O'Rielly Says Enforcement Bureau Too Often 'Sizzle Over Substance'
The FCC Enforcement Bureau cares more about penalties and publicity than its core mission of enforcing the rules, Commissioner Mike O'Rielly said Thursday in a keynote at the FCBA annual meeting that was pointedly critical of the FCC's approach to enforcement. "It's entered territory that can only could be called misguided," O'Rielly said. "The Commission seems more intent on obtaining newspaper headlines trumpeting accusations and eye-popping fines. Self-aggrandizing fanfare is a major objective. Sizzle over substance." The remarks were later posted online.
O'Rielly's criticisms come as many familiar with the bureau have said that under Chief Travis LeBlanc, the FCC's enforcement arm has become far more aggressive pursuing companies that violate FCC rules (see 1409090031). One year ago this month, the FCC levied its largest ever fine, of $34.9 million, against an online retailer selling illegal signal jammers. O'Rielly said that when he talks with company executives dealing with the Enforcement Bureau, they often indicate the bureau isn't interested in negotiating mutually agreeable settlements, and that "settling for unfair terms" is preferable to the alternative -- bad publicity and years of prosecution. Meanwhile, the penalties being levied by the bureau often aren't based on the violation itself, "but instead seem to be picked out of a hat," he said. The agency declined to comment Thursday.
"That's one of the main focuses -- how much money can we extract to show we are very successful," O'Rielly said following his speech. "That's the wrong measurement. The measurement should be, are people complying with our rules. In a given year, if nobody does anything wrong and we collect no dollars, that's a good outcome. They seem to have the opposite perspective, which is we need to get as much money as we possibly can. They've actually suggested, we're only going to go after the big-time players. We spend little time on things that are so important, like pirate radio." Pirate radio is a perennial broadcast concern, and FCC Chairman Tom Wheeler's plans to close many bureau field offices have elevated those fears (see 1506090059).
Broadband companies have been left in the dark about rules on net neutrality, said O'Rielly. Enforcement of Section 222 of the Communications Act is an example, as the bureau plans to go after violators of customer information privacy rules and determine whether broadband providers are "reasonable" in their compliance with 222 before the other bureaus have had a chance to weigh in on what the rules actually mean, O'Rielly said. "I have deep concerns about the Enforcement Bureau taking the lead on privacy before [other] bureaus have had a chance to consider the subject and seek comment from stakeholders and the public," he said. "It's like asking TSA agents to set immigration policy," he said. "This is not an idle concern," O'Rielly said, pointing to a 2014 notice of apparent liability against TerraCom and YourTel regarding data security issues (see 1410240055) "despite the fact that [the commission] had never issued a single order, rule, or guidance" -- illustrating the problem of companies operating while not knowing the rules, thus increasing the likelihood of running afoul of them. With numerous aspects of the February net neutrality order still to be hammered out, such as better defining its general conduct rule, "I'll let you guess who gets the first crack at answering these questions," O'Rielly said.
House Republicans this week introduced a budget bill that would cut the FCC budget and ban the regulator from implementing or enforcing the net neutrality order until the first date of the final disposition of Alamo Broadband v. FCC, USTelecom v. FCC and CenturyLink v. FCC, which are challenging the order (see 1506100050). The House bill "seems consistent ... with what I've been talking about," O'Rielly said.
Asked about the origins of the Enforcement Bureau approach, the commissioner said, "I can't answer that. I'm not in the majority or the chairman to know how they've changed the structure. I can't ascribe any particular motives."