulatory objectives; 

19 ‘‘(D) in the case of the adoption of a rule 

20 or the amendment of an existing rule that cre21 ates a program activity, the order contains per22 formance measures for evaluating the effective23 ness of the program activity; and 

24 ‘‘(E) in the case of the adoption of a rule 

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1 stantially changes a program activity, the order 

2 contains— 

3 ‘‘(i) performance measures for evalu4 ating the effectiveness of the program ac5 tivity as changed; or 

6 ‘‘(ii) a finding that existing perform7 ance measures will effectively evaluate the 

8 program activity as changed. 

9 ‘‘(3) DATA FOR PERFORMANCE MEASURES.— 

10 The Commission shall develop a performance meas11 ure or proposed performance measure required by 

12 this subsection to rely, where possible, on data al13 ready collected by the Commission. 

14 ‘‘(b) ADEQUATE DELIBERATION BY COMMIS15 SIONERS.—The Commission shall by rule establish proce16 dures for— 

17 ‘‘(1) informing all Commissioners of the options 

18 available to the Commission for resolving a petition, 

19 complaint, application, rulemaking, or other pro20 ceeding; 

21 ‘‘(2) ensuring that all Commissioners have ade22 quate time, prior to being required to decide a peti23 tion, complaint, application, rulemaking, or other 

24 proceeding (including at a meeting held pursuant to 

25 section 5(d)), to review the proposed Commission deVerDate Mar 15 2010 00:13 Nov 04, 2011 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1784.IS S1784

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1 cision document, including the specific language of 

2 any proposed rule or any proposed amendment of an 

3 existing rule; and 

4 ‘‘(3) publishing the text of agenda items to be 

5 voted on at an open meeting in advance of such 

6 meeting so that the public has the opportunity to 

7 read the text before a vote is taken. 

8 ‘‘(c) NONPUBLIC COLLABORATIVE DISCUSSIONS.— 

9 ‘‘(1) IN GENERAL.—Notwithstanding section 

10 552b of title 5, United States Code, a bipartisan 

11 majority of Commissioners may hold a meeting that 

12 is closed to the public to discuss official business 

13 if— 

14 ‘‘(A) a vote or any other agency action is 

15 not taken at such meeting; 

16 ‘‘(B) each person present at such meeting 

17 is a Commissioner, an employee of the Commis18 sion, a member of a joint board established 

19 under section 410, or a person on the staff of 

20 such a joint board; and 

21 ‘‘(C) an attorney from the Office of Gen22 eral Counsel of the Commission is present at 

23 such meeting. 

24 ‘‘(2) DISCLOSURE OF NONPUBLIC COLLABO25 RATIVE DISCUSSIONS.—Not later than 2 business 


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1 days after the conclusion of a meeting held under 

2 paragraph (1), the Commission shall publish a dis3 closure of such meeting, including— 

4 ‘‘(A) a list of the persons who attended 

5 such meeting; and 

6 ‘‘(B) a summary of the matters discussed 

7 at such meeting, except for such matters as the 

8 Commission determines may be withheld under 

9 section 552b(c) of title 5, United States Code. 

10 ‘‘(3) PRESERVATION OF OPEN MEETINGS RE11 QUIREMENTS FOR AGENCY ACTION.—Nothing in this 

12 subsection shall limit the applicability of section 

13 552b of title 5, United States Code, with respect to 

14 a meeting of Commissioners other than that de15 scribed in paragraph (1). 

16 ‘‘(d) INITIATION OF ITEMS BY BIPARTISAN MAJOR17 ITY.—The Commission shall by rule establish procedures 

18 for allowing a bipartisan majority of Commissioners to— 

19 ‘‘(1) direct Commission staff to draft an order, 

20 decision, report, or action for review by the Commis21 sion; 

22 ‘‘(2) require Commission approval of an order, 

23 decision, report, or action with respect to a function 

24 of the Commission delegated under section 5(c)(1); 

25 and 


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1 ‘‘(3) place an order, decision, report, or action 

2 on the agenda of an open meeting. 

3 ‘‘(e) PUBLIC REVIEW OF CERTAIN REPORTS AND EX

4 PARTE COMMUNICATIONS.— 

5 ‘‘(1) IN GENERAL.—Except as provided in para6 graph (2), the Commission may not rely, in any 

7 order, decision, report, or action, on— 

8 ‘‘(A) a statistical report or report to Con9 gress, unless the Commission has published and 

10 made such report available for comment for not 

11 less than a 30-day period prior to the adoption 

12 of such order, decision, report, or action; or 

13 ‘‘(B) an ex parte communication or any fil14 ing with the Commission, unless the public has 

15 been afforded adequate notice of and oppor16 tunity to respond to such communication or fil17 ing, in accordance with procedures to be estab18 lished by the Commission by rule. 

19 ‘‘(2) EXCEPTION.—Paragraph (1) does not 

20 apply when the Commission for good cause finds 

21 (and incorporates the finding and a brief statement 

22 of reasons therefor in the order, decision, report, or 

23 action) that publication or availability of a report 

24 under subparagraph (A) of such paragraph or notice 

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1 munication under subparagraph (B) of such para2 graph are impracticable, unnecessary, or contrary to 

3 the public interest. 

4 ‘‘(f) PUBLICATION OF STATUS OF CERTAIN PRO5 CEEDINGS AND ITEMS.—The Commission shall by rule es6 tablish procedures for publishing the status of all open 

7 rulemaking proceedings and all proposed orders, decisions, 

8 reports, or actions on circulation for review by the Com9 missioners, including which Commissioners have not cast 

10 a vote on an order, decision, report, or action that has 

11 been on circulation for more than 60 days. 

12 ‘‘(g) DEADLINES FOR ACTION.—The Commission 

13 shall by rule establish deadlines for any Commission order, 

14 decision, report, or action for each of the various cat15 egories of petitions, applications, complaints, and other fil16 ings seeking Commission action, including filings seeking 

17 action through authority delegated under section 5(c)(1). 

18 ‘‘(h) PROMPT RELEASE OF CERTAIN REPORTS AND

19 DECISION DOCUMENTS.— 

20 ‘‘(1) STATISTICAL REPORTS AND REPORTS TO

21 CONGRESS.— 

22 ‘‘(A) RELEASE SCHEDULE.—Not later 

23 than January 15th of each year, the Commis24 sion shall identify, catalog, and publish an an25 ticipated release schedule for all statistical reVerDate Mar 15 2010 00:13 Nov 04, 2011 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1784.IS S1784

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1 ports and reports to Congress that are regularly 

2 or intermittently released by the Commission 

3 and will be released during such year. 

4 ‘‘(B) PUBLICATION DEADLINES.—The 

5 Commission shall publish each report identified 

6 in a schedule published under subparagraph (A) 

7 not later than the date indicated in such sched8 ule for the anticipated release of such report. 

9 ‘‘(2) DECISION DOCUMENTS.—The Commission 

10 shall publish each order, decision, report, or action 

11 not later than 7 days after the date of the adoption 

12 of such order, decision, report, or action. 

13 ‘‘(3) EFFECT IF DEADLINES NOT MET.— 

14 ‘‘(A) NOTIFICATION OF CONGRESS.—If the 

15 Commission fails to publish an order, decision, 

16 report, or action by a deadline described in 

17 paragraph (1)(B) or (2), the Commission shall, 

18 not later than 7 days after such deadline and 

19 every 14 days thereafter until the publication of 

20 the order, decision, report, or action, notify by 

21 letter the chairpersons and ranking members of 

22 the Committee on Energy and Commerce of the 

23 House of Representatives and the Committee 

24 on Commerce, Science, and Transportation of 

25 the Senate. Such letter shall identify such 


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1 order, decision, report, or action, specify the 

2 deadline, and describe the reason for the delay. 

3 The Commission shall publish such letter. 

4 ‘‘(B) NO IMPACT ON EFFECTIVENESS.— 

5 The failure of the Commission to publish an 

6 order, decision, report, or action by a deadline 

7 described in paragraph (1)(B) or (2) shall not 

8 render such order, decision, report, or action in9 effective when published. 

10 ‘‘(i) BIANNUAL SCORECARD REPORTS.— 

11 ‘‘(1) IN GENERAL.—For the 6-month period be12 ginning on January 1st of each year and the 6- 

13 month period beginning on July 1st of each year, 

14 the Commission shall prepare a report on the per15 formance of the Commission in conducting its pro16 ceedings and meeting the deadlines established 

17 under subsections (g), (h)(1)(B), and (h)(2). 

18 ‘‘(2) CONTENTS.—Each report required by 

19 paragraph (1) shall contain detailed statistics on 

20 such performance, including, with respect to each 

21 Bureau of the Commission— 

22 ‘‘(A) in the case of performance in meeting 

23 the deadlines established under subsection (g), 

24 with respect to each category established under 

25 such subsection— 


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1 ‘‘(i) the number of petitions, applica2 tions, complaints, and other filings seeking 

3 Commission action that were pending on 

4 the last day of the period covered by such 

5 report; 

6 ‘‘(ii) the number of filings described 

7 in clause (i) that were not resolved by the 

8 deadlines established under such sub9 section and the average length of time 

10 such filings have been pending; and 

11 ‘‘(iii) for petitions, applications, com12 plaints, and other filings seeking Commis13 sion action that were resolved during such 

14 period, the average time between initiation 

15 and resolution and the percentage resolved 

16 by the deadlines established under such 

17 subsection; 

18 ‘‘(B) in the case of proceedings before an 

19 administrative law judge— 

20 ‘‘(i) the number of such proceedings 

21 completed during such period; and 

22 ‘‘(ii) the number of such proceedings 

23 pending on the last day of such period; and 


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1 ‘‘(C) the number of independent studies or 

2 analyses published by the Commission during 

3 such period. 

4 ‘‘(3) PUBLICATION AND SUBMISSION.—The 

5 Commission shall publish and submit to the Com6 mittee on Energy and Commerce of the House of 

7 Representatives and the Committee on Commerce, 

8 Science, and Transportation of the Senate each re9 port required by paragraph (1) not later than the 

10 date that is 30 days after the last day of the period 

11 covered by such report. 

12 ‘‘(j) TRANSACTION REVIEW STANDARDS.— 

13 ‘‘(1) IN GENERAL.—The Commission shall con14 dition its approval of a transfer of lines, a transfer 

15 of licenses, or any other transaction under section 

16 214, 309, or 310 or any other provision of this Act 

17 only if— 

18 ‘‘(A) the imposed condition is narrowly tai19 lored to remedy a harm that arises as a direct 

20 result of the specific transfer or specific trans21 action that this Act empowers the Commission 

22 to review; and 

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1 powering the Commission to review a transfer 

2 of lines, a transfer of licenses, or other trans3 action. 

4 ‘‘(2) EXCLUSIONS.—In reviewing a transfer of 

5 lines, a transfer of licenses, or any other transaction 

6 under section 214, 309, or 310 or any other provi7 sion of this Act, the Commission may not consider 

8 a voluntary commitment of a party to such transfer 

9 or transaction unless the Commission could adopt 

10 that voluntary commitment as a condition under 

11 paragraph (1). 

12 ‘‘(k) FORM OF PUBLICATION.— 

13 ‘‘(1) IN GENERAL.—In complying with a re14 quirement of this section to publish a document, the 

15 Commission shall publish such document on its 

16 website, in addition to publishing such document in 

17 any other form that the Commission is required to 

18 use or is permitted to and chooses to use. 

19 ‘‘(2) EXCEPTION.—The Commission shall by 

20 rule establish procedures for redacting documents 

21 required to be published by this section so that the 

22 published versions of such documents do not con23 tain— 

24 ‘‘(A) information the publication of which 

25 would be detrimental to national security, 


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1 homeland security, law enforcement, or public 

2 safety; or 

3 ‘‘(B) information that is proprietary or 

4 confidential. 

5 ‘‘(l) DEFINITIONS.—In this section: 

6 ‘‘(1) AMENDMENT.—The term ‘amendment’ in7 cludes, when used with respect to an existing rule, 

8 the deletion of such rule. 

9 ‘‘(2) BIPARTISAN MAJORITY.—The term ‘bipar10 tisan majority’ means, when used with respect to a 

11 group of Commissioners, that such group— 

12 ‘‘(A) is a group of 3 or more Commis13 sioners; and 

14 ‘‘(B) includes, for each political party of 

15 which any Commissioner is a member, at least 

16 1 Commissioner who is a member of such polit17 ical party, and, if any Commissioner has no po18 litical party affiliation, at least one unaffiliated 

19 Commissioner. 

20 ‘‘(3) ECONOMICALLY SIGNIFICANT IMPACT.— 

21 The term ‘economically significant impact’ means an 

22 effect on the economy of $100,000,000 or more an23 nually or a material adverse effect on the economy, 

24 a sector of the economy, productivity, competition, 


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1 jobs, the environment, public health or safety, or 

2 State, local, or tribal governments or communities. 

3 ‘‘(4) PERFORMANCE MEASURE.—The term ‘per4 formance measure’ means an objective and quantifi5 able outcome measure or output measure (as such 

6 terms are defined in section 1115 of title 31, United 

7 States Code). 

8 ‘‘(5) PROGRAM ACTIVITY.—The term ‘program 

9 activity’ has the meaning given such term in section 

10 1115 of title 31, United States Code, except that 

11 such term also includes any annual collection or dis12 tribution or related series of collections or distribu13 tions by the Commission of an amount that is great14 er than or equal to $100,000,000. 

15 ‘‘(6) OTHER DEFINITIONS.—The terms ‘agency 

16 action’, ‘ex parte communication’, and ‘rule’ have 

17 the meanings given such terms in section 551 of title 

18 5, United States Code.’’. 

19 (b) EFFECTIVE DATE AND IMPLEMENTING RULES.— 

20 (1) EFFECTIVE DATE.— 

21 (A) IN GENERAL.—The requirements of 

22 section 13 of the Communications Act of 1934, 

23 as added by subsection (a), shall apply begin24 ning on the date that is 6 months after the date 

25 of the enactment of this Act. 


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1 (B) PRIOR NOTICES OF PROPOSED RULE2 MAKING.—If the Commission identifies under 

3 paragraph (2)(B)(ii) of subsection (a) of such 

4 section 13 a notice of proposed rulemaking 

5 issued prior to the date of the enactment of this 

6 Act— 

7 (i) such notice shall be deemed to 

8 have complied with paragraph (1) of such 

9 subsection; and 

10 (ii) if such notice did not contain the 

11 specific language of a proposed rule or a 

12 proposed amendment of an existing rule, 

13 paragraph (2)(A) of such subsection shall 

14 be satisfied if the adopted rule or the 

15 amendment of an existing rule is a logical 

16 outgrowth of such notice. 

17 (C) SCHEDULES AND REPORTS.—Notwith18 standing subparagraph (A), subsections (h)(1) 

19 and (i) of such section shall apply with respect 

20 to 2013 and any year thereafter. 

21 (2) RULES.—The Federal Communications 

22 Commission shall promulgate the rules necessary to 

23 carry out such section not later than 1 year after 

24 the date of the enactment of this Act. 


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1 (3) PROCEDURES FOR ADOPTING RULES.—Not2 withstanding paragraph (1)(A), in promulgating 

3 rules to carry out such section, the Federal Commu4 nications Commission shall comply with the require5 ments of subsections (a) and (h)(2) of such section. 

6 SEC. 3. EFFECT ON OTHER LAWS. 

7 Nothing in this Act or the amendment made by this 

8 Act shall relieve the Federal Communications Commission 

9 from any obligations under title 5, United States Code, 

10 except where otherwise expressly provided. 

Æ 


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