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FCC's Pai: Court Ruling Spotlights Bad Process, Outcome

FCC commissioner Ajit Pai said the D.C. federal court's rejection of the FCC's order to make sensitive programming contracts and work product available to hundreds of third parties was a "case study" in how "bad process leads to bad outcomes."

Pai has been a strong critic of both FCC process and outcomes, notably the Title II reclassification, preemption of state broadband laws, and the FCC decision to modify FCC protective orders to make the documents available.

"I opposed the Commission’s decision for both substantive and procedural reasons, and I am pleased that the court shared my concerns," he said.

"Throughout this dispute, the Commission failed to explain why it was necessary to disclose these sensitive documents to third parties or why it was necessary to thwart companies objecting to such disclosure from obtaining judicial review."

In that decision, the court pointed to that lack of explanation as a key to overturning the vote, which had been on a party line with Pai and fellow Republican Michael O'Rielly dissenting from the decision, as well as criticizing the speed with which it was made and the process.

"The cursory two-page order that was vacated by the D.C. Circuit today was presented to me at 1:39 PM on November 10, 2014. I was then told that I had to cast my vote by the end of that day; otherwise, the confidential documents would be disclosed to third parties," he said. "No justification was provided for this extremely truncated review process. Based on today’s D.C. Circuit decision, it is obvious that the Commission’s order would have benefited from more thoughtful deliberation."

Pai's criticism of the FCC order was reflected in questioning at an April 30 FCC oversight hearing in the House Communications Subcommittee.

Rep. Mike Pompeo (R-Kan.) brought up the case during questioning of FCC chairman Tom Wheeler, and echoed Pai's concerns. The congressman asked: "On Nov. 10, 2014, did you circulate an order to your fellow commissioners regarding the Comcast/Time Warner Cable and AT&T/DirecTV merger proceedings and tell your fellow commissioners that if they did not cast their votes by the end of that day that third parties would be provided with access to those contracts."

Wheeler said he was not sure he understood the question. Pompeo went on, saying: "There were a series of contracts. It's my understanding you told your fellow commissioners that if they did not vote, cast their votes by the end of the day, on an issue that you would release these contracts..."

Wheeler broke in to ask "what issue," looking perplexed. Pompeo said he was not sure of the issue, would follow up, and the issue was dropped. The court has now resolved it, concluding that the FCC did not sufficiently explain to the court the rush to release the documents.

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.