February 14, 2017 —
Chairman Ajit Pai began reforming the commission’s processes last week, essentially bringing some power back to the FCC Commissioners from the bureaus. Chairman Pai, who was on the losing end of numerous 3-2 decisions during the Wheeler era, is moving quickly to assert his power in the new commission, according to Wes Wright, partner, Keller Heckman.
“Chairman Pai and Comm. O’Reilly thought that the Bureaus were perhaps getting a little too involved in policymaking,” Wright said. As a result of the actions control will be much more concentrated on the eighth floor [the location of the commissioners’ offices] for now with the political appointees.”
In one action, Chairman Pai released a statement that essentially said any fine coming out of the Enforcement Bureau must be approved by a vote of the full Commission.
The inspiration behind the change was the belief at the FCC and on Capitol Hill that the Enforcement Bureau was more concerned with trying to grab headlines and less concerned with actually collecting the fines.
One example is when the Enforcement Bureau fined AT&T $100 million for throttling data rates, which grabbed headlines but probably won’t be paid by the carrier. (It publicly said it wouldn’t pay.) Reining in those fines will make them less political and more effective, according to Wright.
“The amount of forfeitures will go down, and may go down significantly,” he said. “Certainly, a higher percentage is going to be collected because the fines will be issued from the Bureau less to make policy and less to randomly scare certain industries.”
The resulting items coming out of the Enforcement Bureau will be fully vetted and treated more seriously by the Commission.
“From an industry perspective, you are less likely to be randomly targeted by the FCC’s Enforcement Bureau,” Wright said. “At the same time, if you do find yourself in the bureau’s crosshairs you are more likely to pay.”
Related to the Chairman’s statement on Enforcement Bureau activity, Pai stripped all the bureaus’ ability to make substantive changes to items after they have been approved by the Commission, known as editorial privileges. From now on, bureau personnel will only be able to make grammatical changes after a Commission vote.
“Initially, this change will slow the process down because the staff will need to iron out more of the issues before the item makes it to the FCC agenda,” Wright said.
Chairman Pai may loosen the reins on the Commission in time as the staff becomes accustom to his expectations and management style. But in the meantime, expect a more centralized decision making process at the FCC.