The Federal Communications Commission’s standards for reviewing mergers are “vague and susceptible to abuse,” Rep. Greg Walden, R-Ore., told a hearing on FCC reform on Friday.
The agency has used the proceedings as leverage to impose wide-ranging and inappropriate conditions on companies seeking merger approval, Walden told a hearing of the House Energy and Commerce Communications and Technology Subcommittee.
And as some committee members suggested FCC reforms, others got right to the proposed merger of AT&T and T-Mobile USA.
“It would be a mistake of historic proportions to approve this merger,” said Rep. Ed Markey, D-Mass. After Friday's hearing, Walden told reporters he will look at holding a hearing on the AT&T deal sometime after the record is complete at the FCC.
Several Republicans on the panel cited conditions imposed on Comcast’s acquisition of NBCUniversal and voiced concern that the FCC could impose conditions on AT&T having little to do with the actual merger. If the FCC and Justice Department decide to approve the AT&T deal, conditions will likely become a major topic of debate.
Republican FCC Commissioner Robert McDowell voiced similar concerns about extraneous conditions in an interview with National Journal last week and on Friday he reiterated his view that the FCC’s transaction reviews are “in dire need of reform.”
Walden said the FCC may need to be required to show its authority to impose conditions on mergers.“The FCC could be prohibited from adopting any conditions unless they are narrowly tailored to any transaction-specific harm,” Walden said.
But Rep. Henry Waxman, D-Calif., ranking member on the full Energy and Commerce Committee, questioned whether lawmakers might be changing procedures in order to influence outcomes they don’t agree with.
“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?” Waxman asked. “Some might view conditions as unfair while others might see them as critical trade-offs that allow transactions that might otherwise fail to go forward.”
Walden suggested a range of other possible reforms at the FCC. Among his ideas: requiring the FCC to start proceedings with a notice of inquiry to gather information before proposing rules; publishing text of proposed rules; enforcing timelines for considering items; allowing a majority of commissioners to propose new items; and requiring the FCC to conduct more cost-benefit analyses and provide regular reports to Congress.
On the Democratic side, subcommittee ranking member Anna Eshoo, D-Calif., highlighted the FCC Collaboration Act, which she introduced earlier this year. The bill would loosen current FCC sunshine rules that prohibit more than two commissioners from talking to each other outside of a public meeting.
“In an agency which deals with highly technical issues like spectrum and universal service, FCC commissioners should be able to collaborate and benefit from the years of experience that each brings to the table,” Eshoo said in her opening statement.
FCC Chairman Julius Genachowski said he doesn’t believe any changes to the meeting rules are necessary. Democratic FCC Commissioner Michael Copps supported Eshoo, and urged Congress to pass the legislation.
“I have seen firsthand the pernicious and unintended consequences of this prohibition—stifling collaborative discussions among colleagues, delaying timely decision-making, discouraging collegiality, and short-changing consumers and the public interest,” Copps said.
Republican FCC Commissioner Meredith Attwell Baker did not testify before the subcommittee. She announced Wednesday that she is leaving to take a job with Comcast/NBCUniversal.