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Blog Posts by Michael O'Rielly

Delegated Authority: Serious Objections and Solutions

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

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

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

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

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

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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Harmful Consumer Wireless Behavior and Practices

October 14, 2014 - 05:45 PM

Today’s wireless devices are amazing tools that empower people. Our wireless phones, smartphones, tablets, phablets and more allow us to seamlessly communicate, as well as take advantage of all Internet features and functions.  As a result, we have integrated these wireless capabilities into our daily lives. Such increased mobility, however, has led to troubling behavior by some users that deserve everyone’s attention. During my recent trips across our great nation, I was infuriated to hear of continued wireless device misuse. For many reasons, some consumers have yet to see or understand that their risky wireless practices and habits can harm themselves and other people.       

Distracted Driving – The number of people that are killed and injured by distracted driving is staggering. For instance, the National Safety Council estimates that there have been over 810,000 accidents in 2014, or about one every 30 seconds, involving texting on wireless phones by drivers. To put it in more granular form, the Arizona Department of Public Safety found that during a five-month period earlier this year, 10 people died and 380 people were injured because of distracted driving.  And the problem may be getting worse. A 2013 AT&T survey indicated that 49 percent of commuters admitted to texting while driving, up from 40 percent three years ago.

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USF Contribution Factor Over Time

September 11, 2014 - 03:22 PM

The chart below shows the steady increase over time in the FCC’s USF Contribution Factor, which is the percentage of interstate and international end-user telecommunications revenues that telecommunications service providers must contribute to support the ever growing federal universal service fund. Today, the FCC announced the contribution factor has increased for the fourth quarter of 2014 by .4 percent to 16.1 percent. This means that American consumers will pay a 16.1% fee on a portion of their telephone bills for USF.

While there are a number of factors resulting in this trend line, including moving to a more explicit system and shrinking revenues, this path is clearly disturbing and unsustainable. The chart helps highlight that contribution reform is necessary. Also, I reiterate my call for an overall budget cap on universal service, which can help limit the demand placed on the collection side.

Chart-USF-Contribution-Factor-Over-Time
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Alaska: Lessons Learned

September 5, 2014 - 12:49 PM

Fulfilling a commitment I made last year to its congressional delegation, I spent a portion of August traveling throughout Alaska.  I wish to sincerely thank Congressman Young and Senators Murkowski and Begich and their respective staffs for sharing their state with my staff and me.   

Over eight days, I met with many Alaskan communications providers, state and local officials and tribal organizations, and visited several rural health care clinics and schools.  Most importantly, I was able to talk with Alaskans about their communications experiences and future needs, including at community discussions hosted at Old Harbor, Pilot Point and the Bristol Bay Native Association.  From this experience, I came away with a number of valuable lessons learned that I will keep with me in my current role at the FCC.    

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Post Text of Meeting Items in Advance

August 7, 2014 - 12:44 PM

Early in his tenure, Chairman Wheeler launched a laudable effort to reform a number of Commission procedures.  Because I was new to the Commission when ideas were solicited, I generally deferred to agency veterans on the proposals that were put forward.  But now that I am nine months into my term, I have become convinced that there is one significant change in our overall process that would be incredibly helpful: we should post on the FCC’s website the actual text of the items to be considered at our Open Meetings at the same time they are provided to Commissioners.    

Section 19.735-203 of the FCC’s rules prohibits disclosure of the content of items that will be voted on by the full Commission at a meeting or “by circulation” (not at a meeting).  Therefore, as soon as bureau staff sends the “8th Floor” a draft for consideration, the Commissioners are not allowed to reveal the substantive decisions with outside parties.  In other words, at the very moment that I learn the particulars of an important rulemaking upon which I will spend the next few weeks in ex parte meetings listening to stakeholder concerns, I am not permitted to disclose any details of the draft text in order to extract more thoughtful responses. 

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