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Blog Posts by Michael O'Rielly

Rethinking Outdated Voice Regulations

by Michael O'Rielly, FCC Commissioner
November 12, 2015 - 02:09 PM

With old school switched access telephone service on a steep decline, accounting for an ever smaller proportion of total voice connections, it may come as a surprise that the FCC continues to regulate incumbent telephone companies as “dominant” providers. While it is true that incumbents still account for most of the remaining switched access lines, that’s no longer a useful or relevant way of looking at the voice market. Consumers have an abundance of options to choose from when they want to make a call—to the extent they are even making calls these days. It is time for the FCC to see market realities and eliminate the requirements associated with this supposedly “dominant” status.

The waning relevance of switched access phone service in the voice market is well documented, including in the FCC’s own Local Telephone Competition Reports. Since the peak over a decade ago, the number of incumbent switched access lines has fallen by more than 50 percent, and incumbent switched access minutes of use have dropped by more than 70 percent. In 2013, less than one-third of American households purchased an incumbent switched access service, and that figure is projected to drop to under 20 percent by the end of this year.

The reason is that consumers can choose from a wide array of competing services. The 2014 Local Telephone Competition Report shows that between December 2010 and December 2013, interconnected VoIP subscriptions increased at a compound annual growth rate of 15 percent, and mobile telephony subscriptions increased at a compound annual growth rate of 3 percent, while retail switched access lines declined by 10 percent a year.

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Improving Broadcasters’ Physical Security

by Michael O'Rielly, FCC Commissioner
September 29, 2015 - 03:55 PM

The Commission’s effort to require online public inspection files for most television and radio broadcast stations (and others) brings with it the opportunity to improve the physical security of broadcast stations. Simply put, once the public is able to view these documents online, there should be no need for public access to broadcast station premises. Given past attacks on station employees and the physical risks these individuals can face, it is all the more important that the Commission clarify our rules so that if any station makes its public inspection file available online – either as required by our rules or on its own initiative – it is no longer required to make its facilities or premises open to the public. This positive step will improve the safety of broadcast stations while enhancing public access to key records.

Across our nation, local broadcasting personnel often become real celebrities in their communities. In many instances, people see or hear a station’s on-air talent on a daily or weekly basis, and find them throughout the community performing various official and public service functions. From on-air broadcasting and investigative reporting to charity fundraising and many other functions, station employees are the face of broadcasters in cities, towns and localities throughout America. These efforts are part of the reason that broadcasters and their hardworking staff are widely celebrated.

Unfortunately, the exposure and notoriety from such high profile professions in today’s media driven environment can lead to greater safety risk for station personnel. We all know there are some number of unstable individuals interacting in every society, and broadcast station employees can be particularly vulnerable to threats or actual harm, including physical assault or worse.

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A Draft Pirate Radio Policy and Enforcement Statement

by Michael O'Rielly, FCC Commissioner
September 24, 2015 - 12:12 PM

This past summer, when the Commission was considering an order to close several of the Enforcement Bureau’s field offices and reduce field agent positions, a number of entities raised concerns about how this reorganization would impact our efforts to combat pirate radio. It was hard to imagine that the heat would be turned up by an Enforcement Bureau further constrained by fewer agents and a smaller footprint. But assurances were made that a sleeker, streamlined Enforcement Bureau would be able to perform all of its duties with even greater efficiency. When further concerns were raised, new language was even added to the eventual order promising a revitalized enforcement effort against illegal broadcasters via development of a "comprehensive policy and enforcement approach."

At the time, I questioned how long it would take to develop and adopt such a simple document. I even queried the Enforcement Bureau chief whether it could be done by the end of the summer, but no timetable was provided in our friendly exchange. To my knowledge, nothing further has emerged since the adoption of the field reorganization order.

So, in the interest of furthering the discussion and getting the ball rolling on our unanimously-approved promise of a policy and enforcement approach for pirate radio, I offer the below draft. I hope that this small step, which did not take a substantial time commitment or resources, will renew focus on the Commission’s difficult, but fundamental, obligation to police our spectrum and assist in the resolution of instances of harmful interference on behalf of radio broadcasters and all other spectrum users, who are charged with serving the American people.

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Steering into the Future with More Wi-Fi by Sharing the Upper 5 GHz Band

September 16, 2015 - 04:42 PM

Earlier this year, we joined together to write about making more space for Wi-Fi by exploring sharing opportunities in the 5850-5925 MHz band, or 5.9 GHz band.  More unlicensed airwaves in this band could lead to lots of good things—more wireless hotspots, less network congestion, greater speeds, and faster innovation.  So we are pleased to see that our vision for this spectrum is now a lot closer to reality thanks to the efforts of Congress and a broad group of stakeholders with interest in these airwaves. 

First, a little history for perspective.  Back in 1999, the 5.9 GHz band was set aside by the Commission for the automotive industry.  Since that time, efforts have been underway to use this spectrum to develop technology that can reduce car crashes and improve roadway safety.  This system, known as Dedicated Short Range Communications Service (DSRC), is designed to have cars “talk” in real time to one another and communicate with street lights, curbs, bicycles, and even pedestrians to reduce the number of auto accidents, including fatalities.     

We saw efforts to develop DSRC firsthand this summer, when we travelled together to Michigan to visit the Crash Avoidance Metrics Partnership (CAMP) and the University of Michigan Transportation Research Institute (UMTRI), which are the national hubs for this safety initiative.  While there, we test-drove new car safety prototypes, listened to concerns about possible Wi-Fi interference, and discussed spectrum sharing with both auto manufacturers and researchers.  We also got the chance to see Mcity, one testing ground for the driverless cars of the future.  It was a terrific visit, and we came away with a desire to work harder to resolve outstanding issues and improve opportunities for both auto safety and Wi-Fi in the 5.9 GHz band.

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Enacting More "Sticks": Spectrum Fees for Government Users

by Michael O'Rielly, FCC Commissioner
September 8, 2015 - 03:20 PM

Wireless service and device use is exploding and more commercial spectrum – both licensed and unlicensed – is going to be needed to meet the insatiable demand. While improvements in spectral engineering and infrastructure builds may provide some relief, spectrum is a finite resource so large swaths of spectrum now used by the U.S. government must be reallocated to the private sector to resolve upcoming shortages. And the establishment of spectrum fees for government agencies, or Agency Spectrum Fees (ASF), is one tool to make this happen.

There are many means to reduce the Federal government's spectrum allotment. Statutorily forcing agencies to relocate to other bands remains the most effective way, but this requires strong leadership, is usually a one-time event focusing on specific frequencies and can run into political storms. Others advocate for new incentives that provide agencies funding to voluntarily surrender valuable bands, but this too has drawbacks as the "carrots" needed to achieve success can exceed rationality and may only be effective in narrow circumstances. Further, it is unclear whether such incentives would change the behavior of individual agencies to use their spectrum more prudently. The benefit of ASF is that they can function as a more nuanced "stick" approach that continually generates, if operated correctly, spectrum efficiencies. More importantly, it is not an either/or situation: they can work as an individual solution or be part of a multi-layered approach.

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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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