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New Executive Order on "Improving Regulation and Regulatory Review"

Today President Obama released Executive Order 13563 on the above topic. It is oddly reminiscent of Carter-era Executive Order 12044 that I reviewed here recently at the time of the death of Alfred Kahn and pointed out that the review it started was the origin of the ubiquitous Wi-Fi and Bluetooth. The new EO is similar in many ways, but also goes beyond the predecessor in others. Strictly speaking, it does not apply to FCC as an independent agency, but usually FCC has followed White House wishes on this general level.

The White House summarized the EO as follows:

In this Executive Order, the President requires Federal agencies to design cost-effective, evidence-based regulations that are compatible with economic growth, job creation, and competitiveness. It outlines following guiding principles:  
  • Cost-effective and Cost-Justified: Consistent with law, Agencies must consider costs and benefits and choose the least burdensome path.
  • Transparent: The regulatory process must be transparent and include public participation, with an opportunity for the public to comment.
  • Coordinated and Simplified: Agencies must attempt to coordinate, simplify, and harmonize regulations to reduce costs and promote certainty for businesses and the public.
  • Flexible: Agencies must consider approaches that maintain freedom of choice and flexibility, including disclosure of relevant information to the public.
  • Science-driven: Regulations must be guided by objective scientific evidence.
  • Necessary and Up-to-Date: Existing regulations must be reviewed to determine that they are still necessary and crafted effectively to solve current problems. If they are outdated, they must be changed or repealed.

Note in particular the last 2 points. On the “science-driven” issue the EO states “Consistent with the President's Memorandum for the Heads of Executive Departments and Agencies,"Scientific Integrity" (March 9, 2009), and its implementing guidance, each agency shall ensure the objectivity of any scientific and technological information and processes used to support the agency's regulatory actions.” Hopefully this could improve the technical muddle the FCC often gets involved in spectrum policy deliberations. As a prominent attorney once told me, “Some technical questions really do have answers”.

The “necessary and up-to-date” provision, if aggressively implemented by FCC will remove anachronistic restrictions in spectrum technical rules from a bygone era. Wi-Fi comes from identifying such a problem: the implicit prohibition of spread spectrum in the FCC rules prior to 1985. Who knows what could come out of aggressive action here.

While this EO does not formally apply to FCC, it does apply to NTIA as an Executive Branch agency. It will be interesting to see how aggressively NTIA takes this guidance with respect to the last 2 points. Will NTIA try to make sure their decisions on federal systems and their restraints on FCC-regulated systems are “guided by objective scientific evidence”, not just secretive IRAC deliberations with no effective independent overview?
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