For Commission rules and procedures to be truly effective, everyone needs to know with a certain level of confidence what will happen if applicable deadlines are missed. Not only does this not exist today, but the Commission’s inconsistency with how it responds to late filings borders on arbitrary and capricious. To rectify, I suggest it is time to establish a universally-applied policy that, from now on, everyone is expected to either comply with all applicable deadlines or face the consequences. Let’s remove the ambiguity and wide disparity of approaches once and for all.
Depending on the particular issue and the specific bureau, a provider or individual subject to Commission rules can see vast differences in how the deadlines are treated and enforced. The simple fact is that some bureaus are far more forgiving about timeliness than others. This makes little sense and unfairly penalizes those industry sectors that do not receive such benevolence. Certain bureaus have dismissed a petition for reconsideration filed one day late, are more than willing to cancel Commission-issued licenses that are not in compliance, and exclude auction participants that miss a deadline at the drop of a hat. For instance, in the auction context, an applicant whose down payment was a day late was disqualified from acquiring auction licenses and assessed a default payment. And, a licensee whose renewal application was three days late lost two wireless public safety licenses.
On the other hand, some bureaus seem to go out of their way to make late filings seem as our mistake and work with applicants to rectify their omission, making them completely whole. Take for instance, WAJM, an FM station in New Jersey, where the Commission renewed the authorization, even though the licensee failed to file the required paperwork until four years after the conclusion of its term. The item states, “the Commission consistently has allowed broadcast station licenses to be renewed even though the license renewal application was filed after the license term expired. Adopting a contrary position in this case, without any prior notice to the Board, would violate the Board’s due process rights.” Given the circumstances, I supported the item’s outcome, but why was it allowed to come to this? Similarly, the Wireline Competition Bureau’s recent policy change permits USF high-cost recipients to miss interim buildout deadlines, cure at a later date but still receive 100 percent of any withheld funds, and missing a final milestone and failing to cure within 12 months results in a penalty of only ten percent of the high-cost support. This should strike everyone as too forgiving for missing their commitments to the Commission and, more importantly, to consumers. Moreover, consider the fact that failure to timely file information with the Commission, including certifications, now results in a small base penalty and a pro rata reduction in the associated high-cost support.
This doesn’t mean to suggest that special circumstances do not exist, from time to time, to justify missing a deadline. Things happen in the real world, outside the control of the affected party, which may prevent complying with specific requirements by a set date. That’s why the Commission’s rules include waiver authority. Exercising thoughtful and judicial waiver authority, however, is a far cry from having multiple and competing standards, practices or understandings about what happens when a deadline is missed. In fact, the lax deadline approach means that, in some circumstances, there is no need to get to the waiver stage, since missing a deadline is ultimately acceptable in one form or another.
Let me be clear that I am not blaming any particular bureau or staff for the current state of affairs. That’s a bit like debating how the boat sank when you’re surrounded by sharks. Instead, let’s focus on correcting the situation going forward. This means showing leadership on the Eighth Floor; we have an overarching view of the Commission’s deadlines and how they are being enforced. So, if we take that knowledge and compose a firm policy on deadlines, it would improve Commission functionality, bring clarity to regulated entities and help stabilize our overall enforcement mechanisms.
Enforcement Amnesty Window
The past Commission’s approach to enforcement matters – one generally based on optics and achieving headlines– discouraged regulated entities from self-reporting any instances where they may be out of compliance. And who can blame them? Too many times that particular Commission used information reported by companies – those trying to do the right thing – against them. When enforcement turns into a game of gotcha, there really isn't much desire by parties to voluntarily poke their heads up.
Beyond reestablishing a sound enforcement approach, I suggest it’s time to consider creating a short, defined window for companies to report instances in which they are not in compliance with Commission rules. Call it an Enforcement Amnesty Window in order to get everyone back within bounds of our rules. Such an amnesty period would be short and shouldn’t apply to intentional non-compliance or those violations that resulted in direct harm to consumers. What I envision as being eligible for relief are the same type of licensing and deadline errors as discussed above and other minor licensing matters that can be easily rectified.
Such an approach is not without precedent. In 2003, the Commission held a 60-day amnesty window for unregistered antenna structures. In that instance, the Commission determined after an audit that 442 communications towers sites were not in compliance with our antenna structure registration requirements. Applicants had a chance to fix their information on file or face future enforcement actions.
* * *
As it stands now, the Commission is unintentionally favoring some parties over others through its disparate treatment of its deadlines. Moreover, combining a short amnesty window to rectify current instances where licensees may not be in compliance with the implementation of firm deadlines, going forward, would help restore administrative certainty, transparency, parity, and confidence in our enforcement process.
 In fact, the Commission has a policy for wireless services that permits some leniency if an application to renew a license with an accompanying waiver is 30 days late, but expressly states that anything filed beyond that will be subject to a stricter review and will not be routinely granted. Regardless of when the corrective application is filed, a licensee could be subject to enforcement action.