Levin Provides Congressional Testimony on FCC Proposal

Ronald M. Levin, the William R. Orthwein Distinguished Professor of Law, recently presented congressional testimony related to administrative law aspects of proposed changes to Federal Communications Commission (FCC) operations.

Levin appeared before the U.S. House of Representatives Committee on Energy and Commerce’s Subcommittee on Communications and Technology. His testimony was part of a legislative hearing on “Reforming FCC Process.” [Read testimony ]

An earlier hearing on the FCC had persuaded lawmakers that, despite recent improvements in transparency and commission practices, there is still room for progress. For example, sponsors see a need to reform Sunshine Act rules to allow more efficient deliberation. However, process reform legislation tries to balance the need for increased public participation and oversight of the agency with the agency’s ability to act quickly and efficiently. To address these and other issues, the committee staff prepared a draft of proposed reform legislation, the FCC Process Reform Act.

Levin, an expert on administrative law and the author of a casebook and numerous articles in the field, offered a critique of the administrative law aspects of the proposed legislation. “A number of provisions in the bill may unduly burden the process of decision-making,” he argued, “particularly in rulemaking areas.” Noting that the bill was labeled an effort to increase efficiency, Levin stressed that it would be counterproductive to make the process more cumbersome than it already was.

“The bill does not sufficiently distinguish significant rules from minor ones,” Levin explained. He warned against imposing disproportionately complex procedural requirements for minor regulations that would be limited in their impact. In addition, he argued that the FCC needs flexibility in implementing public comment periods. In some situations, Levin stated that the bill’s strict rules about the periods would “add unnecessary delay.”

He also questioned the bill’s requirement that the FCC explain the “market failure” that a newly issued rule was intended to solve. “Many rules are legitimately adopted for other reasons,” he argued. “In any event, Congress should be cautious before it prescribes new analytical requirements for broad classes of rulemaking.”

Additionally, Levin stated that the bill’s requirements for cost-benefit analysis were too broad. “Their evident purpose,” he explained, “is to bring FCC practice into line with presidential executive oversight orders. The cost-benefit analysis obligations in those orders, however, apply to only a limited class of especially significant rules, and the sufficiency of agencies’ compliance with them is not judicially reviewable. The bill should be revised to bring [the proposed legislation] into closer conformity with these limitations.”

Levin is a past chair and longtime active member of the ABA Section of Administrative Law and Regulatory Practice and currently serves as a public member of the Administrative Conference of the United States (ACUS).

Hearing website [view ]