Pai Slams FCC Enforcement Bureau for Pursuing Press, not Violators, Seeks Changes
Commissioner Ajit Pai blasted FCC enforcement for what it's doing and for what it's not doing. Pai said the Enforcement Bureau is pursuing big “headline-grabbing fines regardless of the law,” has the wrong priorities and is no longer accountable even to commissioners. He said the result has been fewer enforcement actions and those that are taken at the commission level have become more partisan. “Things have gone seriously awry,” he said in a speech at the Practising Law Institute conference Thursday.
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Pai said it wouldn't be hard to fix the problem if the FCC renewed a commitment to a bipartisan enforcement process, and he welcomed congressional oversight. He proposed the FCC apply the same monetary thresholds for commission-level action to consent decrees that it does to proposed fines and orders; set a one-year deadline for acting on proposed fines; and act to increase transparency both for commissioners and the public. An FCC spokesman didn't comment. A recent blog entry by Enforcement Bureau Chief Travis LeBlanc touted the agency's increased success in collecting fines. Pai said he was "perplexed" by that entry and disputed LeBlanc's claimed 88 percent success rate in 2015.
Pai said there's a simple reason there's so much FCC discord on enforcement matters. “Instead of maintaining the sober, 'just the facts, ma’am' enforcement approach embodied by Dragnet’s Joe Friday, our main goal now seems to be keeping up with the Kardashians when it comes to press coverage,” he said. He criticized the FCC's proposed $100 million fine on AT&T Mobility for allegedly not disclosing that the broadband speeds of callers on unlimited data plays could be temporarily reduced, when, he said, it made disclosures in various ways. “And AT&T started the program after the FCC had explicitly approved similar programs on at least three separate occasions as innovative ways to manage network congestion. But these facts and precedents didn’t matter -- all because they got in the way of a $100 million headline,” he said. Pai also took issue with bureau enforcement efforts targeting TerraCom and M.C. Dean.
The FCC's current enforcement process “sets the wrong priorities and is less productive than it used to be,” Pai said. He said some had tried to frame his previous criticisms as reflecting opposition to strong enforcement, but he disputed that. “Let me be clear,” he said. “I want effective and firm enforcement. If we don’t enforce our rules, they become little more than dead letters on a printed page. So when there is a clear violation of our regulations, we should impose a penalty.”
Pai said the FCC in 2007, the seventh year under Republican control, issued 195 notices of apparent liability and forfeiture orders, while in 2015, the seventh year of Democratic control, it has issued only 66. “These statistics indict, not acquit, the FCC’s current enforcement process,” he said. Pai said the FCC hasn't done much to respond to 118,000 telemarketing complaints, issuing no NALs and just one fine this year. “Instead of going after companies for conduct that Americans actually complain about and that could actually violate our rules, we’re chasing press,” he said.
Pai said it's “astonishing” the Enforcement Bureau has been unresponsive to his repeated requests since June for a list of its open investigations. When he raised the issue at a congressional hearing, it was suggested he didn't have the right to such access on law enforcement matters, but he said that argument “doesn't hold water.” He said the bureau “is not an independent agency within an independent agency. And if the suggestion is that information about investigations is too sensitive for FCC commissioners to know, I’d point out that commissioners have top-secret security clearances. In short, there’s no excuse for agency leadership not to make this information available.”
Pai criticized bureau actions that modify or set penalties through consent decrees settling charges. He noted the bureau needs commission approval for fines above $100,000 for common carriers and above $25,000 for others, but the requirement doesn't apply to consent decrees, allowing the bureau to come up with its own settlements. “This practice is highly problematic,” he said. “If conduct is serious enough to warrant a large monetary penalty, then it should be commissioners nominated by the president and confirmed by the Senate who decide whether the amount set forth in a consent decree is appropriate.” He said the bureau lowered one $100 million NAL for wireless cramming to $6 million in a decree. “Bypassing commissioners on a question of this magnitude is completely unacceptable,” he said. “In other instances, I am concerned that consent decrees are being used to avoid judicial and commission scrutiny of dubious cases.”
Pai said the $100,000 and $25,000 thresholds for commission-level actions on NALs and forfeiture orders should apply to consent decrees. To speed enforcement matters, he proposed the FCC act on NALs within one year or they would automatically be nullified. And he said commissioners should be able to obtain information from the bureau, while the bureau should update its website to include a way for parties to track enforcement activity through the process.