O'Rielly Dissents More Than Carr but Hardly a Thorn in Pai's Side

FCC Republicans Ajit Pai, Mike O’Rielly and Brendan Carr have voted together the vast majority of the time. Carr partially dissented once and has been mostly in step with Pai since he became a member a year ago. O’Rielly, a commissioner throughout Pai's chairmanship, has disagreed more, based on our review. O’Rielly has had partial dissents 12 times and a full dissent once.

Carr has said many times in his meeting statements that he voted yes only after changes that he sought were made. For the most part, agency records show Pai has been able to count on support from his fellow Republicans on nearly all items. The agency didn't comment.

Seventy-eight percent of votes under Pai have been unanimous. Former Commissioner Mignon Clyburn dissented 30 times under Pai and had nine partial dissents. Commissioner Jessica Rosenworcel has dissented 20 times, with another 13 partial dissents.

Commissioners in a chairman’s party don’t dissent much, at least in the first year of a chairmanship, records show. Rosenworcel had no dissents or partial dissents on meeting items the first year of the Julius Genachowski and Tom Wheeler chairmanships and Clyburn also had no dissents or partial dissents her first year under Genachowski and one partial dissent the first year of the Wheeler chairmanship.

O’Rielly has voted with the other Republicans on all the big issues under Pai, joining GOP majority votes undoing some net neutrality regulation, streamlining infrastructure rules and preparing for 5G, largely deregulating large telco business data services (BDS) and changing the rules for the USF program. Sometimes O’Rielly said he would have gone further in deregulating and positioned himself to the political right of Pai.

GOP Dissents

The lone full dissent from O’Rielly was on a July 2017 $2.9 million fine against Dialing Services (see 1707260016) for allegedly making robocalls to wireless phones using artificial or prerecorded voice messages without the prior express consent of the called parties. O'Rielly questioned whether the FCC is punishing “a technology and its operator" rather than the actual originator of illegal robocalls. “After months of working on this case and hoping to reach common ground, we reached a point where additional edits and input weren’t getting us closer on a couple of key issues,” O’Rielly said then.

Carr and O’Rielly both partially dissented on updates to rules for hearing aid compatibility and volume control on wireline and wireless phones, approved in October. Both Republicans questioned why the FCC needed to adopt a requirement that within three years all hearing-aid compatible wireless handsets include volume controls. The two objected only to the new wireless volume-control standard (see 1710240062).

Many of O’Rielly’s partial dissents were on enforcement items. In May, O’Rielly joined other commissioners in supporting a $120 million fine against telemarketer Adrian Abramovich for "malicious spoofing" but said the agency shouldn’t have relied on “circumstantial intent to harm theory" to make its case (see 1805100008). On other enforcement actions, O’Rielly partially dissented but didn’t issue a statement explaining his concerns.

O’Rielly partially dissented on the first commission item issued under Pai, Jan. 26, 2017, to repurpose $170 million of Connect America Fund Phase II auction funds to New York state’s own broadband reverse auction. O’Rielly said he was concerned the funding wouldn’t be used efficiently and cited New York as a state that diverts 911 fees to unrelated purposes. He also partially dissented from a March 2, 2017, order setting a broad range of bid weights for the CAF II auction, which he suggested favored “the highest speed tiers at the expense of more people getting broadband.” In July, O’Rielly partially dissented from an order on emergency alert system testing and false alerts, over concerns about alert fatigue (see 1807120059).

Leverage for Changes

In some cases, where his vote was needed for a majority, O’Rielly used his leverage to obtain changes to drafts, such as on CAF items.

O'Rielly secured broadband deployment and competition conditions that limited the effect of an April 5 order increasing subsidy support for tribal operating costs, leading to a rare partial concurrence from Pai, who said he would have extended the relief to more tribes. The commission also obtained revisions to a March 23 order/NPRM providing broader additional CAF support for rural telcos, including to explore possible “means testing”; to a May 29 order/NPRM providing additional CAF support to hurricane-hit Puerto Rico and the U.S. Virgin Islands, including auction-oriented proposals; to an Aug. 3 order on one-touch, make-ready pole attachments, to “smooth some rougher parts”; and to a July 18 order streamlining Enforcement Bureau complaint process, to “maintain transparency and efficiency provisions pertaining to pole attachments,” among others.

Current and former FCC officials said counting dissents doesn’t capture the negotiations between the chairman’s office and commissioners before an order gets voted. “There is no rubber stamping here,” said an aide to O’Rielly. “I can’t think of a time when the commissioner had no edits.”

O’Rielly also has publicly disagreed with the chairman’s office while voting with Pai on several occasions. On the recent hearing designation order against Sinclair, he was the last to vote. He complained in his statement that he was “less than sanguine that this effort will be of extended value,” even though the HDO incorporated edits he suggested. He has said repeatedly the commission doesn’t have the authority to alter the national TV-station ownership cap, and despite that belief, to see the matter “litigated out,” he will vote in favor of polices that make such alterations.

Pai so far has deferred to O’Rielly as chairman of the federal-state joint boards on USF and jurisdictional separations. At O’Rielly’s recommendation and over state regulator objections, an NPRM proposed to extend by 15 years a freeze on separations rules apportioning rate-of-return telco regulated costs and revenue between interstate and intrastate jurisdictions. He also resisted state member proposals for overhauling USF contributions, saying they won’t target broadband while he’s joint board chair.

O’Rielly frequently called for imposing an overall budget on USF mechanisms, but so far the FCC hasn’t moved in that direction. In April, O’Rielly said he and Pai were close to moving an order to revise the structure for Team Telecom (DOJ, DOD and Department of Homeland Security) executive branch agency participation in FCC reviews of foreign takeovers of U.S. communications companies and assets. It has yet to emerge.

Editor's note: This is Part I of a two-part series on votes at the FCC under Chairman Pai. Part II will focus more on the cohesiveness of Republicans at the agency under him.