06/03/03 FCC Decision on Broadcast Rules Suggests Need for Oversight

[admin]

The FCC has issued new rules governing media ownership by broadcast companies. These new rules have the effect of significantly relaxing media ownership restrictions. The FCC News Release announcing the decision stated that the new rules were "based on empirical evidence" and were the result of an "unprecedented public record" of more than 520,000 comments. Commissioner Adelstein's dissenting statement noted that "99.9 percent"of people who made their views known to the Commission were opposed to the new rules. The Commissioner's statement also discussed his view that the new rules were "based on oftentimes arbitrary numbers." Given the economic significance of the new broadcast ownership rules and the disputes over the quality of the data and analysis underlying the Commission's decision, the rulemaking is a key illustration why OMB should, under its existing authority, review major rulemakings by the FCC and other independent agencies. OMB has particular expertise in regulatory analysis and is responsible for ensuring that agencies adhere to the "good government" laws, such as the Data Quality Act and Paperwork Reduction Act, which govern the regulatory process. Although there is great controversy over whether the public interest will be well served by the new broadcast ownership rules, there should be little dispute that the public would have been better served by OMB oversight of the rulemaking.

Click to read the FCC News Release (http://www.fcc.gov/Daily_Releases/Daily_Business/2003/db0602/DOC-235047A1.pdf)
Click to read Statement by Commissioner Adelstein (http://www.fcc.gov/Daily_Releases/Daily_Business/2003/db0602/DOC-235047A8.pdf)
Click to read CRE's Blueprint for OMB Review of Independent Agency Regulations (http://thecre.com/ombpapers/20020225_cre-blueprint.html)

[johnshaw]

I have heard several references to over half a million comments. I assume this includes off the record e-mails, phone calls, post cards, and other such comments. As of May 30, there were about 12,270 comments on docket 02-277 (several other dockets have many comments, however, most of those are the same comment submitted to all related dockets).

The majority of the comments on the record are simple, one paragraph comments opposing media concentration. I suspect most of the half million comments are similar. While I accept that these comments are an indication of public sentiment, they are more likely to be a measure of the effectiveness of certain web sites that allow a user to enter his e-mail address and click on “send”.

The NRPM, 68 pages long, sought comment on about 100 individual issues. Even if a commenter submitted comments on just a few issues, it would take more than a paragraph to do justice to the complexities of the issues.

I saw the markup of a draft ANPRM (EPA/Army, “Definition of Waters of the U. S.”) with changes recommended by OIRA. What would be the effect on the process, and on the Report and Order, had there been OMB oversight of FCC’s media ownership rulemaking?

[admin]

Under the CRE proposal, OMB would review the FCC regulations and make a determination as to whether they complied with 'the "Good Government" statutes which "regulate the regulators."

These statutes include the Paperwork Reduction Act, the Regulatory Flexibility Act, the Unfunded Mandates Act, and most recently the Data Quality Act.

OMB review of the FCC rule might have concluded that the rule did not meet the standards set forth in the Data Quality Act.
OMB would have made this comment to the FCC as a part of the public comment period.

With a determination made by the agency in charge of the Data Quality Act, private parties could use that determination to seek relief in Federal Court.

[johnshaw]

As far as I know, the FCC Report and Order was not published before the announcements on June 2. I still cannot find it on their website. Would the OMB have access to the rule during the public comment period?

Would public reply comments to the OMB comments be allowed?

[admin]

OMB would comment on the FCC's proposed rule. They would have access to it not only because it was published in the Federal Register but also because the FCC must send it to OMB for review on the Paperwork Reduction Act.

With respect to the final rule, OMB would also have access to it because of their review under the Paperwork Reduction Act.

The bottom line is that is OMB is in the loop already, but there review is limited to paperwork considerations, not the substance of the rule.

The public could access OMB comments in that they are part of the
public record. Outside parties could comment on OMB's comments but their would be no ongoing proceeding in which they could be considered.

The exception, however, would be if a third-party filed a data quality petition on the final rule.(Outside parties interested in pursing this matter should call the Center For Effectiveness(202-265-2383)