Post-O'Rielly FCC Seen as Possibly Less Strident on Pirate Radio, LFA Issues

O'Rielly was very open about his objections to the existing LFA rules regime (for example, see 2007290039) and the agency could be less strident on such issues without him since the other members of the GOP majority, Chairman Ajit Pai and Commissioner Brendan Carr, are less vocal on those topics, said a lawyer with state and locality regulatory experience. O'Rielly was seemingly the driving force behind last year's LFA order (see 1908010011), and whether to count public, educational and government channel capacity toward franchise fee caps might not have been pushed as much without him on the commission, the lawyer said. PEG interests now hope he doesn't push it in his time remaining, we were told.

Local government interests and O'Rielly often didn't see eye to eye, but the other majority commissioners aren't notably different, said Alliance for Community Media President Mike Wassenaar. However, the major issues in the near future aren't in FCC direct power anyway, like the legal challenge before the 6th U.S. Circuit Court of Appeals challenge to the LFA order, with a ruling likely coming next year, he said.

Whoever replaces O'Rielly will surely have some different priorities, even if a reliable Republican vote, Wassenaar said. "They all have different approaches and interests," he said. "Let's not pretend they are all identical.”

Public Knowledge Senior Vice President Harold Feld emailed that O'Rielly's major initiatives on his own have been pirate radio enforcement and AM revitalization, but he hasn't proposed anything requiring commission action. Feld said pirate radio enforcement might slow down without O'Rielly driving it, though that seems unlikely. Added PK Legal Director John Bergmayer, after O'Rielly a 2-2 party-split FCC would likely focus largely on consensus items.

Echoed ISP lawyer Jonathan Allen of Rini O'Neil, it's unlikely an O'Rielly successor can be confirmed during this session of Congress, and having only four commissioners raises the odds of tie votes. "These kinds of timing and process issues will affect how the FCC prioritizes and votes on matters over the next few months," he emailed.

O’Rielly has been seen as interested in broadcast industry issues throughout his time on the FCC, broadcasters and broadcast attorneys said. “He’s been very open to lots of issues,” said Wilkinson Barker broadcast attorney David Oxenford. Chairman Ajit Pai is strongly associated with AM radio and Commissioner Brendan Carr has recently advocated for some broadcast items (see 2008060072), but O’Rielly was considered more broadly pro broadcast industry, they said. O’Rielly made industry-side positions against pirate radio (see 1807190055) and the kidvid regulations (see 1907190057) part of his brand, regularly spoke about the nascent and arcane ATSC 3.0 standard, and in 2018 wrote a 2,100-word blog post refuting critics of Sinclair Broadcast.

Having a commissioner take an interest in a specific issue can be a big asset at the FCC, New York State Broadcast Association President David Donovan said. The agency covers a wide swath of issues, so a commissioner repeatedly surfacing and calling for action on a topic such as pirate radio leads to quicker action, he said. Replacing O'Rielly with a commissioner without a similar focus could make it more difficult for broadcasters to get their issues addressed, several attorneys agreed. “I think it would make it a little harder,” said Fletcher Heald broadcast attorney Anne Crump, who works on children's TV issues.

Other broadcast attorneys said O’Rielly's leaving or taking a less active role likely won't have much practical effect for broadcasters because there aren’t many large issues for the industry between now and the election. The kidvid rules have been approved and are unlikely to be resurrected even by a Democratic-controlled FCC, and the enhanced pirate radio enforcement O’Rielly pushed for has been enshrined in legislation, a broadcast attorney said. Some FCC action on broadcast ownership is possible but unlikely to shift based on O’Rielly’s participation, an industry attorney said.

Some see the Pai administration trying to push through items on its agenda in the remaining fall meetings while it still has a 3-2 majority. The localities lawyer said the FCC could try to speed up a wireless infrastructure draft order this year, though it's not clear something could be pulled together that quickly at the staff level. The FCC approved an NPRM 3-2 in June (see 2006090060).

Don't expect any big changes between now and when O'Rielly leaves the agency, presumably late this year, since there's already a media modernization item on most months' agendas at his urging and with Pai's support, a media lawyer said. Several are already in the hopper for future meetings, the lawyer said. Added a cable outside counsel, O'Rielly's Republican replacement is sure to have a similar deregulatory mindset, though maybe more in line with the White House on interpretation of Section 230 of the Communications Decency Act.

The FCC is unlikely to tackle controversial items anyway in the short period left this year, the media lawyer said. O'Rielly had long pushed for media ownership deregulation, but there's not a clear opportunity to tackle that, with the Supreme Court perhaps taking up the 3rd U.S. Circuit Court of Appeals’ Prometheus decision, he said.