Pai: FCC Partisan Rancor 'Unprecedented'

Republican FCC commissioner Ajit Pai said the partisan rancor at the FCC over the past year-plus has been unprecedented in scope, pointing out on C-SPAN's Communicators series now about half of the public meeting votes are strictly along party lines, while that number was more like 10% under the previous chairs. He said that on enforcement matters, there have been more party line votes in the last 14 months than in the previous 43 years.

During an interview for the program, Pai took aim at the FCC's recent requests for data from and meetings with Comcast, AT&T and T-Mobile about various zero-rating and sponsored video broadband-related business plans as they pertain to new FCC Open Internet rules.

"What we are now seeing is that net neutrality has morphed from a concern about last-mile connectivity to the FCC micromanaging all kinds of business plans and hauling in companies to flyspeck whatever innovative service offerings they might choose to put out into the marketplace."

In November, FCC chairman Tom Wheeler signaled he thought T-Mobile's Binge On service, that carved out some video from its data caps, was a "highly competitive and innovative service," Pai pointed out, soon after which "two FCC bureaus are hauling in that same company to justify its offering and expressing that there had been some concerns raised about this."

He called that the "very definition" of regulatory uncertainty, suggesting the FCC's answers changed in the political winds.

Pai said the FCC should not have called the companies in at all, and that regardless of whether the FCC takes any action, it has set the precedent that "if a band of special interest groups inside the Beltway decide to protest a particular offering, the agency is going to jump to the tune."

Asked about the broadcast incentive auction, Pai said he did not oppose the FCC releasing in anonymized form an aggregate total of how many broadcasters were participating in the auction. The FCC has signaled it has no plans to do so, although broadcasters are free to announce their participation, as some already have.

Pai called the FCC's recent conclusion that wired (and earlier, wireless) broadband was not being deployed in a reasonable and timely fashion "the ultimate in kabuki theater." That is because under Sec. 706, a negative finding gives the FCC more regulatory authority over broadband, he pointed out, saying it was just the latest of an ongoing "shifting of the goalposts" depending on what the policy goal is—faster than dialup in one context, 10 Mbps in another, 25 Mbps in another.

He said that was not appropriate, and in fact was arbitrary and capricious, which is the legal test for an illegal agency action, and was a "discredit' to the agency.

Pai said he has seen data that shows broadband deployment is exploding. But in the same interview Pai also said there were rural and hard-to-reach areas he had visited—Alaska, Mississippi—where they were yet to share in that broadband bounty.

The FCC under Wheeler, and his predecessor, Julius Genachowski, have signaled that deployment won't be reasonable and timely until it is essentially ubiquitous given the importance of broadband to healthcare, education, finding a job, building a business, and most everything else.

Asked whether the FCC was set up for the 21st Century, Pai said in terms of process, no, and that there was some congressional help on the way in terms of legislation. But he said one of the things the FCC could do without waiting for Congress was to create an FCC "dashboard," a website where anyone could see how many consumer complaints have been filed at any one time, how long it takes for the FCC to resolve petitions, how petitions were resolved. He called those basic metrics consumers want.

The FCC just last month launched what it said was a more consumer-friendly website, but it is still soliciting input on how to improve it. Clearly Pai has some suggestions.

A spokesperson for the chairman responded to the comments.

“Since arriving at the Commission, Chairman Wheeler has tackled complex issues resulting in more competition, strong protections and improved access to networks for consumers," said an FCC spokesperson, adding that during the first two years of the chairman's tenure, "88% percent of votes have been unanimous.”

An official in the chairman's office speaking on background put the votes in context, saying that Wheeler has been one of the most active chairmen in recent memory, often tackling complicated and contentious issues (those have included network neutrality and merger review processes). The source also pointed out that minority commissioners typically concur on notices of proposed rulemakings (which are not final orders) and now regularly dissent, boosting the party-line vote total.

As to the critique of the FCC outreach on zero rating plans, a spokesperson for the chairman said: “In November, Chairman Wheeler said the FCC planned to keep an eye on these offerings as they evolve. In December, Chairman Wheeler asked the Wireline Competition Bureau and Wireless Telecommunications Bureaus to collaborate on an informal review of new offerings—so the Commission is fully informed about marketplace developments. As the Chairman has made clear, this is not an enforcement action or investigation. Direct dialogue with companies is an important way in which the Commission can watch and learn, and consistent with our approach in the Open Internet Order.”

John Eggerton

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.