FCC Should Scuttle Plans for October Vote on Privacy, O'Rielly Says

The commission lacks the necessary expertise to address privacy, O’Rielly said. Of the 1,500 staffers, “less than two handfuls” have privacy expertise, he said. That’s in sharp contrast to the level of expertise at the FTC, he said: “I don’t think we have a sufficient grasp of how privacy is done throughout the federal government, not only on the federal government side but on the commercial side -- how it’s being handled.”

The FCC needs much more time to look at privacy and may not need to do anything at all, O’Rielly said. Chairman Tom Wheeler circulated the draft order last week (see 1610060031), saying in a blog post it was developed based on a comprehensive record and consultation with “consumer and public interest groups, fixed and mobile ISPs, advertisers, app and software developers, academics, other government actors including the FTC, and individual consumers to figure out the best approach.”

The communications regulator is likely to take up a new mobility fund and revised wireless data roaming rules in coming months, O’Rielly said. Wheeler, in a keynote last month at the Competitive Carriers Association’s annual meeting, said both would be addressed soon (see 1609200058).

“I heard the chairman say he’d like to do those two items in coming months” and there’s no reason to expect the FCC won’t, O’Rielly said. “The chairman has been very clear that when he announces something, we tend to do it.” O’Rielly cited his concerns about a new mobility fund in a July blog post. “It’s not about finishing it by the end of the year, it’s about getting it right,” he said. O’Rielly also said the chairman has “complete control” of the agency’s agenda.

O’Rielly also slammed the U.S. Court of Appeals for the D.C. Circuit’s decision in the net neutrality case. In what was considered a huge win for Wheeler and the FCC majority, a panel ruled previous Supreme Court decisions gave the commission considerable latitude to determine that broadband is a Communications Act Title II telecom service subject to common-carrier regulation (see 1606140023).

The decision sets a bad precedent, O’Rielly said. “There is a sense of dread, or should be.” Logical reasoning and providing proper notice of a pending decision are no longer required, he said. “The D.C. Circuit has granted virtually unlimited authority to the commission and that should worry everyone in this room.”

“Mark my words, the court’s cursory review in this instance set precedent that will be used again,” O’Rielly said. “It is just a matter of time before a future commission follows the path outlined by this court.” The “shortcuts” the court “blessed” in approving major FCC orders will be repeated in other orders, he said. It's “an end justifies the means approach,” O’Rielly said. “We can skip through procedural steps as fast as possible because they're in the way or unnecessary.”

Almost on a monthly basis, commissioners vote on a pending item “where we have the process being abused,” O’Rielly said. “You see it in the items themselves where they just are not sufficiently cooked.” The commission leadership, not the staff, is at fault, he said. Employees do a good job on the whole, he said. “It is a nearly monthly occurrence and we will pay the costs long term.”

O’Rielly said the FCC doesn’t do a sufficient cost-benefit analysis of items before they’re approved. “The benefit always exceeds the cost,” he said. “It is not cost-benefit analysis, in my opinion.”