November 2, 2011

FCC Reform Proposal Has Good Ideas, Enforcement Needed

Jerry Ellig

Research Professor, George Washington University Regulatory Studies Center
Summary

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I’ve only seen a summary of Representative Walden’s and Senator Heller’s Federal Communications Commissionn (FCC) reform legislation, but it sounds like the bill incorporates several ideas that would improve the quality and use of regulatory analysis at the FCC. It would require the FCC to:

1.       Identify the systemic problem it is trying to solve – a market failure or regulatory barrier.

2.       Demonstrate that the benefits of the regulation outweigh the costs and that the regulation minimizes the cost on society.

3.       Adopt performance measures so Congress and the public can see the actual results of regulations after they are implemented.

These are excellent ideas for any agency, but I’d offer one major note of caution.

For more than three decades, presidents have issued executive orders instructing agencies to perform solid regulatory analysis when they issue regulations and to perform retrospective evaluation to find out the regulations’ actual effects. The Mercatus Center’s Regulatory Report Card finds that these regulatory analyses are often seriously incomplete and rarely used to make decisions. To make these reforms work for the FCC or for any agency, an enforcement mechanism via judicial review is crucial. Only then will we get high-quality analysis that’s actually used in decisions.