Calls for regulatory presumption market is competitive

The FCC's procedures for conducting business are less formalized than "a middle school PTA?" and comprise a "piddly little" three-ring binder of working procedures, most of which aren't in there anyway.

That is according to FCC Commissioner Michael O'Rielly, who was taking aim at FCC processes in a speech to the Free State Foundation Thursday (June 28). He also said Administrative Law Judge proceedings were a "waste of time and resources" and should be scrapped and suggested the FCC should presume the communications marketplace is competitive and make those who disagree prove their point.

FCC's O'Rielly: Regulator, Spare That Tree!

O'Rielly said much process reform progress has been made under FCC chairman Ajit Pai, including adopting O'Rielly's idea of publishing drafts of FCC public meeting items three weeks before they are scheduled for a vote. "I have also seen comments from all Commissioner offices — Republican and Democrats—in favor of the practice," he said, according to a text of his speech. "Not bad for an idea from someone who hadn’t worked at the Commission before."

He also praised chairman Pai's creation of a the Office of Economics and Analytics, which he said was responsive to his concerns about the need for better cost-benefit analysis of regulations.

But the commissioner signaled much more needs fixing, including codifying commission procedures.

"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. There is no extensive handbook or manual that can be referenced if procedural questions arise."

O'Rielly said that needs to change. He said staff should be directed to create a procedures document and then it should be incorporated into the Code of Federal Regulations for the public to see. He noted that the FCC is bound by the Administrative Procedure Act, which requires that FCC decisionmaking not be arbitrary and capricious.

He also advocated for setting clear timelines for FCC actions, including making the 180-day merger shot clock real, not aspirational.

O'Rielly put in a plug for eliminating the Administrative Law Judge position, whose decisions in adjudicatory proceedings must still be voted by the commission to become official, or be rejected as the case might be.

"To the extent that fact-finding missions are needed, paper hearings can be conducted to obtain the requisite information," he said. O'Rielly named no names, but suggested the ALJ process could be used by "devious chairmen" to "unilaterally use the threat of the ALJ [the dreaded "designated for hearing" phrase] to kill proposed mergers."

The deregulatory O'Rielly suggested the FCC presume that the communications marketplace is competitive, and require those who disagree to prove that it is not.

On the enforcement end, the commissioner said the FCC needed to make sure its forfeitures get collected, and perhaps increase base fines.