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Re 2000 Biennial Regulatory Review (rel. January 17, 2001)

The biennial review process has taken another significant step forward with today's item. By providing a subpart-by-subpart analysis of the Commission's rules, the 2000 review provides a meaningful opportunity for debate about each section of our rules. I also wish to applaud those parties that filed comments on the staff report. Their input is an invaluable resource in this process. Overall I am heartened that the 2000 review comes much closer to achieving the goals of Section 11 than the 1998 version.1

However there is still much work to be done on all sides to make the Biennial Review process more productive, complete, and compliant with the intent of Section 11.

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 . . . ." In order to fulfill the requirements of the statute, I believe the FCC must review its regulations on a rule-by-rule basis. Thus future biennial reviews should provide the public with a rule-by-rule rationale for the continued utility of each individual regulation.

While biennial review imposes an obligation on the Commission to perform this analysis, it also provides an important opportunity for private parties to advocate the abolition or modification of burdensome regulations. In this case, eighteen parties filed initial comments and four filed replies. While I appreciate these significant contributions, I also encourage other regulated companies to take an active role in this process. Private parties are in the best position to judge the impact of meaningful economic competition. The Commission needs their help to generate a meaningful biennial review.2

As I have stated before, the biennial review is not a burden to be endured or a hoop through which we must dutifully jump every other year. It is, instead, an intellectual prism through which we should evaluate each of our regulatory choices. It is also an opportunity to keep our regulations consistent with marketplace and technological change. This process requires constant vigilance and a commitment to the core philosophy of the statute. As the Commission moves forward, it is my sincere hope that we will devote full-time year-round staff to this endeavor. Such a commitment will ensure that the biennial review process attains the prominence and resources it requires and deserves.

A few elements of the report merit particular attention. First, we propose to incorporate a biennial review analysis into 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.3 This analysis would be included in each new rulemaking. Then subsequent biennial reviews, rather than recreating the rationale for a given rule and the concurrent state of competition from archives, will be able simply to assess whether the original basis is still valid. Such an open and transparent process also serves to facilitate a rule-by-rule Section 11 review.

I am also encouraged by the proposal to create an intelligent, integrated, information management system known as an "Intelligent Gateway."4 Such a gateway should include a 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 the apparent need of outside 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.

Finally I wish to acknowledge the fine work of the FCC's staff on this project. They have done an impressive job of improving the biennial review paradigm. Their hard work and dedication have made today's voluminous report possible. In particular I once again wish to express my personal appreciation to the leaders of the Biennial Review team: Mania Baghdadi, David Furth, Lisa Gelb, Anna Gomez, Jake Jennings, Linda Kinney, Cheryl Kornegay, Jeff Lanning, Elizabeth Lyle, Michael Marcus, Pam Megna, Claudia Pabo, Yog Varma, Richard Welch, and Jack Zinman. Yog and Elizabeth merit special praise for their willingness to pick up the biennial review baton for this final stretch run.

In the months ahead, I look forward to working with the staff, my fellow commissioners, and private parties to implement the important initiatives in today's report.

1. The 2000 effort is a vast improvement over the 1998 edition. Separate Statement of Commissioner Harold Furchtgott-Roth, 1998 Biennial Review, Notice of Inquiry, 13 FCC Rcd. 11276 (1998).

2.In this regard, it is my hope that future biennial reviews will provide for a longer notice and comment period.

3.Staff Report at 11. The Staff Report indicates such an analysis will be performed "where relevant." Id. In my view, the state of competition when any rule is adopted creates an important benchmark from which to assess the changes in competition at the time of the next biennial review. Because all regulations are subject to the review, I believe the state of competition is always relevant. However, in the subsequent biennial review the Commission is always free to decide that changes in the state of competition do not alter the need for the regulation.

4.See Report at 60.