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O’Rielly Challenges “Regulation by Citation” Practice

Encourages FCC to seek enforcement, not headlines, through such notices

Federal Communications Commission Commissioner Michael O’Rielly expressed concerns about what he termed “Regulation by Citation” in a recent blog.

He said that some citations issued are an example of the commission’s overreach because “current law prevents the FCC from pursuing a fine against a company that is not generally regulated by the commission, unless it was previously issued a written citation.” Once a citation is issued, the cited is supposed to have an opportunity to meet with the FCC and remedy the situation before a fine is issued. But, O’Rielly says, fines are being issued before the personal interview and before the businesses understand the FCC rules and have the opportunity to come into compliance.

Also, O’Rielly’s blog does not mask his outrage that “businesses are not always informed of citations before they are made public” — sometimes are even outed in the form of press releases before the mailed citation copy arrives to the offender.

Consequently, he writes, “I have opposed the practice on multiple occasions because it is unfair (and unlawful) to expect companies to guess what the Enforcement Bureau might find objectionable. In addition, because such proceedings are shielded from public comment, there is no opportunity for other businesses that could be impacted in the future to object to novel legal theories.” O’Rielly also mentions citations against Lyft and First National Bank as examples of inappropriately breaking new legal ground.

He proposes that the FCC alter its procedures so that citations are not publicized until after the target has had the opportunity to respond to the claims.

O’Rielly also emphasizes the importance of refraining from issuing citations that have no basis in commission rules (and also from treating such citations as precedents in future regulatory moves). He writes that if the commission believes a business’ actions to be unlawful, then it should offer a corrective notice of proposed rulemaking, before taking action.