Congress and the FCC: An Uneasy Relationship

President Barack Obama’s recent statement urging Federal Communications Commission Chairman Tom Wheeler to “reclassify” broadband Internet services has exposed many people to something they haven’t had reason to think about: the FCC is an independent agency, not truly part of the Executive Branch. Actually, the FCC is in some ways more nearly akin to an arm of the Congress, and exercises quasi-legislative powers when it adopts rules implementing the Communications Act.

The relationship between the FCC and the Executive Branch is a worthy topic to explore, but in light of the recent Republican takeover of the Senate, this post will address the relationship between the FCC and Congress. Apart from the power to legislate, Congress has several means of influencing actions of the FCC.

Because Congress has several means of directly influencing FCC action, members of the FCC pay heed to the frequent letters from members of Congress calling for action on a particular item or advocating a particular result. Pressure from influential members from the leadership or from senior members of the Commerce Committees can often shape the details of FCC action.

The first and most obvious role that Congress has arises from the requirement that the Senate confirm appointees to the FCC. For many years, this meant that the White House picked someone and sent the nomination to the Senate. Over the last several decades, however, this prerogative has become more important because it has become customary (i.e., expected) that the Chairman or the ranking minority member of the Senate Commerce Committee will forward a slate of names from which the President will select a nominee, depending on which party member was going to be appointed. (By law, no more than three of the FCC’s five members can be from the same political party.) Implicit in this practice is the notion that the nomination of someone else will not receive favorable action. The effect of this custom is that the two members from the party which is not in control of the White House (right now, the Republicans) will typically adhere to that party’s philosophy. (This was not always the case in the past; Commissioner James Quello, a nominal Democrat first appointed by Richard Nixon, typically sided with the Republicans on most issues.)

Congress also has the power of the purse. Although it has not been the case in recent years, the FCC’s appropriations have often come with earmarked directions or prohibitions. It is quite likely that in the forthcoming Congress, the Republicans will attempt to use the appropriations process to influence FCC policies. The President can veto an appropriations bill, but if a measure is attached to some very important “must pass” legislation, it may be hard to do. Significantly, however, the fact that President Obama has come out so publicly for Network Neutrality makes it more likely he would veto an appropriations bill that attempted to derail Network Neutrality rules.

One of the most important of the Congressional powers is its oversight function. When the relationship between the party controlling Congress and the FCC is cordial, the oversight process is rather routine, and typically involves hearings and correspondence seeking updates on pending proceedings. However, when the House and/or the Senate is in hands of the opposite party from the FCC Chairman, oversight can pose important obstacles to agency action. Investigations and exhaustive document requests can be a burdensome distraction, requiring the FCC to redirect significant attention and resources.

Perhaps the most interesting way in which Congress can exercise control over the FCC is to use the Congressional Review Act (“CRA”). Passed in 1996 as part of Speaker Newt Gingrich’s “Contract With America,” the CRA provides a mechanism for swift consideration of legislation that would overrule any agency decision adopting a “major rule.” Importantly, like any other legislation, the President may veto a CRA resolution. While the CRA has been successfully employed only once, in 2001, its mere existence may sometimes be enough to deter agencies from adopting controversial rules, or to impel them to alter their substance in response to Congressional suggestions.

Of some relevance to this discussion is the fact that one instance in which the CRA was almost implemented involved the FCC’s effort to lift most broadcast ownership rules in 2003. There was a strong bipartisan reaction to this deregulation decision, and a resolution of disapproval quickly passed in the Senate. The measure was cleared for consideration on the floor in the House, but before there was a House vote, public interest groups succeeded(1) in obtaining a judicial stay of the rules, which were later voided by the court. This obviated the need for Congressional action.

One might wonder, since Congress can always enact legislation, why is there a need for the CRA? The answer is that the CRA provides unique procedures that circumvent the normal rules of the Senate. A CRA resolution cannot be bottled up in committee because 30 Senators can petition to bring it to the floor. Once on the floor, any Senator can move to act upon it. Floor debate is limited to 10 hours (i.e., no filibuster) and no amendments are in order. The resolution may be passed with a simple majority.

According to those who support the goals of the CRA, its principal shortcoming is that the absence of the same special procedures in the House atypically makes the House the place where the legislation is likely to die. This is certainly the case when the House leadership does not want the resolution to move, but the way the House works, it is easy to obtain a vote if the leadership wishes. Thus the CRA is a useful tool only when the Presidency and the House are in control of different parties. However, it is highly likely that there will not be support for a CRA resolution when the Congress and the Presidency are aligned. The notable exception is the effort to override the FCC’s broadcast ownership rules in 2003; where a Republican-controlled Congress was prepared to pass a CRA resolution. Had it done so, it would have been very interesting to see if President Bush would have vetoed it.

Taken together, these tools give Congress considerable influence over the actions of the FCC. But in the end, simple mathematics control. The majority vote of three Commissioners generally prevails.

Notes:

  1. The author was among the counsel to the public interest groups in the 2003 case.

By Andrew Jay Schwartzman.