Skip Navigation

Federal Communications Commission

English Display Options

Blog Posts by Michael O'Rielly

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.        

Read more »

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. 

Read more »

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.

Read more »

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

Read more »

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.

Read more »

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.    

Read more »

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.

Read more »

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? 

Read more »

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.

Read more »

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. 


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. 

Read more »

You are leaving the FCC website

You are about to leave the FCC website and visit a third-party, non-governmental website that the FCC does not maintain or control. The FCC does not endorse any product or service, and is not responsible for, nor can it guarantee the validity or timeliness of the content on the page you are about to visit. Additionally, the privacy policies of this third-party page may differ from those of the FCC.