FCC's O'Rielly Takes Aim At FCC Enforcement Procedures
June 15, 2015 at 4:03 AM (PT)
In a recent speech to the FEDERAL COMMUNICATIONS BAR ASSOCIATION, FCC Commissioner MIKE O'RIELLY took aim at problems with FCC enforcement procedures, warning that "the Commission’s overall approach to enforcement has gone astray over the last many months... it has entered a territory that can only be described as dangerously misguided," valuing big penalties over compliance with the law and policymaking over merely enforcement of present rules.
O'RIELLY said that the Enforcement Bureau has placed its core functions secondary to "obtaining newspaper headlines trumpeting accusations and eye-popping fines. In other words, self-aggrandizing fanfare is a major objective and often appears to be more important than case foundation, correcting the violation or establishing a reasonable deterrent. I like to refer to this as sizzle over substance.... The line of thinking is rooted in the belief that appearing to be doing something is more important than actually performing the duties of the office." He added that parties subject to enforcement actions found that when they went to the bureau to try and resolve the matters, "each was told that any potential settlement would generate a penalty in the multiple-hundreds of millions or billions and require an admission of guilt. To make the situation more outrageous, the Bureau indicated that there was little room to negotiate; it was a take it or leave it offer rather than the beginning of a process to come to a settlement position. Suffice it to say, no agreements were reached in these circumstances."
He also charged that the bureau calls every violation "egregious" and increases the penalties by as much as 400%. "(T)he Commission’s enforcement effort, as mentioned in a number of comments by Commission leadership, seems mostly to be valued in terms of the total amount that can be extracted from fines and penalties. In other words, under this approach, if the dollar value of fines and penalties exceeds that from previous years, then it proves that enforcement is effective. Such thinking is not only backward, it is harmful. The true measurement of success should be whether our regulatees are complying with the law and the Commission’s rules. To equate financial penalties with success is like measuring the safety of a major city by the number of people arrested in a given year."
"The Bureau has also been bestowed, by certain actions of the Commission majority and against my wishes, with immeasurable and unconstrained delegated authority over areas once governed by thoughtful policymakers, not ex post facto law enforcement activity," O'RIELLY added. "The combination of the Bureau’s wayward approach with vast new powers should be of concern to everyone, even left-leaning activists." He used the FCC's Net Neutrality decision and its privacy provisions being enforced against Broadband Internet Access Service despite the rules not being designed for that and a separate rulemaking still pending as an example of the majority investing policymaking powers in the Enforcement Bureau.