Pai Changes Policy on Releasing Items; Future Policy Reversals Could Be More Difficult

The move is the latest in a blitz of reversals of policies from the previous administration since Thursday (see 1702030070). Also last week, he said he will in a pilot issue texts of what he asks commissioners to vote on before their monthly meetings. Already, Pai has started to get some Democratic heat, including from Commissioner Mignon Clyburn, and now on some Lifeline moves from other stakeholders.

Pai likely won’t be able to proceed as quickly going forward on reversals, attorneys and communications industry officials told us, since projected reversal targets like net neutrality and the newspaper broadcast cross-ownership will require a full commission vote, while all the recent changes fell under the jurisdiction of the chairman’s office or bureaus. The speed of Pai’s transition to the chairmanship, combined with the number of items approved using delegated authority under former Chairman Tom Wheeler opened up “a rare opportunity” for Pai, said Pillsbury broadcast attorneys Scott Flick and Jessica Nyman in a blog post.

“I pledge that during my tenure as Chairman, my office will share with every Commissioner’s office every item that will be considered at an open meeting before anyone in my office discusses the content of those items publicly or the FCC releases the text of those documents,” Pai said in a statement on his latest process reform move. “For the last few years, we have been concerned that the actions of the chairman threatened the character and integrity of the FCC as a commission,” said House Communications Subcommittee Chairman Marsha Blackburn, R-Tenn. “Among the most troubling was the breakdown in communications between the commissioners, and the chairman’s tendency to selectively release information to the public before sharing it with the rest of the commission.” Pai’s announcement “marks a return to the collegiality and cooperation between commissioners that was once the hallmark of the FCC,” she said.

The moves to set aside commission proceedings on zero rating, Lifeline, political file rules and others were possible because the decisions reversed all happened at the bureau level, most of them relatively recently, said several communications attorneys. His ability to reverse them was facilitated by his quick ascendancy to the chairmanship, skipping over the more typical long confirmation process, Flick said in an interview. If Pai had needed to wait weeks for a confirmation process, the bureau decisions would have been in existence too long to be reversed in the simple method that was used last week, Flick and Nyman blogged. The president can designate a chairman from among sitting commissioners, but a new commissioner would need Senate confirmation before designation.

Delegated Authority

Pai had so many items he could reverse in this way because Wheeler released many items on delegated authority in the last weeks of his administration, Flick and Nyman wrote.

“With Commissioner [Jessica] Rosenworcel departing the FCC in December, leaving the FCC with a 2-2 partisan split, actions by the full Commission in the waning weeks of the Obama Administration became extremely difficult to accomplish,” said the post. “Chairman Wheeler thus utilized the bureaus of the FCC to accomplish via delegated authority various actions that remained on his agenda.” The actions on delegated authority are analogous to executive orders from the White House, Flick said in an interview. They are easier to implement than a full commission vote, but also easier to reverse, he said.

Many of the items reversed by Pai last week were nonbinding interpretations of FCC rules, such as the Media Bureau processing guidelines, said Kelley Drye communications attorney Steve Augustino in an interview. Their reversals had largely a symbolic rather than practical effect, he said. Though the processing guidelines for mergers and acquisitions involving joint sales agreements have been set aside, the rules making such agreements attributable remain on the books.

When the Pai FCC takes on decisions from the previous administration that require a full commission vote to reverse, there may be more give-and-take in the process, said Augustino. Pai repeatedly condemned the use of delegated authority and the Wheeler FCC’s tendency toward 3-2 party-line votes, suggesting he will seek unanimous decisions, Augustino said. To get the votes to make the changes that Pai is expected to seek, he likely will have to compromise, Augustino said. “It remains to be seen whether the orders also represent the ‘first step’ in rolling back other major hallmarks of the previous administration, including the 2015 Open Internet Order and 2016 Broadband Privacy Order, said Augustino and Kelley Drye communications attorney Bradford Currier in a blog post.

Lifeline Critiques

The FCC revocation of nine Lifeline broadband provider designations Friday drew criticism, including from Rep. Frank Pallone, D-N.J., ranking Commerce Committee member. “I’m deeply disappointed by the FCC’s aggressive actions against consumer protections," he said in a statement. "The FCC’s decision to seriously hamstring the Lifeline program -- which helps millions of Americans stay connected through access to basic communications like mobile phones and internet service -- needlessly punishes the most vulnerable consumers. I had hoped that our Democratic committee staff report refuting the exaggerated claims of waste, fraud, and abuse would put a stop to efforts to gut this program." He urged the FCC to "reconsider this baseless action, and get to work helping Americans stay connected, rather than ripping phones from those who need them most."

The National Hispanic Media Coalition also blasted the decision. "We have companies who want to offer thousands of low-income Americans a pathway out of poverty with affordable internet service and it appears that Chairman Pai is standing in their way," said a statement from Carmen Scurato, director-policy and legal affairs. "We are beyond disappointed that the new Chairman has chosen to direct precious Commission time and resources to an action so antithetical to the Commission’s mission -- and so early in his term. If the Chairman wants to make real inroads to bridge the digital divide, he must allow and encourage service providers to participate in the Lifeline Program."

The American Library Association hit both the FCC Lifeline move and an E-rate decision to retract a staff report on the USF school and library discount program. "Reducing options for Lifeline broadband services is a step back in efforts to close the homework gap and digital divide, and is at odds with Chairman Pai’s stated desire to advance digital empowerment," an ALA statement said: The agency should "maintain an accurate and complete historical record. While new FCC leadership may have new policy directions, the public record should not be permanently altered. Governmental agencies must be accountable in this regard. We urge the reversal of the retraction decisions and an agreement that the FCC will not order the removal of any other documents from the public record."