O'Rielly, Pai Present Laundry List of FCC Criticisms to FCBA

Bemoaning a lack of openness and transparency and repeating recent criticisms about merger oversight, the FCC's two Republican commissioners -- Mike O'Rielly and Ajit Pai -- presented a litany of complaints about the agency on a panel at the FCBA annual seminar Friday. "I look forward to the next" chairman, O'Rielly said.

Pai said he would like to see structural change, including making public the proposals and draft orders before the commissioners vote, and a more "consensus-based model of decision making," where commissioners get to weigh in even if their views ultimately are rejected. Transparency issues -- with some parties involved in a proceeding knowing some pieces of what the FCC is considering, while others may know nothing -- has always been an issue, but it's worse now, O'Rielly said. Pai also said commissioners are often largely gagged on what they can say: "My press releases get micromanaged by certain FCC staff."

The two also said commissioners should have the ability to pull items that have been delegated to bureaus. "All I'm asking for is a vote," O'Rielly said, saying an item would actually be improved then as it would carry the FCC stamp of approval. The FCC didn't comment.

They also were critical of the executive branch's weighing in on policy outside of NTIA comments, such as the Obama administration's backing of the FCC's set-top box NPRM (see 1604150003). "I cherish ... the fact we are independent," Pai said. He also said it puts the chairman in the position of either having to accede to or cross the president's preferences: "It raises the stakes significantly." O'Rielly said, "It's not my role to criticize the president of the United States," but the chief executive's weighing in on telco policy issues "puts the independence of the agency in question."

Groups of lawmakers expressing an opinion, by contrast, isn't as problematic because the FCC is a creation of Congress and the agency should be interested in congressional takes on statutory construction, O'Rielly said. The weight of Congress also is diluted by the fact "you have so many of them," he said.

When asked later about the commissioners' branch critique, NTIA head Larry Strickling said NTIA represents the administration when it files comments, but that shouldn't prevent others in the executive branch from speaking out in other ways and that there's no value to "a gag rule." Strickling said NTIA hasn't commented in as many FCC proceedings as it did years earlier due to putting more of its staff resources into Internet issues outside the FCC's purview.

Asked about an increasingly politicized Washington, O'Rielly said his complaints about FCC policies and practices are due not to politicization but an approach the commission has taken. Pai said communications policy has been historically immune from politicization. "You used to see [bipartisan agreement on telco legislation] all the time," he said.

The next chairman should embrace licensed spectrum, the two said. Pai also said there should be streamlining of challenges to regulation like pole attachment rules that could hinder broadband deployment. He said the next chairman should embrace the IP transition so copper wiring "can fade into the background." O'Rielly said he backed using FCC pre-emption authority to push states and localities on matters like small-cell site placement in the name of spurring broadband deployment. They also criticized the agency's merger review process, echoing what they said about the FCC's approval of Charter Communications' buying Time Warner Cable and Bright House Networks (see 1605100050).

Pai said the items on his wish list for this year include progress on 5 GHz, more work on broadband deployment and more efforts at stopping contraband cellphones in prisons (see 1604060058). He also said he would like to see Congress address the Kelsey Smith Act (HR-4889). O'Rielly said he is interested in progress on the 5.9 GHz band and small cell rules.