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I’m delighted today to reintroduce a feature that should be familiar to longtime readers of the FCC’s website—the General Counsel’s Blog!  In this space, I hope to report on some of the important work that the Office is doing to support the FCC’s mission—including our critical work to promote the deployment of next-generation communications networks, reduce and eliminate unnecessary regulatory barriers, and close the digital divide.

First, a word about our Office.  We currently have over seventy attorneys and staff who support our Office’s role as chief legal advisor to the Commission.  Our experienced attorneys review and advise on pending Commission meeting items and other draft orders to ensure that they are legally sustainable.  We also have our own talented, in-house litigation team that defends our orders before the federal courts of appeals when they are challenged under our judicial review statute.  (I recently had the honor of arguing a case for the first time as General Counsel in the Restoring Internet Freedom litigation before the D.C. Circuit—a marathon featuring seven oral advocates and nearly five hours of argument!)  Our legal team does a lot of other important work as well—from reviewing transactions pending before the Commission to overseeing fraud and bankruptcy matters to advising on employment and fiscal law to working with the Department of Justice on trial court litigation to processing Freedom of Information Act requests.

Given that OGC last posted to its blog over 8 years ago, we think it is high time—and a fitting way to resurrect the General Counsel’s Blog—to begin with a post about blog posts. 

Blogging:  In the Public Interest

The Commission, like other agencies, has embraced the use of blogging.  It is easy to see why: Blogs offers major advantages in terms of technology, format, and accessibility.  We can post right away, and our posts can be as long or as short as necessary.  The tone is informal; blogs can translate the dense text of laws and regulations into the conversational tone of the internet.  Blogs allow us to quickly and informally remind, warn, explain, notify, update, comment on, review, and preview topics of interest to the public and those we regulate. 

In many ways, blog posts are simply the digital version of the informal advice that the Commission has been providing since its formation in 1934—in telephone conversations, meetings, presentations, staff letters and other correspondence.  Like those other modes of providing informal advice, blog posts are meant only to inform and explain.  While they may refer to or discuss the Commission’s official authorities, they do not themselves carry the same force of law as those authorities.  Unlike the Commission’s regulations and orders, informal advice provided in blog posts cannot serve as a sword or a shield in litigation, nor can it supersede or alter the laws it is attempting to explain. 

And that is a good thing.  As the D.C. Circuit has recognized, “informal communications between agencies and their regulated communities” are “vital to the smooth operation of both government and business.”[1]  A world in which every agency utterance was binding would be a world in which informal communication could not exist.  Agency staff, forever stuck in a defensive crouch, could communicate only by formal, binding order.  Phones would ring unanswered; the Commissioners’ Twitter feeds would cease to enlighten and entertain.

Standing between us and this dystopia is a sensible distinction:  Official agency action is binding and authoritative, while informal staff advice is not.  And while a party may rely on authoritative agency action, those that rely on informal staff advice do so at their own risk.  What follows is an explanation of that distinction, spiced with a few cautionary tales of undue reliance on informal advice.  We also explain why blog posts typically fall into the category of informal advice (hint: it has to do with the byline).

The Commission’s Informal Advice:  Helpful, But Not Authoritative

The Commission has long cautioned parties about relying on the statements or informal opinions of its staff, noting that “[a] person relying on informal advice given by Commission staff does so at their own risk.”[2]  While staff advice is helpful, it is subject to misinterpretation, to the full Commission taking a different view—and yes, to a particular staff member getting it wrong.  The FCC Record is littered with examples:

  • An attorney advises its broadcaster client not to obtain a radio station license after staff in the Commission’s International Bureau allegedly advised him that the Commission would not be initiating enforcement actions against certain unlicensed cross-border broadcasters.[3] 
  • A number of Local Exchange Carriers impose end-user common line charges on payphones, relying in part on two informal staff letters issued in response to formal complaints suggesting that the charges were appropriate under the Commission’s rules.[4]
  • Based in part on alleged conversations with “someone at the Commission” regarding the proper classification of their wireless data transmission service, two companies provide wireless data transmission service under licenses to provide Radiolocation Service (i.e., not under licenses to provide wireless data transmission service).[5]

In each case, the informal staff advice—or at least, the regulated parties’ interpretation of that advice—was ultimately incorrect.  In each case, the regulated parties raised the Commission’s informal advice as a defense to a complaint or enforcement action.  And in each case, this informal advice provided no help to the parties when the Commission took a contrary view of their legal obligations.  

Antennae Restrictions, FCC Insiders, and Videotape

No case has squarely addressed whether blog posts are binding on an agency, but there is ample authority for the proposition that informal staff advice is not binding.

The FCC frequently cites Malkan FM Assocs. v. FCC for this proposition.[6]  In that case, two unsuccessful applicants challenged the Commission’s dismissal of their radio station construction applications, which had proposed antenna heights that exceeded restrictions set by international agreement.[7]  Arguing that they should have been allowed to amend their applications, the unsuccessful applicants offered a videotape from a Commission-sponsored seminar, in which an FCC official suggested in a presentation that the applicants’ error was among those that could be corrected at a later stage in the application process.[8]  The court rejected this argument, noting that a Commission order clearly barred the applicants from amending their application.  To the extent that “an FCC insider, at an official seminar” said otherwise, the court held that “[i]n the real world of agency practice, [ ] slips of this kind are not rare and should not engender reliance.”[9] 

In a recent case, the Commission applied this reasoning to the blog post of a Commission official. In Nueva Esperanza, Inc. v. FCC,[10] unsuccessful applicants for a Low Power FM Radio Station, Nueva Esperanza, Inc. (“NEI”) argued that the successful applicants had violated a Commission rule barring pre-application collaboration.  The source of this “rule” was a blog post authored in 2012 by the then-Chief of the Commission’s Media Bureau, which offered informal advice to prospective applicants.[11]  Both the Media Bureau and the full Commission rejected this argument, noting that the blog post was “informal staff advice” and therefore not authoritative.[12]  NEI appealed to the D.C. Circuit, where the Commission repeated its position that “the blog post [was] at most informal staff advice that should not engender any reliance.”[13] 

Ultimately, the D.C. Circuit never ruled on the question whether the Commission was bound by the advice provided in the blog post, because it found that, even if it were, the post itself supported the Commission’s argument.[14] 

Beyond Bad Jokes and Contractions:  Why Blog Posts Are Informal Staff Advice

At bottom, the question whether an agency pronouncement is authoritative (and thus should engender reliance) turns less on the medium—for example, blog post, presentation, or letter—than on whether the pronouncement bears the indicia of authoritative agency action.[15]  Of course, the classic example of binding authority is a legislative rule, promulgated through notice-and-comment rulemaking.[16]  Courts have also recognized that an agency’s other pronouncements “can, as a practical matter, have a binding effect.”[17]  This could be the case, for example, where an agency pronouncement expresses a substantive change in policy, contains mandatory language, and is presented as the official view of an agency.[18] 

One usually must read no further than a blog post’s byline to see that it does not bind the Commission.  As the D.C. Circuit has held, “[a]t the very least, a definitive and binding statement on behalf of the agency must come from a source with the authority to bind the agency.”[19]  Blog posts are typically written and published by individual staff members, who do not individually have the power to bind the Commission.  That is true even of the Chairman[20] or a Bureau Chief.[21]

Several other aspects of blog posts confirm that they are at most informal staff advice:

  • They are not published in the FCC Record, the official reporter for FCC documents;
  • They do not bear any official reference number, such as the DA-xxxx number typically assigned to actions taken on delegated authority, nor do they contain any official caption or docket number[22];
  • They are generally written in an informal style, and, unlike Bureau orders, do not contain any ordering clauses;
  • They typically explain what official Commission authority requires, rather than purport to announce or impose any new or independent obligations; and
  • They are generally written by individual staffers, and the posts are not attributed to the full Commission, nor do they otherwise indicate that they represent the considered judgment of the Commission.

Blog posts may not be authoritative, but that does not mean they are not helpful.  Among other things, the Commission can use blog posts to tell the public about upcoming litigation, to remind them of deadlines, and to explain or provide advice about new rules.  But parties should rely only on the Commission’s official authorities—such as its rules and orders.  If a party wants authoritative clarification of these authorities, there are several ways to get it, including by petitioning the Commission for a declaratory ruling.[23]

****

This entire post serves as a kind of long-form disclaimer, explaining why the Commission is not bound by statements made in blog posts.  But to remove all doubt—and because “Better safe than sorry!” is the lawyer’s battle cry—I will nevertheless include the following disclaimer on my future posts:

This post represents the views of the above-named attorneys in the Office of the General Counsel and is not intended to reflect the official views of the Commission.

 

[1] Indep. Equip. Dealers Ass'n v. EPA, 372 F.3d 420, 428 (D.C. Cir. 2004).

 

[2] Applications of Mary Ann Salvatoriello (“Salvatoriello”) John Boyd (“Boyd”) Holly Hill Broad. Co. (“Holly Hill”) Suzanne M. Wilson (“Wilson”), Memorandum Opinion and Order, 6 FCC Rcd 4705 (1991).

[3] Kojo Worldwide Corp. San Diego, California, Memorandum Opinion and Order, 24 FCC Rcd 14890, 14894, 14895-96 (2009).

[4] Communications Vending Corporation of Arizona, Inc., Memorandum Opinion and Order, 17 FCC Rcd 24201, 24215, para. 34 (2002).

[5] IOU Acquisitions, Inc.; Air-Tel, LLC, Notice of Apparent Liability for Forfeiture, 2018 WL 4382895 ¶ 14 n.47 (2018).

[6] 935 F.2d 1313, 1319 (D.C. Cir. 1991)).  See, e.g., Lewis J. Paper, Esq. et al., Letter, 28 FCC Rcd 16553, 16557 n.34 (MB AD 2013) (citing Malkan); Kojo Worldwide Corp. San Diego, California, Memorandum Opinion and Order, 24 FCC Rcd 14890, 14894, 14895-96 (2009) (same); Communications Vending Corp. of Arizona, Inc. v. Citizens Communications Co., Memorandum Opinion and Order, 17 FCC Rcd 24201, 24215, para. 34 n.106 (2002) (same); Hinton Telephone Co., Memorandum Opinion and Order on Reconsideration, 10 FCC Rcd 11625, 11637, para. 42 (1995) (same).

[7] Malkan, 935 F.2d at 1319.  The height restriction was very straightforward:  an agreement between the United States and Mexico limited the heights for certain antennae close to the border to 300 feet.   The unsuccessful applications proposed antennae heights of 328 feet and 304.4 feet.  

[8] Id. at 1317. 

[9] Id. at 1320. 

[10] 863 F.3d 854 (D.C. Cir. 2017).

[11] Id. at 857.

[12] LPFM MX Group 304, Letter, Ref 1800B3-IB (MB July 16, 2015) (“Blogs are by their very nature informal writings of individuals, not formal statements of agency policy.”); LPFM MX Group 304, NAACP Social Justice Law Project, et al., Application for a Construction Permit for a New LPFM Station at Philadelphia, Pennsylvania, Memorandum Opinion and Order, 30 FCC Rcd. 13983 (2015).

[13] FCC Br. at 22. 

[14] Nueva, 863 F.3d at 860. 

[15] See Gen. Elec. Co. v. E.P.A., 290 F.3d 377, 383 (D.C. Cir. 2002) (“Our cases likewise make clear that an agency pronouncement will be considered binding as a practical matter if it either appears on its face to be binding . . . or is applied by the agency in a way that indicates it is binding[.]” (citations omitted)).

[16] See 5 U.S.C. § 553(b).

[17] Appalachian Power Co. v. EPA, 208 F.3d 1015, 1020-21 & n.11 (D.C. Cir. 2000).

[18] See, e.g., Gen. Elec., 290 F.3d at 383 (“A document will have practical binding effect before it is actually applied if the affected private parties are reasonably led to believe that failure to conform will bring adverse consequences, such as . . . denial of an application.  If the document is couched in mandatory language, or in terms indicating that it will be regularly applied, a binding intent is strongly evidenced.” (quoting Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and the Like—Should Federal Agencies Use Them to Bind the Public?, 41 Duke L.J. 1311, 1355 (1992)). 

[19] Devon Energy Corp. v. Kempthorne, 551 F.3d 1030, 1040 (D.C. Cir. 2008).

[20] See generally Petition for Declaratory Ruling Concerning Section 312(a) (7) of Communications Act, 9FCC Rcd 7638 (1994), vacated on other grounds, Becker v. FCC, 95 F.3d 75 (D.C. Cir. 1996) (referring to letter from FCC Chairman to member of Congress as an informal staff opinion, while stating that it would not be unreasonable for a licensee to follow the informal advice until the Commission provided definitive guidance).

[21] LPFM MX Group 304, Letter, Ref 1800B3-IB at p.4 n.16 (MB July 16, 2015) (“Advice of a Bureau Chief, while that of a high level staffer, remains that of a staffer.”).

[22] Although official Bureau orders, issued on delegated authority, are binding upon regulated entities, the D.C. Circuit has repeatedly held that even official Bureau orders do not bind the CommissionSee, e.g., Comcast Corp. v. FCC, 526 F.3d 763, 769 (D.C. Cir. 2008) (“[A] long line of cases in this circuit * * * unambiguously holds that an agency is not bound by unchallenged staff decisions.”); Am. Tel. & Tel. Co. v. FCC, 454 F.3d 329, 332 (D.C. Cir. 2006) (staff action does not constitute “authoritative Commission action”); Vernal Enters., Inc. v. FCC, 355 F.3d 650, 660 (D.C. Cir. 2004) (“[A]n agency is not bound by the actions of its staff if the agency has not endorsed those actions.”).

[23] See 47 C.F.R. § 1.2 (petitions for declaratory ruling).