Survivor- FCC Stlye

Every once in a while Congress has a good idea. About twenty-five years ago, it dawned on them that most federal agencies are so busy adopting new rules that they rarely take the time to consider whether the regulations already on the books still make sense (assuming they ever did). Recognizing that the interests of larger players generally get heard, Congress was particularly concerned about outdated rules that affected primarily smaller entities.

It therefore passed what is known as the Regulatory Flexibility Act. Most of us are familiar with this statute because of the Regulatory Flexibility Analyses that are tacked onto the end of each FCC rulemaking proposal and order. These analyses are prospective; they are intended to assess the future impact on smaller businesses of the rules under consideration. Much of this work has become rote over time. For example, the Regulatory Flexibility analyses provided in auction proceedings have become as cookie cutter as paper dolls; there aren’t too many different ways to describe the impact of rules that are essentially identical from auction to auction. Not surprisingly, the analyses conducted as part of rulemaking proceedings never reach the conclusion that the regulations being adopted will be unduly burdensome for small businesses. However onerous the industry may find them after the fact, at the outset the FCC is invariably confident that they can be implemented without much fuss.

However, the law also has a retrospective component. It forces agencies to review its regulations within ten years of their adoption. The purpose of the review is “to determine whether such rules should be continued without change, or should be amended or rescinded to minimize any significant economic impact of such rules upon a substantial number of small entities.”
Here’s how the system works. The FCC staff periodically selects certain rules that were adopted within ten years of the time of review and evaluates whether there is a continued need for them based on what kinds of complaints they’ve received about them, how complex they are, whether they overlap, duplicate or even conflict with other Federal, state and local laws, and whether changes in technical, economic or other factors, or simply the passage of time, warrant their re-evaluation. The Commission provides its assessment of the purpose of the rule and whether there is a continued need for it and solicits public comment on whether the targeted provisions should be revised or eliminated. If the public comments are sufficiently negative, the rule can be deleted.

However, just because a rule is selected for the FCC review process doesn’t mean that the agency believes it should be modified or abandoned. In fact, it is more typical for the FCC to conclude that all or virtually all of the provisions it considers remain necessary. But perhaps that’s because the industry has not been as actively involved in this process as it should be. After all, we’re the ones that have to keep the records, file the forms, and hire the personnel needed to implement the Commission’s regulations. If we don’t complain about them, or at least bring them to the FCC’s attention, it is unlikely that the agency will determine that their rules have become unnecessary or outdated. We also know which “rules” are ignored routinely by both industry and FCC staff, yet sit on the books and could be applied at any time.

For example, Section 90.129 which describes supplemental information that supposedly is submitted routinely with all applications specifies that applicants for multiple-licensed (community repeater) transmitters are required to provide the name of the owner and the names and call signs of all licensees sharing the transmitter. There was a brief period when the FCC collected that data, and there may have been some unknowing applicant that actually provided the information to the FCC in the last ten years, but, if so, the application processor undoubtedly scratched his or her head wondering what they were supposed to do with it. Of course, at any time the FCC could decide to return or dismiss applications that didn’t include that data since it is defined as mandatory under the rules.

The so-called “Safe Harbor” tables in Section 90.205, on the other hand, are enforced rigorously and have a significant economic impact on a number of small entities. In a misbegotten attempt to ward off what were expected to be even more restrictive FCC provisions, the industry suggested the Safe Harbor tables in response to the Commission’s desire to increase the use of the already heavily encumbered VHF and UHF bands by limiting the height and power permitted for new systems. The theory was that by limiting new licensees’ service areas, more and more entities could be packed into these bands. The reality is an unbalanced spectrum environment with grandfathered systems operating at 300, 500 or even higher ERPs at relatively close distances to co-channel facilities that may be limited to 8 ERP. Licensees either have to concoct elaborate showings justifying the need for larger services areas and, therefore, higher power levels or put in multiple facilities to achieve the necessary coverage. Both come at a cost to the typically smaller entities that populate these bands. If there ever were rules that should be required to justify their continued existence, the Safe Harbor tables should be near the top of that list.

And here is where the industry needs to become more active. Rather than simply griping to one another about rules we don’t like or don’t need, it’s time to begin putting that information together and providing it to the FCC for the next Regulatory Flexibility review process. Of course, it’s not a free-for-all. There is no specific mechanism for addressing rules that have been on the books for more than ten years and weren’t eliminated already, and the Commission gets first crack at deciding which rules within the ten-year window should be reviewed. But the industry should have a wish list ready for the next go-around and should be prepared to devote some energy toward convincing the FCC that certain rules are ripe for elimination. It’s that kind of collective action that may enable us to vote some of those antiquated or onerous rules “off the island.”