FCC Shouldn't Regulate by Citation As It Did Against Lyft, Says O'Rielly

The FCC should change procedures so citations aren't publicized until after the target has been interviewed by officials and given a chance to respond to the violations, said Commissioner Mike O’Rielly in a blog post Tuesday. “I am concerned that citations are being used as another tool to expand the FCC’s reach and thus its mission -- a maneuver that amounts to regulation by citation.” Since citations are often issued against companies that aren't usual FCC regulatees and therefore not as familiar with FCC rules, the commission shouldn't “break new legal ground” in them, as was done in recent citations against First National Bank and Lyft (see 1509110060), O’Rielly said. “When a new legal argument is put forth in a citation, it is even less likely that a non-regulatee would be able to foresee that its conduct would violate the Act.” Companies without regular FCC counsel may not realize that such a citation isn't part of settled law, and are therefore less likely to challenge questionable ones, O’Rielly said. If such citations go unchallenged, they end up being precedent for future citations, he said: “Hence, the reality of regulation by citation.” The FCC should instead address conduct it believes should be unlawful though rulemakings, O’Rielly said. “A simple rule change can be effectuated in a reasonable amount of time while providing fair notice and an opportunity to comment.” The agency had no immediate comment.