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House Subcommittee Grills FCC on Current Efforts

Commissioners meet before Energy and Commerce Committee to discuss broadcast, broadband and Enforcement Bureau issues

Members of the House Energy and Commerce Committee alternately praised and scolded the five members of the FCC at an oversight meeting on Nov. 17, calling on the commissioners and the chairman to take stronger steps to improve transparency and to rein-in the commission’s internal but very public squabbles.

To ensure more active steps are taken, the day before the House of Representatives passed the FCC Process Reform Act of 2015, which is designed to improve processes at the FCC to ensure more transparent decision-making.

Committee Chair Greg Walden (R-Ore.) began the oversight meeting by chiding FCC Chairman Tom Wheeler for the lack of compromise between members of his commission and the strong disagreements that have been aired in public. He also expressed frustration that the FCC has “misunderstood, or worse, obfuscated or obstructed” the legislative intent that Congress has passed to the commission.

“Sadly, it’s clear by various actions of this and previous commissions, Congress has delegated too much flexibility and authority to the FCC,” Walden said. “We have to do a better job when we write these bills so as to limit FCC authority, not expand it.”

Commissioners touched on key topics that have crossed their desks since the full commission last met with the Energy and Commerce Committee — from the passage of the AM Radio Order to public safety to foreign ownership issues — but it was Commissioner Ajit Pai who called out his commission on a number of shortcomings, including his concerns with the FCC Enforcement Bureau.

“The enforcement process has gone off the rails,” Pai said, pointing to what he calls arbitrary forfeitures and a focus on issuing headline-grabbing fines, regardless of the legality of those actions.

The bureau’s enforcement approach should be to establish rules in advance, analyze all facts relevant to an allegation, determine liability and then assign penalties, Pai said. Instead, he said, “the FCC plucks forfeiture out of thin air.”

Commissioner Michael O’Rielly agreed. “There are a number of problems, including selective prosecution and getting information,” he said. “I am troubled with how unresponsive they are.”

Chairman Wheeler responded to criticisms on the flow of information from the Enforcement Bureau by saying that the bureau is dealing with “sensitive information and info that can move markets,” meaning that law enforcement information must be released judiciously.

“I have a security clearance comparable to any member of the Enforcement Bureau,” Pai responded. “I’ve been privy to some of the most sensitive government operations there are, far more sensitive than deciding whether Lyft or Uber should get a citation from the Enforcement Bureau.”

The Energy and Commerce committee itself has expressed similar concerns about the Enforcement Bureau, and in October, leaders of launched an investigation into the management of the Enforcement Bureau.

As he has done previously, Chairman Wheeler asked the committee to consider offering the FCC legislative support against pirate radio operators. “It’s whac-a-mole right now,” he said. “Congress could make it illegal to aid or abet pirate radio operations and deny them the opportunity to operate in this way. This would be a significant means of thwarting the continued growth of pirate radio.”

During the session, Rep. Bill Johnson (R-Ohio) highlighted concerns his office had with the handling of the FCC’s recent IT upgrade and the struggles that ensued.

Johnson also criticized the commission for privacy breaches that were revealed in a lighthearted video parody that was released by FCC staff following the agency’s IT servers move.

“In these videos the commission reveals several pieces of non-public information — names and license plates of non-FCC employees, names of servers, and many pictures from the specific setup the FCC has in its new data center,” Johnson said. “It’s a little hard for me to take seriously the FCC as an agency that wants to be a privacy and cybersecurity regulatory [agency] when it sacrificed security at the altar of good PR.”

The three-hour oversight meeting also addressed upcoming spectrum auctions, the Universal Service Lifeline program, copyright issues and municipal broadband growth. Video of the hearing can be seen here.