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ACA Notes OMB Official's Support For Regulatory Flexibility

The American Cable Association noted that in a recent speech, a senior Obama Administration official stressed the importance of following the Regulatory Flexibility Act (RFA) and understanding the impact of regulations on small business before the rules take effect.

The speech, "Open Government is Analytic Government (and Vice-Versa): Remarks on the Occasion of the 30th Anniversary of the Regulatory Flexibility Act" was delivered Sept. 21 by Cass R. Sunstein,  Administrator of the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget.

"Mr. Sunstein's speech was significant because it reinforced ACA's view that the Federal Communications Commission may not apply common carrier regulation to small broadband access providers before the agency has conducted regulatory flexibility analyses under the RFA and the Administrative Procedure Act," American Cable Association President and CEO Matthew M. Polka said. "ACA is concerned that the FCC might adopt costly and burdensome broadband regulations without performing the required regulatory flexibility analyses."

According to the White House, OIRA reviews all collections of information by the Federal government. OIRA also develops and oversees the implementation of government-wide policies in several areas, including information quality and statistical standards. OIRA reviews draft regulations under a longstanding executive order.

Under Chairman Julius Genachowski, the FCC has outlined a plan to regulate broadband access providers under some common carrier provisions of the Communications Act that were developed to oversee the conduct of monopoly telephone companies decades before the advent of the global Internet.

In his remarks, Sunstein said that correct regulatory choices are made based on the ability to identify "new and creative approaches" that help to promote entrepreneurship, innovation and  competitiveness.

He added, "These points have special importance in a period in which it is crucial to consider the effects of regulation on small business - and to ensure, in accordance with the first declaration of purpose in the Regulatory Flexibility Act, that agencies 'seek to achieve statutory goals as effectively and efficiently as possible without imposing unnecessary burdens on the public.'"

Sunstein's office enforces the Paperwork Reduction Act (PRA). Prior to his arrival, OMB relied on the PRA to invalidate as too burdensome cable leased access rules adopted by the FCC in 2007. OMB repeatedly faulted the agency for failing to take into account the additional costs, additional staffing, and risks to proprietary information that the rules would impose on cable operators.

In his speech, Sunstein said the RFA requires federal agencies to "‘look before they leap,' obtaining a sense of the consequences" of regulatory action before it is adopted.

 

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