All too often, the FCC imposes rules, placing new burdens on companies and affecting the marketplace, without any plan to revisit whether those rules remain necessary or relevant in the future. These decisions, and their attendant costs, can linger for years on autopilot while the FCC turns its attention to other policy matters. One obvious example is the newspaper/broadcast cross-ownership rule, a true anachronism enacted in 1975, but with each year that goes by many other Commission rules that may have been great ideas at the time drift further toward irrelevancy, or worse, become affirmative barriers to innovation. Quite frankly, in the age of hyper-speed “Internet years,” the Commission’s approach to some issues is stuck in the age of rabbit ears, and this problem is expanding exponentially right along with our rules.
While the FCC has statutory obligations to periodically review certain aspects of its rules, such as section 11 of the Communications Act, these requirements are generally given short shrift, when they are adhered to all. This is certainly an area where the agency needs to make significant improvement, but that doesn’t seem to be in the cards anytime soon.
More broadly, the FCC needs to adopt procedures to proactively reexamine its rules and policies across its many proceedings. In particular, I have consistently pushed to add sunset provisions to agency orders. Let’s face it: nothing produces an honest assessment of a rule or program like its pending expiration. And the length of any particular provision may depend on a number of factors, including the state of the market, how detailed the rules are, and the resources needed to update the regulations. In most cases, however, I expect that an evaluation of rules adopted in this fast changing sector should occur within five years. If it is not worth the cost to review the rules within five years, then I seriously question the benefit of retaining them or enacting them in the first place.
My requests for sunset provisions are usually met with opposition, but generally for the wrong reason. Specifically, these requests are often viewed as a sign that I am fundamentally opposed to the Commission’s rules or programs at issue and am deviously attempting to undermine them. Instead my goal is simply to ensure that the agency has a strong incentive to engage in a meaningful review and make an affirmative decision as to whether the rules should be retained as is, retained but modified, or eliminated. In some cases, I may even be more receptive to proposed rules based on current marketplace realities if a timely appraisal was guaranteed. But, I am increasingly hesitant to impose regulations that could remain on the books indefinitely when circumstances and technology will inevitably change significantly in the future. No regulation is perfect, and we do not have a crystal ball. This is a matter of regulatory humility.
For instance, in one Notice involving a program required by statute, I sought to add a proposal to sunset the rules after two cycles of the program—a full ten years later. The response was that it would be inconsistent with the statute. But I wasn’t proposing that the program be discontinued; rather, I was suggesting that this iteration of the program should be reviewed to determine effectiveness and whether a different version should be used in subsequent cycles. And since these rules would impact not only service providers and program recipients, but also ratepayers funding the program, it seemed all the more important to propose a means to ensure continued good stewardship of consumer dollars. Moreover, proposing a ten-year sunset date seemed more than generous. Yet a majority of the FCC was unwilling to include such a concept.
Another response I typically hear is that stakeholders are able to file petitions for rulemaking to reconsider past decisions. But this is a specious solution: the agency is under no obligation to consider such petition and, even if it launches a proceeding, the FCC has no deadline to complete it. Maybe pending legislation in Congress can rectify this, but placing the burden on parties to file petitions and advocate for consideration also adds to the costs they already incur to comply with the rules. Instead of waiting until the rules are outdated enough that it is worth the cost for a party to file, the agency should take the lead and proactively review its rules.
The FCC deals with some of the most cutting edge issues and technologies. It also has a full docket. That is a recipe for precipitating, one small drop at a time, a swelling tidal wave of outdated rules and burdens. Perhaps if the agency made routine use of sunset provisions, these requests would not be viewed as votes of no confidence but rather as good government measures designed to ensure that our rules continue to serve their intended purposes, to the benefit of all.