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Blog Posts by Michael O'Rielly

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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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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Driving Wi-Fi Ahead: the Upper 5 GHz Band

February 23, 2015 - 05:02 PM

Today’s Wi-Fi spectrum bands are wildly popular.  But with more and more people and devices taking advantage of this technology, these bands are getting congested.  It reminds us of the famous Yogi Berra quote, “Nobody goes there anymore; it’s too crowded.” 

In response to the growing use of Wi-Fi, the Federal Communications Commission has taken steps to meet the growing demand for additional unlicensed spectrum.  Last year, we added 100 megahertz of spectrum for Wi-Fi in the lower 5 GHz band.  The Commission is also seeking to secure some unlicensed spectrum opportunities in the 600 MHz band as part of our upcoming incentive auction.  But more needs to be done—and soon.

One spectrum band that we believe needs greater attention is in the upper 5 GHz band.  In light of the proximity to spectrum in other parts of the 5 GHz band that are already used for unlicensed services, this is a prime candidate to help meet the demand for Wi-Fi.  Unlicensed services generally share spectrum with other radio services on a non-interference basis.  So one of the bands identified for potential new sharing is the 75 megahertz of spectrum located at 5850 to 5925 MHz (also known as the U-NII-4 band) that was allocated by the Commission in 1999 for Dedicated Short Range Communications Service (DSRC) systems intended to improve roadway safety. 

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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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