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Blog Posts by Michael O'Rielly

Fixing Flawed and Non-Existent “Editorial Privileges”

by Michael O'Rielly, FCC Commissioner
March 9, 2015 - 03:58 PM

Maybe the only good thing to come from the Commission’s net neutrality proceeding is that it shined a spotlight on a dark corner of FCC process: the flawed procedure for finalizing and releasing Commission documents after they are voted on by the Commission at an Open Meeting.  Those who are not familiar with FCC procedures might think that the work ends once the Commission has voted on an item.  In truth, it is just the beginning of the end. 

The fact that there is so much confusion, and that Commission staff felt the need to issue a “Nothing to See Here” blog, shows that FCC processes are counterintuitive and unnecessarily opaque.  I’ve questioned other FCC procedures previously (here and here).  Now I am suggesting we fix the post-adoption process as well.  At the same time, the FCC really ought to take a fresh look at all of its procedures, actually codify the specific ones that still make sense, and post them so that the official process is more transparent and better understood by all. 

Editorial Privileges

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Affirmatively Expand Permissible Foreign Ownership

by Michael O'Rielly, FCC Commissioner
March 3, 2015 - 04:03 PM

For decades, extensive studies and corresponding analysis have demonstrated the vast benefits of removing barriers to international trade. Our experiences from previous trade agreements have shown the direct payoffs of eliminating or reducing artificial barriers and protectionist measures. Among countless other benefits, increased trade has produced higher standards of living for Americans, expanded foreign markets for our products, reduced costs for goods and services. It's also one area where many Republicans and Democrats in Congress and elsewhere, as well as the current Administration, strongly agree. Fortunately, the Commission has the opportunity to further this bipartisan cause by reducing barriers to foreign investment in the U.S. communications marketplace. Let's seize this moment!

The Communications Act already affords the Commission the flexibility to relax restrictions on foreign investment in certain radio licensees, including broadcast and commercial wireless. Specifically, current law prohibits greater than 25 percent of foreign investment in a U.S. entity that controls, directly or indirectly, a U.S. radio licensee, but only if the public interest would be served by the Commission refusing or revoking a license. In other words, the Commission is free to permit a higher foreign limit or waive the limit altogether, which was confirmed in the Commission's unanimous November 2013 Declaratory Ruling. Disappointingly, the Commission declined, at that time, to make such a positive step, deciding only to confirm that requests from current or prospective broadcast licensees seeking approval for foreign investment above the threshold would be considered on a case-by-case basis.

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Embrace the Internet for EEO “Widely Disseminated Rule”

by Michael O'Rielly, FCC Commissioner
February 20, 2015 - 03:21 PM

As I have said previously, I believe the Internet is the greatest man-made invention in my lifetime. We spend a considerable amount of time and effort at the Commission determining how best to remove barriers to its deployment, studying and reporting its speed and availability, scolding broadband companies for not doing enough and, in some cases, providing American ratepayer subsidies to ensure it will reach all corners of our country.  Therefore, it comes as a surprise – and a disappointment – that we don’t embrace it when it comes to compliance with existing Commission rules.  I previously highlighted that the Internet was the appropriate vehicle for providing broadcast contest rules, and the Commission has been updating our regulations accordingly, but the Internet may be just as important for communications companies trying to attract a diverse workforce. 

The Commission’s Equal Employment Opportunity (EEO) rules require broadcast and cable companies to distribute information far and wide—and provide evidence of such outreach—when they have open positions to be filled.  Specifically, the rules require broadcasters with five or more, and multi-channel video programming distributors with six or more, full-time employees to cast a wide net to recruit minority and female applicants for all full-time job vacancies. These employee search efforts are required to be part of companies’ public files, which are either currently online or likely to be in the near future, and are subject to random Commission audits to ensure compliance and analyze performance.  And companies are subject to enforcement actions when EEO rules are not followed.    

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Sound Principles for Lifeline Reform

by Michael O'Rielly, FCC Commissioner
February 13, 2015 - 03:51 PM

Over the last few years, the Commission has taken action to reform each of its universal service distribution programs to refocus them on broadband. The only program outstanding is the Low-Income or "Lifeline" program. Given recent pronouncements, I expect some changes to Lifeline in the not-too-distant future.

The Lifeline program was originally intended to provide low-income consumers with a discount to help make wireline telephone service more affordable. Over time, it began to pay for prepaid wireless service, and the "discount" often covers the entire monthly bill. That shift has more than doubled the size of the program. It also created problematic incentives that opened the door to waste, fraud and abuse that have never been sufficiently resolved. This is unacceptable.

The Commission has taken important steps to rein in program excesses, including by requiring annual eligibility re-certifications and instituting a database (the NLAD) to screen for duplicate subsidies. However, it appears that abuses are continuing.

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Delegated Authority: Serious Objections and Solutions

by Michael O'Rielly, FCC Commissioner
February 2, 2015 - 03:47 PM

I am fortunate to work at an agency with incredibly dedicated and talented staff.  The vast majority of personnel at the FCC are hardworking public servants, intent on conscientiously carrying out our work overseeing the communications industry.  The Daily Digest shows how much they accomplish every single day on a wide range of issues.  Generally, I support their efforts.

Notwithstanding my support for the staff’s work, there are certain aspects of the FCC’s duties that should be reserved and addressed by the full Commission.  Chief among those are matters that are new or novel.  The FCC’s rules reserve new or novel issues for a Commission vote—and there are good reasons for doing so.  That way the full Commission has the opportunity to set precedent on matters of first impression that can have significant and long-lasting legal and policy consequences.  It is also helpful for the Commissioners, with their broader perspectives, to act on issues that may have implications for other segments of the communications industry.  Moreover, it ensures that parties that want to challenge final FCC decisions are able to do so in a timely manner.  It does little good to have a decision be decided at the bureau level when everyone knows the result will be appealed to the full Commission (unless the goal is to intentionally fail to act on an application for review).   

At times, the Commission has, by order, given additional authority to the Bureaus and Offices, beyond what is already provided for in the rules.  Such ad hoc delegation can sometimes be permissible.  However, looking back over the last 30 years, that seems to be the exception, not the norm.  And past delegations shouldn’t become a justification for future delegations.  Why am I hamstrung by a decision to delegate an issue to staff made by a Commission years ago? 

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Municipal Broadband: A Snapshot

by Michael O'Rielly, FCC Commissioner
January 30, 2015 - 03:32 PM

Those who wish to preempt state laws impacting municipal broadband networks often cite up to 21 states that have limitations or restrictions on such networks. A closer inspection of the specific state laws being criticized, however, offers a much different picture regarding the scope and particulars of the specific state limitations. In other words, if the Commission were to preempt state laws (assuming it has requisite authority), what "barriers" would it be preempting? An FCC filing by the Coalition for Local Internet Choice (CLIC), an advocate of municipal broadband networks, is a good place to start this analysis. The chart below reflects CLIC's latest filing with the Commission and groups individual states based on common limitations or restrictions (states with multiple limitations are reflected in the chart below).

Upon review, it is clear that many of the limitations or restrictions appear to be justified practices by state governments and should be excluded from any preemption discussion.  Beyond the extensive rhetoric and absent Congressional direction, nullifying state-enacted taxpayer protections to further a political goal sends the Commission down an extremely troubling path.

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Update on Advance Posting of Commission Meeting Items

by Michael O'Rielly, FCC Commissioner
January 16, 2015 - 02:53 PM

In August, I wrote a blog post urging the Commission to post on its website the actual text of the items to be considered at our Open Meetings at the same time they are provided to Commissioners.  I made the suggestion because the inability of the public to obtain a complete picture of what is in a pending notice of proposed rulemaking or order routinely leads to confusion over what exactly is at stake.  Making matters worse, Commissioners are not allowed to reveal the substantive details to outside parties.  We can’t even correct inaccurate impressions that stakeholders may have received, and we are barred from discussing what changes we are seeking.  This barrier to a fulsome exchange can be extremely frustrating for all involved.

Despite positive feedback from people at the FCC, outside parties, Members of Congress, [1] and the general public, four months later, we have yet to post a single meeting item in advance.  Moreover, the lack of full disclosure and transparency has continued to be a problem as some parties have not been fully briefed on recent items, such as the recently adopted 911 Reliability NPRM, while others are not briefed at all. 

The reason that nothing has happened, I am told, is that there are two basic concerns with the proposal:  1) that it could be harder to comply with the Administrative Procedure Act (APA); and 2) that it could be more difficult to withhold documents under the Freedom of Information Act (FOIA).  I do not find either argument persuasive or insurmountable. 

APA

The APA requires reasoned decision-making based on full and fair consideration of the record.  That is, we need to review all of the comments and ex partes in a proceeding and respond to the substantive issues raised. 

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Expanding FCC Use of Electronic Communications

by Michael O'Rielly, FCC Commissioner
January 14, 2015 - 01:29 PM

Although a lot of work has been done over the last few years to integrate some aspects of our modern communications tools into the workings of the Federal Communications Commission, more is needed to reduce the Commission’s reliance on the United States Postal Service (USPS).  While I have no particular problem with the USPS, the right thing to do is to embrace electronic technology and set it as the default for any communication or action by the Commission, thereby saving a bit of money and promoting efficiency. 

In fairness, the Commission has been actively trying to move forward on electronic licensing.  In December, the Commission’s Wireless Telecommunications Bureau released a Public Notice, after seeking public input, announcing that, effective 30 days after publication in the Federal Register, it would implement paperless licensing.  Based on an idea raised in Chairman Wheeler’s FCC process reform effort, it was decided that the Commission would stop issuing and mailing paper licenses for current authorizations to licensees and registrants, unless an entity notifies the Commission that it still wants to receive official licenses by mail.  Under this framework, almost all electronic versions of Commission authorizations stored in two licensing systems (the Universal Licensing System and the Antenna Structure Registration System) would be deemed as official Commission documents.  Considering that the Commission issues almost half a million wireless licenses and authorizations per year at a cost of over $300,000, this could result in substantial savings.  Hopefully, the new paperless system will go into effect shortly.

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Lessons of the 2014 Plenipot

by Michael O'Rielly, FCC Commissioner
November 17, 2014 - 02:33 PM

Last month, I was honored to join FCC Chairman Tom Wheeler as part of the U.S. delegation to the 2014 International Telecommunication Union’s (ITU) Plenipotentiary Conference (Plenipot) held in Busan, South Korea.  Since the conference recently concluded, it seems the appropriate time to share my thoughts about this experience.  Before doing so, however, I must express my deep appreciation to the head of the delegation, U.S. Ambassador Daniel Sepulveda of the Department of State, the FCC staff, the members of the U.S. delegation, and all dignitaries with whom I was able to meet, including the newly-elected Secretary-General of the ITU, Mr. Houlin Zhao of China, and Deputy Secretary-General, Mr. Malcom Johnson of the United Kingdom. 

As a member of the delegation, I attended the official plenary meetings of the conference, which included the elections for various ITU positions and discussions of various resolutions, and joined U.S.-led bilateral meetings with representatives of countries present at the Plenipot, including Germany and Chile.  I attended meetings with a subset of our delegation to discuss U.S. positions on specific issues (e.g., cybersecurity and Internet governance).  In addition, I participated in a number of FCC-led bilateral meetings with officials from the regulatory agencies of other countries, including Pakistan, Lebanon, Ghana, Australia and Guinea-Bissau.  These meetings put into perspective the high standing that the FCC has internationally, and I was able to share the Commission’s pro-market approach to spectrum auctions, unlicensed spectrum, broadband deployment, and many other issues. 

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More Data: Pocket Dialing

by Michael O'Rielly, FCC Commissioner
October 30, 2014 - 04:25 PM

In response to my recent blog post regarding the harmful consumer practice of pocket dialing, I received a letter from Kelly Dutra, the Director of the Washington County Consolidated Communications Agency (WCCCA) in Beaverton, Oregon.  The letter begins, “I read with interest the Business Week article ‘FCC Commissioner: Butt-Dialing is Taxing 9-1-1’ and let you know you are right on target.  They account for over 30% of our wireless 9-1-1 calls.  In 2005 we installed a system that all wireless calls must pass through to make it to a Calltaker.  The wireless 9-1-1 caller must speak or press any key for the system to recognize it as an actual call to be passed through.” 

Ms. Dutra continued, “I have attached a separate sheet showing numbers from 2012 to current. I’ve also been studying the number of butt calls that make it through the system we just began including in our weekly, monthly, and annual reports.  The device we have in place blocks on average 30% but another 15-20% of the calls that make it through the system are still butt dials with enough noise in the background for the system to treat it as an active call.”

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