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Blog Posts by Michael O'Rielly

Revamping Predictive Judgments & Interim Rules

by Michael O'Rielly, FCC Commissioner
July 27, 2015 - 02:44 PM

In addition to setting overall timelines for Commission review of agency rules, as I previously recommended, there are two agency practices that warrant re-evaluation:  where the agency relies on a “predictive judgment” to establish a policy or rule; and where the agency adopts an “interim” rule.  In both cases, the Commission supposedly relies on the best information to make a decision that is inherently time limited.  Unfortunately, when utilized, there is often no follow-up with hard facts or final rules.  That means those offering or receiving communications services in the marketplace are forced to adhere to rules based on stale decisions or outdated information.  We can and must do better.

Predictive Judgments

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Setting Timelines for Revisiting Agency Decisions

by Michael O'Rielly, FCC Commissioner
July 10, 2015 - 04:12 PM

All too often, the FCC imposes rules, placing new burdens on companies and affecting the marketplace, without any plan to revisit whether those rules remain necessary or relevant in the future. These decisions, and their attendant costs, can linger for years on autopilot while the FCC turns its attention to other policy matters. One obvious example is the newspaper/broadcast cross-ownership rule, a true anachronism enacted in 1975, but with each year that goes by many other Commission rules that may have been great ideas at the time drift further toward irrelevancy, or worse, become affirmative barriers to innovation. Quite frankly, in the age of hyper-speed “Internet years,” the Commission’s approach to some issues is stuck in the age of rabbit ears, and this problem is expanding exponentially right along with our rules.

While the FCC has statutory obligations to periodically review certain aspects of its rules, such as section 11 of the Communications Act, these requirements are generally given short shrift, when they are adhered to all. This is certainly an area where the agency needs to make significant improvement, but that doesn’t seem to be in the cards anytime soon.

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Accountability for Enforcement Penalties & Fines

by Michael O'Rielly, FCC Commissioner
May 14, 2015 - 04:05 PM

The Commission’s enforcement procedures and actions have been receiving attention of late, but there is a deficiency in the process that has not been mentioned.  To the extent that the Commission has rules in an area, applicable parties are required to comply.  Those who don’t are subject to enforcement actions, with due process rights for alleged violators, including the option of settling the matter through a consent decree.  For the enforcement process to work, however, all of its steps must be carried out efficiently and swiftly from beginning to end.  One problem with the current process – and another area for the newly formed Process Review Task Force and/or Congress to examine – is that the Commission has no idea whether parties are actually satisfying the terms of its enforcement actions, particularly those that go to the forfeiture stage.         

Under the current structure, the Commission does not have a process in place to know whether entities actually pay the fines or penalties assessed pursuant to an enforcement action.  In other words, once a Forfeiture Order is finalized, it somehow seems to drop off the FCC’s radar.  This came as a surprise to me as I prepared for recent Congressional hearings.  I requested that Enforcement Bureau provide a detailed spreadsheet of the 75 most recent Notices of Apparent Liability (“NAL”) and Forfeiture Orders.  Disappointingly, the bureau answered that it didn’t track collections resulting from Forfeiture Orders as a matter of course. 

This whole situation reminds me of an early episode of the sitcom Seinfeld.  In it, Jerry has a dispute with a car rental agent over whether the car he reserved is actually available.  One of television’s most classic exchanges went as follows:

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Problems with FCC Advisory Committees

by Michael O'Rielly, FCC Commissioner
May 1, 2015 - 03:06 PM

Through this blog, I’ve raised quite a few issues with the current operations of the FCC, especially the workings of the so-called 8th Floor, and the critical need to improve transparency and accountability. Let me add another area in need of review and reform: the Commission’s advisory committees (and councils). Specifically, I believe changes are necessary in such areas as the appointment process, internal operations, work assignments, reporting requirements, staff involvement, and implementation of recommendations. In other words, a top-to-bottom examination and overhaul is in order.

Let me be clear: advisory committees can be a good thing – if established and used properly. Seeking outside expertise and input should be encouraged, and it’s why I have advocated that all interested parties should weigh-in on our proceedings. It makes all the sense in the world to seek advice and technical knowledge from those integrally involved with developing, deploying or using a particular technology or set of technologies, or those who are active users of said technology.

A fundamental problem with the current workings of the non-statutorily set advisory committees, however, is that the Chairman’s office has absolute and complete power over every aspect of their existence. Sure, individual Commissioners are invited to say a few words to open a meeting or congratulate their good works, which I often do, but not much else. The membership, selection of the committee chairs, timing of any reports and/or recommendations, and all other aspects of their operations are determined solely by the Chairman. If all of the decision-making is in the hands of the Chairman, how can a committee’s outcomes ever be considered bipartisan, or better-yet, nonpartisan and independent?

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Guest Speakers & Questions at FCC Open Meetings

by Michael O'Rielly, FCC Commissioner
April 10, 2015 - 01:26 PM

Over the years, Open Meetings at the FCC have taken a variety of formats.  At one time, Open Meetings were working sessions where issues were debated live and staff were questioned about different policy choices.  More recently, they have been summaries of decisions already made that are capped off by an official vote.  Lately, it has even become common to invite select guest speakers to Open Meetings to provide testimony in addition to the Bureau presentations.    

Guest Witnesses

While I fully support improving the functionality of the Open Meetings in terms of structure and process, I am not convinced that adding guest speakers is beneficial or appropriate.  While witnesses may provide valuable insight into issues the Commission is considering, these presentations come far too late in the process to inform the outcome of an item.  Indeed, they fall within a no-mans-land where they are practically too late to be ex partes but technically too early to be congratulatory.  Therefore, it’s not clear what substantive value is gained by inviting stakeholders to speak at an Open Meeting.  If the only purpose is to add a glitzy spectacle, then that’s inappropriate and perhaps not demonstrative of the proper decorum befitting a federal regulatory agency.    

Instead, it seems that the purpose of inviting guest speakers is to further promote the viewpoint championed in the item about to be adopted.  And the more controversial the item, the more likely we are to receive such presentations.  But, the lengthy Bureau presentations and approving statements already accomplish that goal.  There is no need to add to the chorus or to try to further rebut or dilute dissenting opinions.    

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Consider a New Way to Combat Pirate Radio Stations

by Michael O'Rielly, FCC Commissioner
April 8, 2015 - 10:43 AM

Everyone should agree that pirate radio stations – by any definition – are completely illegal.  Given other responsibilities and obligations, however, the Commission’s resources are stretched, and it seems that stopping pirate radio is not at the top of the priority list.  While this reality is not surprising, we need to consider other ways to remove the scourge that is pirate radio.  One approach would be to give broadcasters a new right to use the legal process to go after such stations, letting loose broadcasters’ legal bloodhounds to root out the violators. This isn’t a new idea as it has been done in other circumstances outside of spectrum policy, such as to combat email spam, and we should consider it here, too.

It is important to start by recognizing the truth about pirate radio stations. They are not cute; they are not filling a niche; they are not innovation test beds; and they are not training grounds for future broadcasters.  If broadcasting were a garden, pirate radio would be poisonous crabgrass.  Put another way, pirate radio participants are similar to outlaws who rob a retail store and then sell the stolen inventory online.  In practice, pirate radio causes unacceptable economic harm to legitimate and licensed American broadcasters by stealing listeners.  Pirate operators also cause “harmful interference” that inhibits the ability of real broadcasters to transmit their signals and programming, which provide such vital services as emergency alerts, critical weather updates, political information and news.  And, pirate radio can disproportionately impact minority-owned stations as they undercut their financials and can cause harmful interference to legitimate stations serving minority populations.

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FCC’s Pre-Adoption Process Also Needs Work

by Michael O'Rielly, FCC Commissioner
April 1, 2015 - 12:55 PM

I am pleased that the Chairman has now initiated a new Process Review Task Force, and there is much to do.  Working with my colleagues and staff, we need to undertake a holistic review and make necessary and meaningful changes to promote fair, open, and efficient procedures that complement Congress’s process reform efforts.  I have already offered several concrete ideas, including improvements to delegated authority, editorial privileges, and advance publication of meeting items, that must be considered by the task force and, if appropriate, by Congress. 

Now, I want to draw attention to yet another aspect of FCC procedure that warrants significant review:  the FCC’s pre-adoption process for Commission meeting items.  For those who may not be familiar, Commissioners receive meeting items from staff, on behalf of the Chairman, not less than three weeks in advance of a Commission Agenda Meeting (this is the sole, additional document I believe can and should be made public at the time of its circulation inside the Commission).  During the first two weeks, outside parties may meet with Commissioners and staff to advocate their views and seek changes, if necessary.  The last week of the three-week period is the Sunshine period.  During that time, parties may not proactively lobby the Commission, but Commissioners and staff are permitted to ask them questions.  The Sunshine period allows Commissioners time to contemplate the complex issues, discuss matters with other offices, and respond to any issues raised during the prior two weeks.        

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AWS-3 Auction: Lessons Learned

by Michael O'Rielly, FCC Commissioner
March 27, 2015 - 03:10 PM

From my perspective, the recent AWS-3 auction has to be deemed an overall success.  It is hard to say otherwise when it released 65 megahertz of spectrum for more efficient purposes, allocated 1611 licenses to current and prospective wireless providers to expand wireless broadband services, and grossed revenues totaling $44.9billion (net revenues are estimated at $41.3 billion).  Nonetheless, this auction highlighted many important issues and raised quite a few concerns.  Here are some takeaways that will help shape my views as we consider future spectrum policy.

Licensed vs. Unlicensed Spectrum.  This auction clearly demonstrates there is still a critical need for licensed spectrum in our overall spectrum framework.  Although some argue that the future lies only with unlicensed or shared spectrum, this view ignores the fact that our nation’s commercial wireless carriers still seek exclusive spectrum in order to be able to maintain quality of service and network control.  The simple proof of this is the bidding activity, extensive bidding rounds and the final revenue figures for the AWS-3 auction.  Having waited almost seven years since the 700 MHz auction and facing huge projected growth in wireless data usage, participants fought for eleven weeks to win the exclusive right to use the available licenses.  And these entities, along with those that didn’t participate or win large numbers of licenses, are reportedly looking closely at the broadcast incentive auction to acquire additional licensed spectrum. 

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USF High-Cost Program: Best and Realistic Timelines

by Michael O'Rielly, FCC Commissioner
March 24, 2015 - 01:27 PM

According to the FCC's most recent report, nearly 14 million Americans lack any access to fixed broadband. In an effort to remedy this, in 2011, the Commission established the Connect America Fund (CAF) within the USF high-cost program to provide federal universal service support to private carriers serving high-cost parts of the nation. While progress has been made to implement various parts, thanks to the great work of staff, there hasn't been a sense of urgency at the Commission due to a lack of energy and commitment to complete the hard tasks that remain. Sadly, unless something significant changes, unserved Americans will have to wait even longer to get access to broadband.

Like many, I was pleased that, at recent Congressional hearings, Chairman Wheeler provided additional insight on the timeline for CAF reforms to Members of the House and Senate who want to see faster progress, as I have advocated for over a year. It's especially good news to hear the Chairman promise to complete a CAF not just for the larger rate-of-return (ROR) carriers but also for the smaller ROR carriers by the end of this year and to hold a CAF Phase II auction for price cap areas next year. I take him at his word that he intends to try to meet his commitments. The problem is that, when I mapped out the steps that would need to occur to meet these promises, it became obvious that it's extremely unlikely that the Commission will be able to adhere to that schedule. Many of the individual actions and program steps are interconnected. For instance, it seems unlikely that the Commission would set up a CAF for very small ROR carriers without knowing which carriers will opt-in to a CAF ROR model.

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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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