O'Rielly Concerned About Wheeler’s Use of Delegated Authority

"I will express some concerns regarding use of delegation recently,” said O'Rielly, who was interviewed by FSF President Randolph May. “I have been troubled by the scope and breadth of authority and items that have been decided by the bureaus and the commission staff.” O'Rielly said FCC staff does a “great” job in general. “The difficulty is that I have no trouble on my side of the equation making decisions. So I'm comfortable voting on whatever the issue may be and I'll do so in a quick fashion. For me it’s not about how quickly something gets done, that’s not the issue, because I'm ready to vote.”

O'Rielly noted his long role as a Senate staffer. “I come from an institution where they voted all the time,” he said. “You had to defend your votes going forward. … So if it’s not about speed, I'm not sure what it’s about and I'm not sure why some of those items couldn’t come up to the commission level.”

Clyburn, who was acting chairwoman last year, said the use of delegated authority on some orders can speed FCC decisions, also in response to a question from May. “Many of you in the audience have recommended to us on a number of occasions that we need to move things quickly, that you want expedited decisionmaking. This type of decisionmaking is more expedited.”

Clyburn said she’s “not overly concerned” about Wheeler’s use of delegated authority to date. “When we talk about delegated authority I want to emphasize one thing, we do not interact in a vacuum,” she said. “No matter how things are delegated, where things lie in terms of final decisionmaking, exchanges happen. Interaction happens.” All chairmen have clear authority to use delegated authority, Clyburn said. “These are not, you know, black or white issues,” she said. “I think from a regulatory standpoint the chair, and commissioners, deserve some flexibility, some dexterity."

O'Rielly railed against the current agency and court interpretation of Section 706 of the Communications Act (see related story in this issue). As part of the law, Congress inserted a “miscellaneous,” “seemingly innocuous provision” to encourage broadband deployment. Section 706(a), found in Verizon v. FCC to be an independent grant of authority over broadband regulation, was meant as “congressional findings,” O'Rielly said, telling the FCC and the states in “oratory language” that broadband deployment is a “good thing.” Section (b) was what really triggered agency action, and only if broadband buildout was found lacking, he said.

"I'm not aware of anybody suggesting” that Section 706 should grant the agency the power it currently claims, O'Rielly said. “There was no intention to provide the FCC extra regulatory authority,” he said. “Even the FCC did not believe that it had this authority until it ran out of other options” -- when in 2010 the U.S. Court of Appeals for the D.C. Circuit rejected the FCC’s authority to promulgate net neutrality rules.

FCC use of Section 706 is “incredibly troubling,” O'Rielly said. Observers would need to have “wild assumptions” to believe that the Republican Congress with a “deregulatory mandate” inserted “very vague language” into the statute to give the FCC broad power over the Internet but then “didn’t tell a soul,” or that the congressional committees “provided a secret loophole to the commission to regulate.” It’s incredulous to believe that while Congress was having extensive debates over how much authority to give the commission, “at the same time they had already given” the FCC that authority. “Congress did not provide the authority to the commission as it so seems to believe,” O'Rielly said.

As a former Senate staffer, O'Rielly said he has learned three things about the relationship between the agency and Congress. First, the FCC is a creation of Congress and its job is to implement the statute. “That will be at the front of my thinking.” That means meeting statutory deadlines and “not overstepping our authority.” Second, O'Rielly said he learned of the importance of humility. It’s not his job to tell Congress what to do, he said; “I will do what they tell me to do.” Third, it’s important to maintain communication between agency and congressional staff so he can “keep current with congressional intent,” he said. Communications policy is “generally not partisan,” he said. O'Rielly said he expects the Satellite Television Extension and Localism Act reauthorization to move forward regardless of what fights are going on in Congress.

As the FCC moves forward on its IP transition pilots, industry should bear in mind that regulation is not always a bad thing, Clyburn said during a speech that opened the conference.

"Let me note, that cable’s entry would not have occurred but for regulation,” Clyburn said. “Cable providers needed access to the utility poles to deploy networks. … The Pole Attachments Act of 1978 made this possible and with technological advancements, today cable providers offer robust broadband throughout their footprints as well as video and voice. While I understand the instinct for many is to push for a deregulatory framework, there are potential dangers and consequences in a regulatory-free zone."

FCC moves led to Wi-Fi and unlicensed spectrum, which is now critical, Clyburn said. “This has spurred one of our nation’s greatest innovation engines. It has given us technologies such as baby monitors, cordless phones, Bluetooth, radio frequency identification and Wi-Fi. Some of these technologies have led to the development of billion-dollar industries.”