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SEPARATE STATEMENT OF COMMISSIONER HAROLD FURCHTGOTT-ROTH

Re Public Notice, Commission Seeks Comment on Biennial Review 2000, Staff Report and Rule Appendix (rel. September 19, 2000).

I wish to applaud the Chairman and the staff for their extensive efforts to generate a 2000 Biennial Review that vastly improves on the 1998 version. Today's report is far more comprehensive and rigorous than our effort two years ago.1 It also comes much closer to achieving the goals of Section 11. However, it is still less than perfect.

Going forward, it is important that the Commission continue to improve its efforts to fulfill the substantial task imposed by the biennial review statute. The Act provides that the Commission "shall review all regulations . . . that apply to . . . any provider of telecommunications service; and shall determine whether any such regulation is no longer necessary in the public interest as a result of meaningful economic competition . . . ." Although the staff report encompasses every relevant rule Part, today's report does not detail that review on a rule-by-rule basis. It is my hope and expectation that future biennial reviews will provide the public with a rule-by-rule rationale for the continued utility of each individual regulation. Although this year's report is far more detailed than 1998's review, the public is still not able to identify and assess the rationale for each individual rule. Nor can the public determine the particular reasoning that the Commission used to determine whether any rule: (1) was once in the public interest; (2) remains in the public interest today; or (3) will remain in the public interest in the future. Nonetheless, today's report is an important step forward in achieving that ultimate goal.2

Public participation in the biennial review process is a critical element in its success. The public is in the best position to assess whether individual rules have outlived their usefulness or should be modified. This is an important opportunity for the public to comment on how the FCC can better do its job. These comments will form an important foundation for the proceedings that will grow out of the staff report.

As the public examines today's staff report, I would like to call particular attention to a few key elements. First, the public notice seeks comment on a proposal to incorporate a biennial review analysis in each new rulemaking proceeding. Such an initial analysis would set forth the original purpose of the rule, the means by which the rule was intended to advance that purpose, and the state of competition in the relevant market at the time the rule was promulgated. This analysis would be included in each proceeding that created a new rule. Then subsequent biennial reviews, rather than recreating the rationale for a given rule from archives, will be able simply to assess whether the original basis is still valid. Such an open and transparent process will also facilitate the rule-by-rule examination that I hope will be a part of future biennial reviews.

The Office of the Managing Director has also set forth a proposal that warrants special attention. The Managing Director proposes to create an intelligent, integrated, information management system known as the "Intelligent Gateway."3 As part of this proposal, the staff report recommends that the Commission consider development of a public tracking system that will allow the public to monitor the procedural status of items as they move through the Commission. I have long voiced concern over our policy process that seems to require parties to retain "inside the beltway" lobbyists to pierce the veil of Commission proceedings. The creation of a public tracking system would be an important step towards elimination of some of the unnecessary opaqueness that has been a part of our decision-making.

The report also touches on one other issue that I have become particularly concerned about: the rigorousness of our Regulatory Flexibility Act analysis.4 In these rapidly evolving economic times, it is particularly important that the Commission carefully examine the impact of its rules on small businesses. The biennial review process provides another opportunity for the small business community to suggest changes to our regulatory policies that may lessen the regulatory burden without undermining our obligations under the Act. In the future, the Commission should closely examine its policy development process to ensure that small business considerations are part of the policy development process, not an administrative afterthought.5

On balance, I wish to applaud the Commission's staff for today's report. The final product has only been possible because staff willingly tackled biennial review in addition to their already significant workloads. In particular, congratulations go out to the biennial review team's leadership: Mania Baghdadi, David Furth, Lisa Gelb, Anna Gomez, Jake Jennings, Cheryl Kornegay, Jeff Lanning, Michael Marcus, Pam Megna, Claudia Pabo, Richard Welch, and Jack Zinman. Each of these team members has gone above and beyond the call of duty. I would also like to take this opportunity to thank William Trumpbour, a former legal intern in my office, who devoted significant energies to producing the database that assisted in the preparation of the staff report. Finally, I would like to thank Anna, Jeff, Pam, Lisa and David for their leadership, hard work, and regular briefings on this important project. I look forward to working with them, the rest of the staff and the public in the months ahead as we move to the next stage of the review.


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1. Separate Statement of Commissioner Harold Furchtgott-Roth, 1998 Biennial Review, Notice of Inquiry, 13 FCC Rcd. 11276 (1998).

2. In particular, I wish to applaud the efforts of the International Bureau (IB). IB's detailed and ambitious regulatory streamlining proposals are precisely the type of innovative and deregulatory initiatives that biennial review is designed to foster.

3. Report at 207-209.

4. Report at 176-177.

5. In addition to these areas, the Wireless Bureau has announced its intention to begin a review to determine whether the spectrum cap is necessary. Report at 106. I have long voiced concern about the utility of the caps. See Separate Statement of Commissioner Harold Furchtgott-Roth in 1998 Biennial Regulatory Review - Spectrum Aggregation Limits for Wireless Telecommunications Carriers, Report and Order, 15 FCC Rcd 9219 (1999). I look forward to initiation of that proceeding and the development of a full record on spectrum cap issues.