O'Rielly Says He's Closing In on Recommendations on Future of CBRS Band

FCC Commissioner Mike O’Rielly said he's nearing a recommendation on the 3.5 GHz citizens broadband radio service band, speaking Thursday to reporters after a speech at the Free State Foundation on process changes. The 180-day shot clock on deal approval “should be more than aspirational,” O’Rielly said, with several takeovers still pending before the regulator. “We can make decisions with a set time frame.”

Chairman Ajit Pai appointed O’Rielly to oversee a rewrite of the CBRS rules, a process that has played out over more than a year (see 1805240058). “I’m working hard to try and find something in terms of the biggest issue, which is the geographic license size, trying to find as much accommodation as I can among pretty polar opposite positions,” O’Rielly told us. “We’re getting to a point where there are only so many more conversations that are going to be valuable.”

Negotiations are important, O’Rielly said. “You kind of have to have them,” he said. “We continue to talk to all interested parties and find the best outcome that we can.”

O’Rielly said he doesn’t know David Lawrence, named by Pai this week (see 1806270068) to lead a task force reviewing T-Mobile/Sprint. “I don’t have a great deal of background to know how the decision was made or what the implications might be,” O’Rielly said of Lawrence. “I look forward to getting to know him more.” O'Rielly is ready to vote on Sinclair/Tribune. “I’m not waiting,” he said. “I’m willing to act when asked. … We’re not there yet. I don’t have anything on my desk to consider.”

O’Rielly again urged getting rid of administrative law judges at the FCC (see 1806220011), tying that to merger reviews. Referral to an ALJ “is a backhanded way to kill a merger” that shouldn't be allowed under the Communications Act, he said. He noted that when then-Chairman Tom Wheeler opposed Comcast/Time Warner Cable, Wheeler threatened to kill it by referring it to an ALJ. “This is a serious push from me,” said O'Rielly. The FCC has had to overturn a number of ALJ decisions, he said. “That begs the question, why are we going through an ALJ process that takes a decade then comes back to us to have to undo?”

“The FCC should provide more guidance on the Telephone Consumer Protection Act," O’Rielly said. After the U.S. Court of Appeals for the D.C. Circuit overturned key parts of a 2015 order and declaratory ruling (see 1803160053), some think “all things are hunky-dory” on TCPA, he said. “That’s not actually true.” The companies subject to enforcement action under the 2015 rules are still being sued, he said. “Legitimate companies are still being attacked by perpetual litigators,” he said. “There is a need for clarity.”

Despite broad concerns, posting items in advance of meetings has worked, O’Rielly said (speech). “The response from many was that it would bring the FCC’s work to a halt, commissioners would be hesitant to negotiate and some sort of regulatory chaos would ensue,” he said. “None of this has come to pass. Instead, the commission’s process has become far more efficient.” O’Rielly said he's taking fewer meetings but he also spends much less time having to explain items, since people show up much better informed. Draft items show up at his office in a more polished state so most changes come from the commissioner offices rather than as staff edits after a vote.

Revisions to process doesn’t usually generate headlines, but it's significant, O’Rielly said. “For the agency to accomplish the big-ticket items, it must have a process that is efficient and one that is respected internally and externally,” he said. The biggest change needed now is for FCC processes to be codified, O’Rielly said. “Most of you would probably be shocked to learn that few of our internal workings are written down anywhere,” he said. “They are merely passed down through the years under the guise of ‘how we’ve always done it.’ How does one disagree with a current practice when the practice doesn’t technically exist?”

FTC

The FTC has things to learn, which is why the agency is holding hearings in September to scrutinize ISPs and internet "platforms" as part of a broader agenda to update consumer protection and antitrust enforcement (see 1806200057), said General Counsel Alden Abbott.

“We have not had a perfect litigation record in the area,” Abbott said. “There was a recent case in which we did not have a good result,” he said, referring to the LabMD court ruling the FTC can't require a company to completely overhaul its data security program but can ban specific acts or practices (see 1712070068). “We want to hear concerns that consumer groups, business groups and others have.”

Abbott was asked by FSF President Randy May about differences between the FTC and the FCC. “We have very different institutional histories,” he said. The FCC has very specific mandates under the Communications Act in such areas as rules for cable and for protecting spectrum from interference, Abbott said. “The FTC has been a generalist agency, just like the antitrust laws are very general statements,” he said. “We are not a heavier promulgator of regulations … we’re more a law enforcer using sort of common law development.” The FTC is also a research organization with some 75 Ph.D. economists on staff, he said.

The trade commission “really isn’t a regulator,” Abbott told us. “It’s much more [focused on] law enforcement.” The FTC has more expertise on antitrust because it has been reviewing merger issues for decades, he said. The FCC has always had lots of engineers and network management on staff, he said: “Now, the FTC is trying to get more up to speed on technology, get some technologists.”

Muni Broadband

During a panel discussion, FSF Senior Fellow Theodore Bolema said a big problem with municipal broadband systems is they can scare off private competitors. Some big cities are considering going into competition with broadband providers, Bolema said. That can reduce rather than increase the number of competitors, he said. “We’ve found plenty of examples of local governments that are favoring the government systems … over private providers,” he said. “They tend to have not very good financial records” (see 1806250012).

Two things driving the move to muni broadband are concern about net neutrality and privacy, Bolema said. “What’s wrong with that?” he asked. “This is kind of uncharted territory” with big cities becoming competitors, he said.

Chris Lewis, vice president of Public Knowledge, said he lives in Alexandria, Virginia, which is starting to offer city broadband. It’s “a good thing” when local governments make decisions about how to invest tax dollars, Lewis said. “There have been projects that have not been successful, but there are many that have been,” he said. “When localities engage in municipal broadband carefully and invest wisely, it can be done well.” Lewis said everyone should “keep calm” and let cities make their choices.